“Foolery, sir, does walk about the orb like the sun, it shines everywhere.”
—William Shakespeare, Twelfth Night (3.1.39-40)
A couple of months ago, while researching for the article, I came across a book with the unusual title “Fools Are Everywhere” by Beatrice K. Otto. The book is a vivid account of court jesters from across the world which provides a perfect contextual framework to this piece.
The author contemplates that, “It is in the nature of jesters to speak their minds when the mood takes them, regardless of the consequences. They are neither calculating nor circumspect, and this may account for the "foolishness" often ascribed to them. Jesters are also generally of inferior social and political status and are rarely in a position (and rarely inclined) to pose a power threat. They have little to gain by caution and little to lose by candour—apart from liberty, livelihood, and occasionally even life, which hardly seems to have been a deterrent”
In the olden times, the jester was the only person who was considered to be capable of counselling a stubborn king. A closer look would reveal that even in those times whenever the jester spoke about the king it was in reasonable and responsible terms. The most effective technique adopted by jesters was to point out his master's folly is by allowing him to realize it himself. Rather than crossing swords with the king on the issue, a good jester would agree with a faulty scheme so wholeheartedly that the suggestion was taken to a logical extreme, highlighting its flaws. The king could then decide for himself that maybe it wasn't such a good idea after all.
A description of François Rabelais’s Panurge (a character from his book ‘The Third Book of Pantagruel’) encompasses many of the jester's characteristics: "Irreverent, libertine, self-indulgent, witty, clever, roguish, he is the fool as court jester, the fool as a companion, the fool as a goad to the wise and challenge to the virtuous, the fool as a critic of the world."
It is not new that jesters or in the contemporary times – the stand-up comedians indulge in foolery to get their share of attention. Often, the jester gets so carried away by the roaring laughter and applause that it may, in the heat of the moment, cross over certain moral and ethical boundaries. It would be appropriate to state that the jester knows none.The jester is known to use humour, in the form of wit, puns, riddles, doggerel verse, songs, capering antics, or nonsensical babble to shock, surprise and awe.
A befitting archetype of Rabelais’s jester could have been the self-confessed ‘propagandist masquerading as a comedian’ - Kunal Kamra. But, he’s neither a court jester nor a mere fool. Rather, the propagandist-comedian is known for his scathing, scandalous and insinuating tweets at the Supreme Court of India and the judiciary which lack levity, decency and the warmth of wit!
For background sake, Kamra, in a series of tweets had aired his views regarding the Supreme Court and the judiciary with respect to Arnab Goswami’s bail plea in an abetment to suicide case deemed to be in a disparaging manner and amounting to contempt of court.
The censorious treatment of these tweets resulted in Attorney General, KK Venugopal giving his consent for contempt proceedings to be initiated against Kamra.
In the meantime, the farcical vanity of this braggadocio knew no bounds and imploded into a tumultuous rally of tweets including vilifying the then sitting Chief Justice, S.A Bobde. Attorney General KK Venugopal has yet again granted his consent to initiate contempt of court proceedings.
Subsequently, a notice was issued by the Supreme Court of India to the ‘so-called’ comedian asking him why contempt proceedings should not be initiated against him for his contemptuous tweets on the Judiciary.
Kamra on his part refused to retract or apologise for his comments and filed an affidavit which stated, “some people who did not find my tweets funny have approached this court seeking that I be prosecuted [....]”; “I believe there need be no defence for jokes. Jokes are based on a comedian’s perception, which they use to make the audience that shares that perception laugh. These jokes are not reality and don’t claim to be so. Most people do not react to jokes that don’t make them laugh; they ignore them like our political leaders ignore their critics.”
Summarily speaking, he contended that the tweets were published without the intention of trying to undermine the faith of the people in the highest court. He stated in his affidavit that - “my tweets could shake the foundations of the most powerful court in the world is an overestimation of my abilities”.
The question however is not the intent merely but as to whether the published tweets/comments/critique was calculatedly aimed to tarnish the reputation of the court and its judicial officers and thereby lowering the dignity of the court.
Over time, the whole issue has progressed in a manner that has shifted the focus away from the moot point. The debate has created a dichotomy of opinion – one that supports the comedian and unrestricted freedom of speech which I fear may result in an unrestrained tirade of scathing jokes, memes and/or viral content purportedly to raise the conscience of the court and guide its attention to important issues; the other section is a silent observer – the fence-sitter – awaiting this court’s decision on this matter. There’s no middle ground in this controversy.
Furthermore, this is not the first time that the Judiciary has been subjected to criticism. There have been scathing attacks by scribes and citizens from all walks of life and more recently from the emerging band of ‘arm-chair political activists” on social media.
To reduce it to bare bones - the simple fact that needs to be examined is whether an individual has the right to take pot-shots at the highest court and judiciary of the country under the garb of jokes and comedy? Whether it is necessary to draw a line as to how far a person may go in his self-serving interpretation of freedom of speech as envisaged under Article 19 of the Constitution of India before being pulled up for contempt of court based on the law and its interpretation? Do a comedian’s jokes fall within the purview of exceptions to Article 19 (1) (a) of the constitution as provided under Article 19, sub-clause (2) and be treated as contempt of court?
MODESTY AND MAJESTY
The Supreme Court has held that its powers under Article 129 of the Constitution of India is independent and is not subject to Article 19 (1) (a) and when Article 19 (2) excludes the operation of Article 19 (1), trapping speech or expression amounting to contempt, it only does so ex-abudanti cauteld (i.e. by abundant caution).
In Gilbert case, the Privy Council opined that “in order to enable the judiciary to discharge its primary duty to maintain a fair and effective administration of justice, it must, as an integral part of its constitutional function have the power and duty to enforce its orders and to protect the administration of justice against contempts which are calculated to undermine it”.
Liberty of free expression is not to be confounded or confused with the license to make unfounded allegations against any institution much less the judiciary. Any action taken on contempt or punishment enforced is aimed at protection of the freedom of individuals.
A bench of Justices A R Dave and L Nageswara Rao expounded that -
Every citizen has a fundamental right to speech guaranteed under Article 19 of the Constitution of India. Contempt of Court is one of the restrictions on such right.
We are conscious that the power under the Act has to be exercised sparingly and not in a routine manner. […] "If there is a calculated effort to undermine the judiciary, the Courts will exercise their jurisdiction to punish the offender for committing contempt."
It is a matter of legal and academic debate as to what constitutes “majesty of the court” and “undermining the judiciary” and “transgressing modesty and decency”. However, the courts in several leading cases have unequivocally held that free speech is not absolute and much less to be used as a tool to calculatedly undermine the dignity of the court and judiciary.
It has been reiterated that maintenance of the dignity of the courts is a cardinal principle of rule of law and when the criticism results in undermining the dignity of courts and course of justice in the land it must be held repugnant and punished.
Furthermore, for a democratic society to function cohesively and harmoniously, it is crucial that the judiciary functions without fear. While democracy fosters open-mindedness and free speech; the same cannot circumvent the rule of law.
The rule of law is the foundational feature of our Constitution. The law of contempt secures public respect and confidence in the judicial process and provides the sanction for any act or conduct which is likely to destroy or impair such respect and confidence.
Dr Arijit Pasayat, J. in Haridas Das v. Usha Rani Banik , stated most succinctly on the issue of imputing improper motives at the judge or passing scurrilous remarks only because one is not happy with the decision of the court that -
“Judge bashing and using derogatory and contemptuous language against Judges (...) tend to scandalise and lower the authority of the courts and cannot be permitted because, for the functioning of democracy, an independent judiciary to dispense justice without fear and favour is paramount. Its strength is the faith and confidence of the people in that institution. That cannot be permitted to be undermined because that will be against the public interest. Judiciary should not be reduced to the position of flies in the hands of wanton boys. Judge bashing is not and cannot be a substitute for constructive criticism.”
The Judiciary – a soft target on social media?
It is without a doubt that the freedom of speech stands at intersectionality with the right to criticise and deprecate the court and judiciary to the point of lowering the majesty of the court and one would agree that social media provides a haven for those looking to slander and spread malicious and slanderous gossip and Judiciary, unfortunately, has become a soft target for slanderous attacks which far transgresses the limits of decency, morality and good faith.
It is pertinent to note that the Attorney General, KK Venugopal in an interview to NDTV stated that he believed in upholding freedom of speech on social media and he felt that any attempt to curb them could only lead to litigation and this would be very unbecoming of a “healthy democracy”. In another interview, he made it amply clear that consent for initiation of contempt was given only in the extreme cases where it was felt that the derogatory posts on social media were targeted at deliberately maligning the Supreme Court and is an affront to the majesty of the court. It was further clarified by the AG that the sole purpose of granting consent for contempt action by the Supreme Court in such cases was to send out a sobering message to all that the right to free speech on social media should not be abused.
In the Kunal Kamra case, it would perhaps be relevant to state that the action initiated against him so far is not an attempt to curb his freedom of speech and expression; it is to be viewed as an attempt to rein in the abuse of free speech over social media.
Netizens are divided on the issue of whether Kamra’s “jokes” could be considered to be so derisive that it could be tantamount to lowering the authority of the court or interfere with the judicial proceedings, or, obstruct the administration of justice in any manner. Opinions and views expressed over social media are subjective.
The question remains – should the top court be permitted to become a subject matter for a joke camouflaged as a sharp critique bursting with frustration and disappointment which when unleashed in the public domain can engender contempt amongst citizens which may result in loss of faith in the highest court of the country? Do such actions warrant attention or should it be ignored?
Pertinently Justice Krishan Iyer raised this question in Re: S. Mulgaonkar while also formulating guidelines for considering punitive action for contempt –
“Can ordinary citizens do elsewhere, with impunity, what members of Parliament cannot do in Parliament and legislators cannot do in a State Legislature, and, if so, to what extent”?
In my opinion, the judiciary and the majesty of the court are sacrosanct to a thriving and growing democratic country and it needs to be protected from the senseless tirade of self-righteous activists in the garb of entertainers. Calculated attacks that are malicious, scurrilous with the sole intent to lower the majesty and dignity of the court should not be condoned. I firmly believe that public faith in the judiciary would not be bolstered or the judicial system get any better by maligning and frivolously attacking it.
It is also imperative to remember that in moments of turmoil, emergency, conflict, confusion and natural exigencies of the human society, our courts time and again have upheld the human rights and civil rights and liberties when the organs of the government have failed to do so.
I find resonance in these words of Justice Krishan Iyer:
“It would be a sad day for the supremacy of the Constitution and for the Rule of Law, which it implies, if malicious or ill-informed persons, filled with the irrationality involved in the spirit of what Dean Pound called "lynching" or misguided zest or vindictiveness, acting in a manner freed from the restraints of law or reason, were allowed to take upon themselves the task of passing judgments on actions of others particularly of Judges performing judicial functions. That would certainly sound the death knell of what Dean Roscoe Pound calls "judicial justice" and the Rule of Law”.
It is worthwhile to state that should one seek to make meaningful change in society and raise a voice on pertinent issues, the Constitution of India empowers each citizen to exercise its freedom of speech (subject to limitations) and express dissent by taking legal recourse and bringing the attention of the court to legislative actions that are ultra vires the Constitution and/or matters concerning violation of one’s fundamental rights. Rather, fair criticism as long as it does not contravene the law of contempt should be encouraged. But, it does not grant a license to citizens especially those in the position of influence to cast aspersions and make deprecating attacks at the court looked up by approx. 1.3 billion Indians to uphold the rule of law.
It needs no reiteration that on judiciary millions pin their hopes, for protecting their life, liberty, property and the like. Thus, fair criticism of the conduct of a judge, the institution of the judiciary and its functioning may not amount to contempt if it is made in good faith and public interest.
Indeed, to criticise the judge fairly, albeit fiercely, is no crime but a necessary right, twice blessed in a democracy. For, it blessed him that gives and him that takes”. What is permissible is legitimate criticism and not illegitimate insinuation.
While people hope for the Court’s magnanimity on this (supra) contemptuous issue, I believe as citizens of the “free world”, it is imperative that we exercise the right to free speech with circumspection striking a harmonious balance between constitutional values of free speech and dissent and fair criticism while upholding the majesty and dignity of the courts and the judiciary.
After all, in the words of American Lawyer and Politician Robert Kennedy -
“The glory of justice and the majesty of law are created not just by the Constitution - nor by the courts - nor by the officers of the law - nor by the lawyers - but by the men and women who constitute our society - who are the protectors of the law as they are themselves protected by the law.”
 Otto, B. K. (2001). Fooling around the world: The history of the jester. Retrieved February 07, 2021, from https://press.uchicago.edu/Misc/Chicago/640914.html  A French Renaissance writer, physician, Renaissance humanist, monk and Greek scholar. He has historically been regarded as a writer of satire, the grotesque, bawdy jokes, and songs. Retrieved March 16 , 2021, from https://en.wikipedia.org/wiki/François_Rabelais  Otto, B. K. (2001). Fooling around the world: The history of the jester.  https://twitter.com/kunalkamra88  https://www.barandbench.com/news/litigation/tweet-kunal-kamra-finger-bobde-kk-venugopal-consent  Article 19 (2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence  The Contempt of Courts Act 1971. Section 2, sub-clause(c) defines “criminal contempt” as – (c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which— (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;  Article 129. Supreme Court to be a court of record The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself  D.C. Saxena v. Hon’ble the Chief Justice of India, (1998) 4 SCC 409  Gilbert Ahnee v, Director of Public Prosecutions, (1999) 2 AC 294  Pal, S. (2013). The Law of Contempt: Contempt of Court and Legislatures (5th Ed.). LexisNexis  Vishram Singh Raghubanshi v. State of Uttar Pradesh, AIR 2011 SC 2275 (2280): 2011 AIR SCW 3757: (2011) 7 SCC 776  Het Ram Beniwal & Ors v. Raghuveer Singh & Ors. 4 SCC 340 (2017)  State v. Ra, Chander, AIR 1959 Punj 41  State of Harayan v. Bhajan Lal, AIR 1992 SC 604 at p.608  Pal, S. (2013). The Law of Contempt: Contempt of Court and Legislatures (5th Ed.) p. 6. LexisNexis  (2007) 14 SCC 1  (1978) 3 SCC 339  Ibid  R.P. Sethi J in Arundhati Roy, In re, (2002) 3 SCC 343 para 30  Krishan Iyer J (Ibid)  Dr Ariji Pasayat J. in Hari Das v. Usha Rani Banik, (2007) 14 SCC 1, para 1 and 2  Robert Francis Kennedy, also referred to by his initials RFK or by the nickname Bobby, was an American lawyer and politician who served as the 64th United States Attorney General from January 1961 to September 1964, and as a U.S. Senator from New York from January 1965 until his assassination in June 196