While granting an interim bail to Arnab Goswami in a 2018 abetment-to-suicide case within a day, Justice DY Chandrachud rightly put the responsibility of the Supreme Court, “Forget Arnab Goswami for a moment; we are a constitutional court… If we as a constitutional court do not lay down law and protect personal liberty, then who will?” However, what is disturbing is the extraordinary fervour it showed in dealing with this issue while turning its back to other cases that involve personal liberty and freedom of expression of other citizens for weeks and months. Irrespective of this, Justice Chandrachud was correct in saying, “If we don’t interfere in this case today, we will walk on a path of destruction” and that a message be conveyed to the High Courts.
The manner and timing of Goswami’s arrest gave an unpleasant odour of political vendetta. Therefore, the interference of the apex court was appreciable, but what is also prominently evident is that the same court has not held itself to its own principle in many other similar instances, be it detentions made on false charges of sedition or the slapping of draconian laws on journalists simply for doing their job, for instance, Siddique Kappan, the journalist from Kerala was arrested on his way to Hathras to cover the news of gangrape and death of a young woman and charged under the UAPA and yet awaits justice from the apex court.
The strange sense of urgency expressed by the court in the case of the Republic TV chief, who shouts each night for the ruling dispensation, and in whose case the almost entire Union Cabinet has lamented regarding the attack on Press freedom is disheartening.
In almost ten cases involving freedom of speech that came before the apex court since the dawn of 2020, in four cases where the court upheld the right or gave relief, the state and the petitioner argued on the same side; and in six cases where there were no relief to the petitioners the state was the defendant and objected.
Apart from that, the apex court routinely presides over the flouting of its own guidelines in sedition cases like the arrest of 19-year-old Amulya Leona in Karnataka for raising slogans, the arrests made across States relating to anti-CAA protests.Now, Attorney General KK Venugopal to the best his judgment has given sanction for contempt proceedings against stand-up comedian Kunal Kamra because his tweets have been perceived as criticism of the Supreme Court regarding its response in the Goswami case.
Given the stand of the SC in the Goswami case, it should ideally reject the AG’s recommendation in the Kunal Kamra case.This reminds of Lord Denning, according to him, the contempt jurisdiction shouldn’t be used to uphold own dignity, for “that must rest on surer foundations”.
According to him, “We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.” In the prevalent times when freedom of expression is at stake and when the court has raised questions about giving benefit of the doubt to the ruling regime, it should refrain from the idea that it isn’t able to take a joke.
Please let Kamra and the likes of him to tweet; let the highest court set the example in respecting freedom of expression and stand for those fundamental principles enshrined in the Constitution.
The rudimentary question which needs to be answered is what is more important, ‘the law of contempt’ or ‘the fundamental right of freedom of speech’ guaranteed to every citizen and which the Supreme Court itself is obligated under the Constitution to protect. The expression of perception of a citizen, if erroneous or irresponsible, shouldn’t be enough to vilify the judiciary and the courts should ignore such statements; and in case if there is a fair criticism, it is important to endeavour regarding making the necessary changes in the interest of the very Constitution the courts are obliged to serve. As Lord Atkin once said, “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
The views of the Constitution Bench of the Supreme Court in Baradakanta Mishra versus the Registrar of Orissa High Court, 1974, still resonate in the walls of the democracy, which said, “....the keynote word is ‘justice, not ‘judge’; the ‘keynote thought is unobstructed public justice, not the self-defence of a judge; the cornerstone of the contempt law is the accommodation of two Constitutional values, the right of free speech and the right to independent justice.
The ignition of contempt action should be substantial and mala fide interference with fearless judicial action, not fair comment or trivial reflections on the judicial process and personnel.”
(The writer is a lawyer and public policy expert and a Distinguished Adjunct Professor of Law and Media Studies at School of Mass Communication, KIIT University. He can be reached at sjyotiranjan3@gmail.com.)