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SATIRE AND CONTENPT: AN ANALYSIS
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SATIRE AND CONTENPT: AN ANALYSIS
AUTHORED BY - RASHMI SINGH
Introduction
To Contempt Law
The law of contempt—both criminal
and civil—has significantly changed through time from being
seen by a court in England
more than 250 years ago as an
inherent power of the judiciary[1].
For example: from the acquittal of a law minister over scandalous remarks[2] to simple inquiry
by a traffic constable as to whether the red light on the hood of a
Judge's car was authorised[3];
the use of contempt law in I.R.S. in
order to witness this evolution, we must first leave the contours of its origin
and travel to India.
The law of criminal contempt, however, is
without a doubt the most contentious of the two types of contempt, as we will see throughout this essay. It is
important to note that, despite the elimination
of criminal contempt in other common law countries like the United Kingdom (the honourable authors of this law)[4],
the Indian judicial system still provides a safe haven for the practise
by making the necessary adjustments along the way and, in the truest sense, by pushing it to its limits.
One cannot help but wonder how long the judiciary
can test its limits given that this "apparent" draconian law continues to be upheld in the highest levels of
the Indian judiciary, especially after much
has been said against it[5].
However, one can test these limits for the purpose of academic debate.
Therefore, I will briefly attempt to argue in this
article whether or not a sarcastic remark made
against the judiciary under the guise of freedom of speech and
expression could result in criminal contempt of court in order to identify said
border.
This discussion shall be accomplished by
compartmentalising the essay in three distinct parts: In the first part, I resolutely establish that free speech is a
fundamental right of every citizen; but at the end of the day, it is not absolute, but only limited,
and one such limitation comes in the face of criminal
contempt; ensuingly, in the second part of the essay, I seek to demonstrate how
satirical references are a new form
of free speech, and consequently, I conduct a legal analysis to test the limits of contempt law to see if satire
could amount to criminal contempt of court; thereafter, and finally, I conclude by recalling the
investigated points and strongly emphasising upon the lenient application of this law to counterbalance the accreditation and abrogation
of free speech.
PART ONE: Free Speech
& Criminal Contempt Of Court
Freedom of Speech
& Expression: Everchanging, but Essentially Fundamentally Limited
The right to free expression is regarded as a crucial
component of participatory democracy and has been
said to be the cornerstone of all democratic organisations[6].
In light of this, the fundamental purpose of such a right is to grant an individual the freedom to express their
own view of society.[7]
This would not only highlight the system's
limitations but also stop one-sided information, disinformation, misinformation, and non-information, which has the effect of making a population of misinformed
citizens and turning democracy into a farce.[8]
Scandalizing the Majesty of Court: Criminal
Contempt
With this in mind, it would be appropriate for us to
understand that the law of criminal contempt
is legal despite
Article 19(1) of the constitution. The fundamental right
of free expression must be understood and valued in light of its
exception.[9]
In this context, "scandalizing the court" must be understood in accordance with section 2(c)
of The Contempt of Court Act, 1971, which defines criminal contempt of court as an insult to the majesty of justice
that is intended to erode judicial authority and public confidence in the
administration of justice.[10]
Contempt is also regarded as occurring when someone makes fun of judges—not as people, but as members of the court.[11] In essence, this means that any statement—verbal or written—that disparages the authority of the law or casts
doubt on the court's ability
to hinder the administration of justice will constitute contempt of court.
PART
TWO — Evolution Of Free Speech
And Testing Its Limits
In this particular segment of the
composition, subsequent to establishing satire as a novel (and somewhat
precarious) manifestation of unrestricted expression, I shall undertake a juridical examination to address two relevant inquiries: firstly, does the criminal contempt
statute extend to satire; and secondly, if it does extend, what is the extent of its applicability? To tackle these
inquiries, I will utilise case laws, jurisprudential analysis concerning contempt
law, and a concrete instance
of criminal contempt.
Satire: A New Way of Speech
“Satire is to afflict
the comfortable and comfort the afflicted” — Josie Long
In the case of Ashutosh
Dubey v. Netflix, Inc[12],
the Delhi High Court noted that satire is a form of artistic expression. The literary piece employs techniques
such as exaggeration to satirise its subject.
The statement characterises the subject matter
as a clever, satirical, and frequently hyperbolic representation.
Leslie Kim Treiger
argues that satire
embodies a dual nature of being both fictitious and authentic, and is not to be interpreted literally or taken as a false truth. The essence of satire lies in its critical message, which is concealed
beneath its factual
exterior. The audience
comprehends the fundamental nature of satire and interprets it as a viewpoint rather than a factual
statement.
In relation to the matter of instruments of
satire, the Delhi High Court has pronounced that a method employed in satirical expression to censure a specific
subject or character is to amplify it beyond the conventional limits, thereby rendering it absurd and exposing its flaws.
Moreover, it can be argued that a satirical
representation of societal issues is a prominent method of highlighting
their shortcomings.
Upon analysing these observations in
conjunction, it becomes apparent that satire functions as an artistic instrument that presents
reality in a hyperbolic manner. It is important to note that this portrayal
is not intended to be factual in essence, and therefore, should not be interpreted literally. (as further observed
by the court in Delhi).
Beneath its facade of uncouthness, there
exists a crucial element, a significant communication, if you will, that forms the essence of satire. The utilisation of hyperbole is employed to portray the subject
in a manner that is deemed absurd, thereby highlighting its imperfections to
the general public. The result of such discourse, albeit in the immediate period,
may be restricted to expressions of joy and amusement. However,
when executed effectively, it can have a tangible enduring impact by serving as a conduit
for conveying veracity. From this vantage point,
it seems that there is no hint of doubt in regarding
satire as a novel and potentially impactful mode of communication. To restate,
speech is subject
to certain limitations despite its dynamic
nature.
The Legal Analysis
The demarcation between the utilisation of the freedom of
expression for legitimate purposes and taking
undue advantage of it seems to be exceedingly delicate and occasionally
imperceptible. However, it is an
enduring and ubiquitous phenomenon. Trespassing this boundary would result in the violation of one's basic
rights, and an instance of such infringement arises when an individual engages
in the act of criminal
contempt of court.
As per the analysis conducted thus far, it
can be inferred that satire employs various literary devices, including but not limited to, exaggeration. It is
noteworthy that the political and societal factors
that are inherent in such occurrences are well-known to us. Due to the
inherently unstable nature of
satire, in which one frequently straddles the boundary between humour and
error, and where the line of
demarcation is highly subjective, an individual may inadvertently violate their freedom of expression. The inquiry that
emerges is whether individuals can be subjected to the iron hand of contempt law in the current context. The
forthcoming analysis will address the aforementioned question.
The Kunal Kamra Case
At present, in response to the preceding inquiry, I
intend to utilise the well-known legal action of contempt of court that has been instituted against the
comedian Kunal Kamra. The incident in question
involves Mr Kamra's tweets directed towards the Hon'ble Supreme Court (SC),
which prompted the Attorney General,
KK Venugopal, to initiate Contempt
proceedings against Mr Kamra. The Attorney General
deemed Mr Kamra's
tweets to be in "bad taste" and
emphasised the importance of
recognising that openly attacking the apex court carries
consequences.
Subsequently, Mr. Kamra expeditiously
responded to the contempt notice issued by the Supreme Court. In his response, he articulated a range of cogent,
progressive, and poignant observations that underscored the paramount importance of an individual's right to free speech, particularly that of a comedian.
Although certain aspects of the individual's submission
highlighted the importance of accepting jokes, another
section of the text asserted
that there can be no justification for the
use of humour.Even constitutional offices,
including judicial offices,
are not immune to being the subject
of jokes.[13]
This paper refrains from conducting a
thorough examination of Mr. Kamra's tweets. However, it is worth noting that Mr. Kamra's assertion that democratic
institutions, particularly the judiciary, must unconditionally uphold the fundamental right of free speech in cases involving humour is, in my interpretation and from a legal
standpoint, at best flawed and at
worst misguided.
The case of
Kunal Kamra: The Limits of
Comedic Expression.
The primary objective of a comedian
is to elicit laughter from their audience, and the method they employ to achieve this outcome,
particularly in relation to their preferred medium, may be considered irrelevant. However, this assertion cannot be applied
to speech. Satire is a contemporary
form of humour that extends beyond traditional comedic tropes centred around animals
and nature. Rather,
it is a comical examination of societal issues and the mishaps of those in positions of power. While some individuals may opt to highlight these limitations through
direct discourse, others may
favour a strategy that garners wider attention and appeals to a larger demographic, such as the use of
humour.
In the context of this paper, it is noteworthy that there
has been a significant evolution in legal philosophy
that has expanded the scope of the citizen's entitlement to critique and
enhanced the social legitimacy of the
judicial power, as opposed to the past. Satire is a form of expression that adopts a critical stance towards a person
or organization, with the aim of highlighting their shortcomings. This attribute is widely acknowledged as a
fundamental aspect of the right to free speech.[14]
The expression of satire and critical commentary directed towards the court may
be regarded as a fundamental right of
free speech. As such, these forms of expression hold equal weight
and significance. This
conclusion effectively addresses the initial
inquiry.
The argument put forth by Mr. Kamra that jokes are
entirely immune to contempt law is not a sound
one and lacks persuasive certainty. The argument presented bears resemblance to
the assertions made by Mark Manson, an American author,
who noted in a comparable context that in a democratic and liberated society,
individuals are required
to confront perspectives and individuals that
may not align with their personal preferences. In essence, and to state it
candidly, if a humorous remark
causes offense, there appears to be no recourse available to address the situation.
Moreover, upon initial examination, there seems to be a
flawed assumption supported by an unintentional speculation that a humorous
remark, as a means of communication, and by virtue
of its ability to elicit amusement, cannot be deemed
offensive. This statement is inaccurate.
From a general perspective, it can be argued
that all forms of speech can be categorised into two fundamental types: those that are malicious and those that are
not. A speech devoid of any malicious
intent, regardless of its potentially contemptuous tone or seemingly impolite
written form, falls under the purview of safeguarding free speech, as stipulated in Article 19(1).(a). Speech containing
elements of malice may be subject to legal restrictions under Article 19(2) of
the Constitution. Failure to do so would
result in the elevation of malicious speech, such as a joke, above other forms of speech,
thereby granting the speaker impunity
to express their malicious
intent under the guise of humour. This would constitute a clear violation of
Article 14 of the Constitution.
In essence, a satirical remark
would exclusively pertain
to the court, rather than the court's
function as a justice
institution.[15]
An In-Depth
Examination of the Kunal Kamra Controversy
The law of contempt aims to balance
the safeguarding of two fundamental rights, namely freedom
of expression and impartial administration of justice. Therefore, it is
imperative to approach and comprehend these
two facets with great care.
On one hand, the liberal perspective on
jurisprudence maintains that the dignity of a court is not influenced or weakened by insignificant
remarks made by individuals. On the other hand, an opposing viewpoint disregards the aforementioned perspective and
asserts that the sustainability of
the judiciary as an establishment is contingent upon the persistent public
perception that the judiciary is
characterised by integrity and incorruptibility. In the context of India, it is
believed that the populace places
significant trust in the judicial system, and it is imperative that this trust is not
impeded.
Examining arguments from a neutral
standpoint is necessary as polarising viewpoints do not align
with our objectives.
The sustainability of the judiciary as an institution
ought not to rely on the presumption of its honesty
and integrity, but rather, it should be grounded on the establishment of public
perception through its incorruptibility. Undoubtedly, the effectiveness of a court is contingent upon its operational mechanisms. This perspective is exemplified by the commendation received by several
High Courts in India from the legal
community for their efforts during
the COVID-19 pandemic.[16]
However, it is my humble opinion that the notion that the
grandeur of a court is solely reliant on this
single factor is a significantly erroneous belief. In certain situations,
despite the delivery of just, fair,
impartial, and uncorrupted justice, there may be instances where harsh
responses are expressed under the
guise of free speech, such as comments directed towards the court or in the form of satire. In light of the precarious
situation at hand, and despite the contention of malicious speech,
it is incumbent upon the court to safeguard its authority and reestablish public
confidence in its ability to administer justice.
In accordance with the topic at hand, it is
my assertion that when satire is executed in a sincere manner, it cannot
be deemed as having a defamatory impact on the court, and as per constitutional principles, cannot be restrained.
However, in the event that one attributes motive or behaves with utter disregard for their profession,
where their comedic expression (or a sequence of comedic expressions) has the potential to significantly impede
the administration of justice, in such extreme
cases.
PART THREE
— Final Considerations
Despite the scope of the
application of contempt law that has been discussed so far, in this section
of the article I will attempt to highlight the picture that exists on
the other side of the coin and elaborate
on the subjectivity and mechanical application of contempt law components. I
shall emphasise the necessity
for a lenient approach in contempt
cases as soon as I have done so.
Subjective Application of Contempt Law
According to the SC, a purposeful breach
of duty, disrespect for one's obligations, and defiance of authority
call for the application of the law of contempt and a corresponding punishment.
[37 ]A good test for this type of
obstruction would be to consider whether it makes it impossible or very difficult for the Judges to do their
duties. If not, it is not considered to be contempt of court. The subjectivity of this strategy, however, is a concern.
There has been much discussion regarding the courts' ability to penalise
for contempt, which, as courts of
record, they draw from the constitutional requirements rather than from The
Contempt of Courts Act, 1971 [Act] itself.
As a result, having such a potent innate power that may be applied in a
variety of subjective ways necessitates
careful planning and execution. It should be observed at this point that the
analysis done thus far gives the
appearance that contempt law has a mechanistic application, i.e., that the decision is based on objective factors
like speech that is malicious or not. However, since this is not the case, a satirical allusion could
be made on either end of the argument. The jurisprudence of lenient
application of contempt law steps in to help us here.
The Jurisprudence of Lenient Application
The increase of contempt cases is clearly upsetting the judiciary. Judges
have been encouraged to wield this
authority carefully and not to be overly sensitive, even when falsehoods and
critiques go too far. Subjective
application has made the situation worse, and the type of speech being discussed—satire and jokes—means that it will only become worse. Therefore, even though there
will never be an objective criterion by which we can judge whether a
speech is contemptuous or not, there are some things
that could be taken into consideration.
The
SC has recommended taking into account a few factors, including the individual
making the comment and the desired
goal that is being pursued, in order to determine criminal contempt. In light of the aforementioned criteria, I
contend that, while a comedian may not be entitled to any special treatment because of their
profession—which, incidentally, allows them to criticise a subject
in order to elicit laughter—this factor shouldn't be outright disregarded either.
For
instance, the SC did take into account the distinguished lawyer Prashant
Bhusan's standing as a prominent
legal eminence when considering his contempt case.[17]
Additionally, as stated earlier, satire's intended
function is to highlight the system's drawbacks. This is not to say that satire won't occasionally cross this line, but these
two issues must be carefully considered, and the iron hand of the contempt law should only be used against
the violator—as noted by the SC—when there is
a significant lapse in the strict standards of rectitude in the administration of justice.
CONCLUDING REMARKS
From
the investigation we have done thus far, we have seen that, despite any hint of
malice, remarks against
the court and satirical references made against the court are two species
that share an equal pedestal
and belong to the same genus, i.e.,
freedom of speech
and expression; as a result,
satirical references can also
be considered acts of contempt of court.
Further, it is acknowledged and reaffirmed that comedic satire does not enjoy a special pier on the platform of fundamental rights
and that it could be effectively curtailed, if necessary (thus refuting Mr. Kamra's arguments); however, I argue that such restraint should
only be used when someone's remarks or actions seriously impede the administration of
justice to the point where the judiciary sees no room for exemption.
Further,
it's important to reiterate here that the application of contempt law is
accompanied by a highly subjective scale and can serve as a significant inducement (or deterrent) in the areas of free speech because,
in contempt cases, the court is both the accuser and the judge of the accusation.
As
a result, the application (and the resulting limits) of criminal contempt
essentially come down to the perception
and subjective application of contempt law.
Last but not least,
the ability to punish for contempt of court has been demonstrated to be a reliable safety
valve for judges to carry out their
duties. As a result, the scope of contempt law should only be tested in cases where the contempt has committed a serious offence
while purportedly exercising their right to free speech;
even in those instances, the judiciary must necessarily either ignore
the satirical reference or consider it in light of the constitution.
Perhaps
Justice Markandey Katju's statement that the rights of citizens can only be
viewed as primary and powers like
contempt as secondary in the interaction between freedom of expression and the
power of contempt appears appropriate to the situation.[18]
[5] Mriganka
Shekhar Dutta & Amba Uttara Kak, Contempt of Court: Finding the Limit,
2 NUJS L. Rev. 55, 72 (2009). See also: Sumanta
Banerjee, Judging the Judges, 37 EPW. 919, 919
(2002); Yashika Sharma
& Arvind Sharma,
The Need to Revisit
Anachronistic Criminal
Contempt Laws in India, Bar
and Bench
[10] Arundhati Roy v. Unknown, (2002)
3 SCC 343. See also: DC Saxena v. Hon’Ble
The Chief Justice
Of India, 1996 SCC (7) 21
[11] E.M. Sankaran Namboodripad v. T. Narayanan Nambiar (1970)
2 SCC 325. See also: Brahma Prakash
Sharma, Supra note 33
[13] Scroll
Staff, Full text: ‘Jokes not reality, don’t claim to be so,’ says Kunal Kamra
in reply to contempt notice, Scroll, https://scroll.in/latest/985407/full-text-jokes-not-reality-dont-claim-to-be-so-says-kunal-kamra-in-reply-to-contempt-notice
[15] This
proposition is corollary to the Jurisprudence of applying contempt law only in
those cases where vilification of a judge is
done as a judge, and not as an individual. The rationale being,
vilification of a judge as an individual cannot amount to contempt of court, as it does not obstruct the
administration of justice; however, on the contrary, vilification of the judge
as judge would do so. The key word
here is “justice”, not “judge”. This salutary practice is adopted by Section 13
of the Contempt of Courts Act, 1971
as confirmed by the court in Baradakanta Mishra v. Registrar of Orissa High
Court, (1974) 1 SCC 374 (India). See also: Krishna Iyer, J. in S. Mulgaokar, In re [S. Mulgaokar, In re, (1978) 3 SCC 339 : 1978 SCC (Cri) 402] : (SCC pp. 351-53,
paras 29- 30)
[16] Akshita
Saxena, How Various High Courts Have Been Monitoring COVID19 Issues In Their
Jurisdictions?, livelaw (April. 23,
2021, 9:37 am), https://www.livelaw.in/top-stories/how-various-high-courts-have-been-monitoring-covid19-issues-in-their- jurisdictions-172973
Article Information
SATIRE AND CONTENPT: AN ANALYSIS
Authors: RASHMI SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/11
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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