The comedian has been suddenly elevated to the status of a national joke-maker because the A-G, like the good Queen Victoria, is not amused. Have we lost our humour, along with smell, in Covid times?
By Justice (Retd) Kamaljit Singh Garewal
Oh come on, Mr Attorney-General! Are you serious? Even if many a true word has been spoken in jest, how do Kunal Kamra’s little Twitter jokes even remotely resemble contempt of court? And that too criminal enough to lock him up for six months? The frightful new disease we are confronted with since spring first destroys the sense of smell, but has sense of humour also vanished?
Kunal Kamra is a comedian. His job is to make people laugh. If people stop laughing, Kamra shall go to sleep hungry. And now he has suddenly been elevated to the status of a national joke-maker because the Attorney-General, like the good Queen Victoria, is not amused.
In a country where 69 percent of the prison population is undertrials, one would think the Attorney-General’s first and foremost duty is to reduce this figure and second duty is to speed up trials. These men and women are those who have either been denied bail or have not the means to furnish it, even though they carry with them the presumption of innocence. The order passed in the Arnab Goswami case shall immensely help these hapless ones. “Facts do not warrant detention, bail to the satisfaction of the Magistrate” is very often the only order that is passed on most bail applications. But it takes weeks and months to secure even this one-liner.
What have really been Kamra’s comments on the Goswami bail order which offended the Attorney-General? Kamra had said that “honour has left the building (Supreme Court) long back” and that the “Supreme Court of the country is the most Supreme Joke of the country”. He had draped the Supreme Court building with the flag of the ruling party, replaced portraits of Mahatma Gandhi and Jawaharlal Nehru with those of Harish Salve and Mahesh Jethmalani. These were found to be really offensive by the Attorney-General and contemptuous, too.
In reality, Kamra has misunderstood the bail order. It has nothing to do with other weighty matters pending in the Court, but strongly emphasises the importance of personal liberty, requiring quick hearing and urgent disposal. This has changed the entire jurisprudence around grant of bail to undertrials. At a bail hearing, the Court does not pass an order of acquittal. Is it not even required to weigh facts but accept them as true and proceed on this assumption? Goswami has not been acquitted. While on bail, he shall be able to prepare his defence, but he may shall still have to face charges to prove his innocence. The question before the trial shall be whether Anvay Naik, an interior decorator, who was owed over Rs 5.40 crore by Shaikh, Sarda and Goswami, had been driven to commit suicide by hanging himself in May 2018. Did these three persons abet the suicide of the deceased? Goswami would say he has all sympathy with the poor soul, but he had done nothing on that day or on any other day to push Anvay Naik over the brink and end his life.
We are actually concerned with Kamra’s fate. Comments by journalists and comedians are never treated contumaciously, bad taste notwithstanding. Way back in 2004, Jon Stewart, a stand-up comedian, published a huge best-seller called America (A Citizen’s Guide to Democracy Inaction). Page 98 contained nine obviously doctored photographs with heads of sitting Supreme Court judges, superimposed on appropriately aged naked bodies. On the next page, readers were invited to cover the Justices with cutouts of his or her robes to “restore their dignity”. Walmart cancelled the order because it “felt a majority of our customers would not be comfortable with the image”. Mississippi public libraries removed the book, but the ban was lifted the next day after the library board received complaints. Had this sort of book been printed in our conservative, decent, and proud country, nothing short of an emergency would have been declared by the Attorney-General. Fit shall well and truly have hit the shan.
RK Laxman was said to have remarked that he respected our politicians very much because they worked hard to provide him topics for his daily cartoons, “Common Man”. But Laxman was not known to have gone near Hon’ble judges or the courts for earning his livelihood. Kamra’s mistake was he lampooned the Supreme Court of India. It would have passed with a few grins of grim judicial faces. It is not known whether the tweets extracted a laugh from Justice DY Chandrachud and Justice Indira Banerjee. Probably they just dismissed the tweets with the contempt they deserved.
But the problem is with our dour Attorney-General. He must have spent many years in the corridors of courts as a young lawyer and heard hundreds of funny stories about happenings there, each fit for a cartoon. Of course, as a senior advocate, the Attorney-General would have been very busy not being able to spare time for the idle prattle of lawyers. Corridors and bar rooms are hotbeds of funny and not so funny, gossipy stories about judges. This is what lawyers do, they discuss gossip, not jurisprudence or philosophy. Many stories reach judges, but no one bothers about such stuff. The serious lawyers get ahead, the non-serious ones stay where they are.
Once FE Smith, later Lord Birkenhead, Chancellor of United Kingdom, had told a judge he could not fathom how divine providence had made him a judge. At another time, he told a judge that a much-talking judge was like an ill-tuned cymbal. The judge retorted that Smith was trying to be offensive, to which he replied: “As a matter of fact, we both are. I am trying to be, but you can’t help it.” Judges must have been very angry, but did the Attorney General press contempt charges?
Centuries ago, reliefs in equity were granted by the Lord Chancellor but much depended on his discretion to give or deny reliefs. A famous lawyer called John Selden, a contemporary of Sir Francis Bacon, had famously remarked: “Equity is a roguish thing; for law, we have a measure to know what to trust. Equity is according to the conscience of him who is Chancellor: as it is larger or narrower so is equity. It’s all one as if they should make the standard for the measure, we call afoot to be the Chancellor’s foot.” Here we are dealing with the Attorney-General’s foot.
Since sanction has been accorded to a set of humourless law students to move against Kamra, no choice is left in the matter. An application for criminal contempt has been filed. The matter shall then proceed in glaring publicity. Kunal Kamra has already declared he shall neither apologise nor pay. It would be a very sad day for our Republic if he is found guilty and sentenced to serve time, howsoever brief. The enfant terrible of the Supreme Court Bar was sentenced to pay a fine of Re 1, but he was found guilty of having committed contempt. This fate also awaits the comedian because no one is amused by his tweets.
—The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York