Kunal Kamra Contempt Case: What did the A-G Say? What Happens Now?

Attorney General KK Venugopal, on Thursday, 12 November, gave his consent to initiate criminal contempt of court proceedings against comedian Kunal Kamra for his tweets about the Supreme Court.

The Attorney General's consent is needed for a contempt petition filed by a third party to proceed, under both the Supreme Court's Rules on contempt proceedings, as well as the Contempt of Courts Act 1971.

A-G KK Venugopal went through the list of tweets made by Kamra that had been listed in the request and found that two of them "are not only in bad taste but clearly cross the line between humour and contempt of the Court."

These two tweets read:

• "Honour has left the building (Supreme Court) long back."
• "The Supreme Court of this Country is the most Supreme joke of this country."

A third tweet that the A-G felt constituted criminal contempt was one where Kamra had shared an image of the Supreme Court building dressed in saffron colours with the BJP flag on top instead of the national flag. According to Venugopal:

“This is a gross insinuation against the entirety of the Supreme Court of India that the Supreme Court of India is not an independent and impartial institution and so too its judges, but on the other hand is a Court of the ruling party, the BJP, existing for the BJP’s benefit.”

While he found the other tweets to be "highly objectionable" as well, he left it to the apex court to decide whether they too amounted to criminal contempt.

The A-G concluded by pointing out that people today believe that they can condemn the Supreme Court and its judges by exercising their freedom of speech.

“But under the Constitution, the freedom of speech is subject to the law of contempt and I believe that it is time that people understand that attacking the Supreme Court of India unjustifiably and brazenly will attract punishment under the Contempt of Courts Act, 1972.”

A-G Venugopal

What is Criminal Contempt & Who Takes Action?

According to The Contempt of Court Act, 1971, Criminal Contempt means the publication of any matter or the doing of any act 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.

The Supreme Court has the power to take action where a person has committed contempt of it in several different circumstances.

The most obvious one is where a person commits contempt in view or presence or hearing of the apex court – in which case the court can take it up immediately.

The other circumstances are where someone commits contempt outside the court, whether through comments in the press, or on social media, at a public gathering or on television. In such cases the court can take up the issue suo motu (as in the Prashant Bhushan case), or after a petition filed by the Attorney General or the Solicitor General.

Additionally, a contempt case may also arise from a petition filed by any person with the court. Where this is an allegation of criminal contempt of court, then the Attorney General or Solicitor General has to give their consent in writing to the filing of the contempt petition.

Attorney General KK Venugopal recently refused to grant consent for initiation of criminal contempt proceedings against actress Swara Bhasker and journalist Rajdeep Sardesai, for comments about the Supreme Court. He also declined to grant consent for contempt proceedings against Andhra Pradesh chief minister YS Jagan Mohan Reddy, in connection with his letter to the Chief Justice of India, released publicly, which included allegations against a senior judge of the Supreme Court.

Next Steps Regarding Contempt Pleas

If consent is granted, however, as is the case with the complaints against Kunal Kamra, then the criminal contempt petitions by a 'third party' can be filed in the Supreme Court. These petitions have to be supported by an affidavit and copies of all the statements (including tweets or other social media posts) which disclose the alleged offence.

The person being accused of criminal contempt has to be given an opportunity to file their reply and affidavits, and then the matter can be heard, whenever listed by the Supreme Court. The Chief Justice of India, as always, will assign which judges will hear the case, even if the contemptuous statements reference them.

While the Supreme Court has its own Rules for the procedure and has significant discretion when it comes to contempt matters, it normally follows or at least is guided by certain provisions and guidelines set out in the Contempt of Courts Act 1972 (though it is not bound by this law). These include those under Section 13 of the Act, that:

1. the accused should be allowed to argue truth as a defence (if the court is satisfied this is a bona fide request)
2. the guideline that a sentence shall not be imposed on a person convicted of contempt "unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice"

Once the hearings are over, the court then decides whether or not to hold the alleged contemnor guilty of contempt of court.

If the person is convicted, then they can be sentenced to up to six months in prison (again, the SC can potentially give a higher sentence), or a fine, or both. The accused may be discharged or the punishment awarded remitted if the accused makes a bona fide apology to the satisfaction of the court.