Why 2 Law Students Appointed Themselves Guardians Of The Supreme Court

07 Dec 2020 6 min read  Share

What motivated two law students to file separate criminal contempt-of-court petitions against a comedian and a stick-comic illustrator for tweeting criticism of the Supreme Court? A recent high-profile contempt case and desire to protect the judiciary from “criticism” and “negativity”

Aditya Kashyap, 22, is a final-year law student.

New Delhi: Two law students who filed separate contempt of court petitions against a comedian and a web-comic illustrator for satirising the Supreme Court from their personal Twitter handles said they were inspired by the apex court’s 31 August conviction of lawyer Prashant Bhushan for his tweets about the Chief Justice of India, S A Bobde.

Bhushan’s case led the law students to believe that views expressed on Twitter, however satirical, can be penalised for criminal contempt of court, using a 49-year-old law.

“The Prashant Bhusan case opened the door for initiating contempt proceedings,” Skand Bajpai, 21, a fourth-year law student of Bharati Vidyapeeth (Deemed) University, Pune, who started criminal-contempt proceedings against comedian Kunal Kamra, told Article 14. “The law has been there for long, but this case opened up the doors.”

Bajpai wrote a letter to the Attorney General of India (AG) K K Venugopal on 13 November 2020 alleging Kamra’s tweets were meant to “shake the trust of the public in the apex court”. He said Kamra’s Twitter response after the Supreme Court granted bail to Arnab Goswami, was “an attempt to scandalise the court and to lower its authority”.

Two weeks later, on 1 December, the AG cleared another request for contempt proceedings against illustrator Rachita Taneja, who produces a feminist web comic called Sanitary Panels. This time the request came from Aditya Kashyap, 22, a final-year law student at the Rajiv Gandhi National University of Law, Patiala. He said he felt strongly about issues of “national interest”.

One of the panels that was responsible for Kashyap's complaint against its creator Rachita Taneja/SANITARYPANELS

While Kashyap is drawing up the contempt petition, Bajpai has already moved the Supreme Court against the tweets made by Kamra.

“What can we do? We have to abide by the law as it stands today,” said Kashyap. “I simply adhered to the principles of criminal contempt upheld by the Supreme Court in the cases of Arundhati Roy and Prashant Bhushan. I simply applied the law as taught to me by my professors.”

“The law allows me to move a contempt petition,” said Kashyap. “If I find something to be contemptuous or controversial, I’m well within my rights to make a request to the AG to initiate contempt proceedings.”

Article 14 asked both law students why they invoked contempt of court for satirical speech. Both have a history of approaching the court, both were motivated by personal belief, and both do not appear to have given the matter much thought or reason.

Both Bajpai and Kashyap were primarily aggrieved by the fact that, as far they understood, the disputed tweets tried to insinuate that the SC owes allegiance to or is affiliated to the ruling party.

The attorney general took note of this tweet by Kunal Kamra/TWITTER

While they both agreed that the judiciary should not be immune from criticism, they believed any form of criticism that is not "constructive" would amount to contempt as it attacked the very root of the institution.

Section 2(c) of the Contempt of Court Act, 1971, defines criminal contempt “as any publication that scandalises, lowers or tends to lower the authority of the court”, or “which obstructs the due course of any judicial proceedings or administration of justice”. Under section 15, anyone can launch contempt proceedings after receiving the AG’s consent.

Although established judicial practise suggests that the provision for criminal contempt should be invoked sparingly, the Supreme Court recently revived the debate on this law by convicting Bhushan.

The Litigant And The Nationalist

Bajpai, who is from Kanpur, is interested in the area of cyber crimes and regulation of right to privacy. He believes that everyone has the liberty to express themselves online, but that restrictions must be imposed when “fringe groups” use this liberty to spread “negativity” in society.

“Negativity is an act that divides the society, it proliferates secessionism,” Bajpai said while defining fringe groups as those who "exploit the fault lines of society to spread negativity".

Skand Bajpai, 21, is a fourth year law student/FACEBOOK

Kashyap is the co-convenor of the Think India foundation, which hopes to “bind students with an Indian nationalistic string” and aims at “national reconstruction”. He is proud of his “gurukul” schooling—a modern version of ancient Indian spiritual school systems—and believes hate speech made to "divide the social fabric of the country and to undermine the institutions of democracy" is an issue of national interest.

Both the law students have routinely approached the courts for issues that aggrieve them. While Bajpai filed a public-interest litigation in Oct 2020 before the Supreme Court about the right to privacy and cyber crimes, Kashyap approached the Punjab & Haryana High Court for grievances against his law university.

Both believe in the concept of “let the court decide” and said only the judiciary could resolve controversies. Neither of them engaged with the person making the allegedly contemptuous statement before starting lawsuits.

Personal Belief Vs Reasoned Assessment

Asked how they decide the line between criticism and contempt, Bajpai said the threshold was “substantive damage” and “imminent danger”. Kashyap failed to go beyond ambiguous and vague words used in the contempt law, such as “scandalising the court” and “prejudices judicial proceedings”.

“I was moved by the heart and not by the head,” Bajpai said, “I go by my basic logic, everyone has their own reasons. In my mind I thought he (Kamra) crossed the line… I did that based on my own understanding… I don’t have distinctive reasons for doing that, it mostly depended on how I felt at that time. There’s no particular reasoning that I followed. It was a decision taken at that moment.’

Bajpai said he “used to be enthusiastic” about the politics of former Bharatiya Janata Party Prime Minister Atal Bihari Vajpayee, but he has "serious reservations" about the functioning of the current BJP-led National Democratic Alliance government. He said Prime Minister Narendra Modi’s government was “authoritarian, manipulates facts and participates in appeasement politics".

Despite agreeing that India’s apex court has been intolerant towards criticism, Bajpai did not believe his decision to move the contempt petition was wrong. While he thought the SC erred in convicting Bhushan for criminal contempt, he said his decision to seek contempt action against Kamra would not amount to further stifling of dissent by the SC.

Bajpai said that he did not think his contempt petition would divert the attention of the court from more important issues, such as Parliament’s abrogation of article 370—the constitutional provision that allowed the accession of the former kingdom to India—which the court has been hearing since December 2019; a challenge to India’s opaque electoral bonds, being heard since April 2019; and hundreds of pending habeas corpus petitions of Kashmiris incarcerated without trial for more than a year since 5 August 2019, when article 370 was removed.

"I want the Supreme Court to reject my contempt petition,” said Bajpai, who interned with Solicitor General of India Tushar Mehta in February 2020. “So that a message can go out that the court is magnanimous.”

Despite acknowledging that there was a substantial difference between a factual statement and a satirical cartoon, Bajpai said even a cartoon could be penalised if “it is prima facie contemptuous of the court”.

“How could she do that… how could she call SC the Sanghi Court of India?” said Kashyap of Taneja, the illustrator. “How could she see SC from the lens of ideology; how could she say that SC is in hand and glove with Arnab Goswami… when the judgment is out, attributing any motive to the judiciary is contemptuous.”

Kashyap said even in criticism, “one has to be respectful of the Supreme Court”.

Literal And Not Critical Assessment of Law

When asked about their view of the impact of invoking vaguely worded contempt law on the constitutional rights of equality and freedom of speech, both said they were not obliged to uphold the right to equality.

“Even if it (contempt law) violates article 14, well, I’m not the state, so it’s not binding on me,” said Bajpai. “It is practically not feasible for me to take everyone into account. When this goes to the court, and if the court finds it reasonable, it will implead everybody.”

While Bajpai did agree that the contempt law, in some ways, violated article 14 of the Constitution when selectively invoked, Kashyap stuck to the literal interpretation of the law.

Kashyap said law students should listen to their conscience and should approach the judiciary if they believe that some wrong has been inflicted on the society. “We’re not just the future of the nation, but also the aware citizens of today,” he said.

Bajpai said judges worked “tirelessly” and that should be respected.

(Karan Tripathi is a lawyer and a researcher in the field of criminal justice.)