The following article briefly attempts to propound whether a satirical reference made against the judiciary, under the garb of freedom of speech and expression, could lead to criminal contempt of court or not.
By Sanchit Sharma, Himachal Pradesh National Law University, Shimla
Introduction to Contempt Law
From being considered an inherent power of the judiciary by a court in England over two hundred fifty years ago , the law of contempt—both criminal and civil—has evolved substantially over the years.
To witness this evolution, we first must quit the contours of its origin and make our way to India, where, upon a brief examination of its history, we will ourselves bogged down in the myriad ways of its impressionistic application over the years; for instance: from the acquittal of a law minister over scandalous remarks  to mere questioning by a traffic constable as to whether the red light on the hood of a Judge’s car was authorised ; the use of contempt law in India has been egregious at times, arguably subjective, and the spectrum of its implementation has tested the limits of its application.
But the most contested between the two species of contempt, without an iota of doubt, and as we would witness in the course of this essay, is the law of criminal contempt. Pertinent to note here is that while other common law jurisdictions like the United Kingdom (the creditable architects of this law) have done away with criminal contempt , the Indian judicial system, in order to accommodate its application, continues to provide it with a safe harbour by making appropriate amendments along the way; and perhaps in the truest sense, testing its limits.
But since this “apparent” draconian law still prevails in the echelons of Indian judiciary, especially after much has been said against it , one cannot help but wonder how long the judiciary can test its limits; but one can, however, for the sake of academic debate, test its boundaries themselves.
Ergo, in this essay, in order to ascertain said boundary, I would briefly attempt to propound whether a satirical reference made against the judiciary, under the garb of freedom of speech and expression, could lead to criminal contempt of court or not.
This discussion shall be accomplished by compartmentalizing 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 emphasizing 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 of freedom of speech has been said to lay the foundation of all democratic organisations  and is considered a necessary ingredient of participatory democracy.  Considering this, the very essence of such a right is to provide liberty to an individual to project the picture of the society in a manner they so perceive.
This would not only bring to fore the caveats of the system, but it would also prevent one-sided information, disinformation, misinformation and non-information, which has an impact of creating an uninformed citizenry that makes democracy a farce. 
Scandalizing the Majesty of Court: Criminal Contempt
The cardinal right of free speech has to be viewed and appreciated against the background of its exception; bearing this in mind, it would be apposite for us to see that the law of criminal contempt is valid notwithstanding Article 19(1) of the constitution.  In the present context, ‘Scandalising the court’ has to be understood, pursuant to section 2(c) of The Contempt of Court Act, 1971, where a scurrilous attack on the majesty of justice, which is calculated to undermine the authority of the courts and public confidence in the administration of justice, is seen as criminal contempt of the court. 
Additionally, scandalizing judges—not as individuals, but as judges of the court—is also seen as contempt.  Essentially, therefore, any remark, written or oral , which disreputes the majesty of law , or challenges the authority of the court to obstruct the course of justice , to that effect, will amount to the contempt of the court.
PART TWO — Evolution of Free Speech And Testing Its Limits
In this section of the essay, after upon substantiating satire as a new (and a somewhat volatile) form of free speech, I will conduct a legal analysis to answer two pertinent questions: first, is criminal contempt law applicable to satire; and second, if it is applicable than what is the limit of its application? In order to address these questions, I shall employ the use of case laws, jurisprudence revolving around contempt law, and a real-life criminal contempt example.
Satire: A New Way of Speech
“Satire is to afflict the comfortable and comfort the afflicted” — Josie Long
The Hon’ble Delhi High Court, in Ashutosh Dubey v. Netflix, Inc , observed satire to be: “…a work of art. It is a literary work that ridicules its subject through the use of techniques like as exaggeration. It is a witty, ironic and often exaggerated portrayal of a subject” 
Further, Leslie Kim Treiger contends: “satire presents a face both false and factual, it is not understood in a literal sense; it is not believed as false fact. Rather, beneath its factual face lies a critical message, which is satire’s essence. Audiences understand this essence, and read satire as opinion rather than as literal fact.” 
Additionally, on the question of tools of satire, the Delhi High Court has held: “One of the satirical techniques to criticise a particular subject or character is to exaggerate it beyond normal bounds so that it becomes ridiculous and its faults can be seen.” 
Further still, “One of the prime forms of exposing the ills of the society is by portraying a satirical picture of the same.” 
Reading these observations together, satire could be seen as an artistic tool that portrays reality in an exaggerated manner, which is not to be considered factual in nature, and consequently, not to be perceived in a literal sense (as further observed by the court in Delhi). 
Rather, underneath its mask of apparent boorishness lies a vital note, a critical message so to say,
which is the very core of satire. It employs the use of exaggeration to make the subject look ridiculous, and in effect, brings out its blemishes to the naked eye of hoi polloi. The outcome of such dialogue, at least in
the short-term, may be limited to jubilations and laughter; but when done right, it has a concrete long-term effect, as it can act as a delivery system of truth.  Looking from this perspective, there appears not to be a speck of suspicion in considering satire as a new—and dare I say, effective—form of speech. But to reiterate again, speech, even though ever changing, is confined by certain exceptions.
The Legal Analysis
The distinguishing line between exercising and exploiting the right of free speech is apparently very thin, and at times, almost indistinguishable; but it is, nevertheless, ever and present. Upon crossing this line, the transgressor would find themselves in the contours of exceeding their fundamental right, and one such breach occurs when the transgressor commits the criminal contempt of court.
Now, as we observed from the analysis thus far, satire uses, inter alia, the tool of exaggeration, and we are, I submit, no strangers to the volatile elements of politics and society present in such events.  Owing to such volatile nature of satire, where one incessantly treads on the line of funny and flawed, and where the distinguishing line is widely subjective, an individual may breach their right of speech. So, the question arises, can the iron of hand contempt law, in the present context, be laid upon such individuals? The analysis presented forthwith shall address this question.
The Kunal Kamra Case
At this point, and to answer the previous question, I shall employ the use of the infamous contempt of court proceedings initiated against stand-up comic Kunal Kamra.  The brief background behind the event was that Mr. Kamra made some tweets against the Hon’ble Supreme Court (SC), upon which the Attorney General, KK Venugopal initiated Contempt proceedings against Mr. Kamra, saying that the comedian’s tweets were in “bad taste” and it was time that people understood that attacking the apex court brazenly would attract punishment. 
Thereafter, Mr. Kamra made a prompt reply to the contempt notice issued by the SC—and in this reply, he made a variety of sensible, liberal, and heart-touching remarks that emphasized massively upon the necessity of free speech of an individual, but more so of a comedian.
While parts of his submission did bring to fore the desideratum to accept jokes, there was another part where he noted that there can be no defence for jokes…and constitutional offices—including judicial offices—know no protection from jokes. 
While in this essay I shall not partake in a comprehensive analysis of Mr. Kamra’s tweets, I would, nevertheless, point out that the latter submission made by Mr. Kamra that democratic institutions (especially the judiciary), irrespective of any consideration, and in their entirety, should necessarily concede the fundamental right of free speech in the cases of a joke is, in my understanding, and legally speaking, erroneous at best and delusional at worst.
The Kunal Kamra Case: A Comedian Can(not) Joke!
A comedian’s job, arguably, is to make people laugh, and the way they choose to do it—at least in terms of the preferred medium—is, I suppose, moot, but the same could not be said for speech. Satire is indeed a new form of comedy that is not constrained to jokes and anecdotes about animals and trees; it is, in fact, comical humour on the daily life concerns of the society, and the misadventure of those who govern it. While one may choose to bring these caveats to the fore through active dialogue, others might prefer a method that has better reach and attracts more audience, thus comedy.
To add to this, and in the context of this essay, unlike the olden days, there has been a considerable shift in legal philosophy that has broadened the base of the citizen’s right to criticise and render the judicial power more socially valid.  Not to mention, satire takes a critical standpoint towards an individual or institution to highlight their snafus; an attribute which is duly recognized as an essential of free speech.  Satire and remarks against the court, therefore, I conclude, could be considered on an equal footing, i.e., as our fundamental right of free speech, thereby also promptly addressing the first question.
Having said that, the submission tendered by Mr. Kamra that jokes (in an all absolute manner) cannot be smitten by contempt law is not a valid argument and lacks convincing certitude. It appears that this argument shares a similar nexus with the contentions put forth by American author Mark Manson where he observed—in an almost similar context—that in a democracy and a free society we all have to deal with views and people we don’t necessarily like.  Essentially, therefore, and to put it rather bluntly, if a joke offends you—there is nothing you can do about it.
Further, prima facie, there also appears to be a mistaken belief backed by an inadvertent conjecture that a joke, as a medium of expression, and due to the virtue of inducing laughter, could not be scandalous. This, again, is erroneous.
In my humble understanding, and broadly speaking, any form of speech could only essentially be of two types: one with malice and one without malice. Accordingly, a speech that has no elements of malice, no matter how derisive it may sound to the ear or uncivil it may appear on the paper, comes within the ambit of protection of free speech, as given under Article 19(1)(a). But the speech with elements of malice shall be struck down due to the exceptions provided under Article 19(2), because if that were not the case—a speech of malice, say for example a joke, in this case, would be deemed to have been given a higher pedestal between the two speeches, thereby giving the contemptor a right to speak their malicious mind (without any repercussions) under the grab of a joke, and this, inter alia, would become a patent violation of
Article 14 of our Constitution. 
Essentially, therefore, a satirical comment could only be of the court, and not of the court as an institution of justice. 
The Kunal Kamra Case: A Finer Analysis
Since contempt law seeks to counterbalance the protection of two rights: free speech and independent justice , these two aspects have to be looked at gingerly and understood thoroughly.
While on one hand, there is jurisprudence in the liberal view which propounds that a court’s majesty is not determined or deteriorated by feeble comments of individuals , the other side bashes on irrespective of the former view, and claims that the viability of the judiciary, as an institution, depends on [the] continued public assumption that the judiciary is honest and incorruptible.  The idea being—at least in India—that in a nation like ours, the citizens have much faith in the judiciary, and this faith mustn’t be hindered. 
Being on either end of the spectrum does not serve our purpose; therefore, we have to inspect these arguments dead from the centre.
The viability of the judiciary as an institution should not depend on the assumption that the judiciary is honest and incorruptible, but rather, it must be based on public opinion built by the fact of its incorruptibility. It is indeed true that the majesty of a court is conditioned by the way it works; in fact, a testament to this view could be found in the COVID-19 pandemic, where the efforts of various High Courts across India were lauded by the legal fraternity. 
But having said that, the proposition that the majesty of a court is only dependent on this sole factor is, in my humble opinion, a gravely mistaken belief. There may arise circumstances, when even after the most honest, equitable, fearless, and incorruptible justice is delivered, scathing replies may come under the garb of free speech; as remarks against the court, or as satire. Under those perilous circumstances, and notwithstanding the argument of speech with malice, the court has to protect its majesty, and restore the belief people have in its capacity to do justice. 
Reading along those lines, I submit, when satire is in good faith, it cannot be said to have a scandalizing effect on the court, and constitutionally speaking, cannot be manacled; however, the instant one imputes motive or acts in complete disregard of one’s profession, where their joke (or a series of jokes) can gravely hinder the course of justice, in those uttermost cases, the complete exhaustive application of contempt law, I conclude, could even be applied on satirical references directed towards the court, thereby also addressing the second question.
PART THREE — Final Considerations
In this section of the essay, notwithstanding the extent of contempt law’s application deliberated upon thus far, I will seek to bring to fore the picture present on the flip-side of the coin and expound upon the factors of subjectivity and mechanical application of contempt law. Upon promptly doing so, I will emphasize the need for a lenient application in the cases of contempt.
Subjective Application of Contempt Law
SC has held that the punishment under the law of contempt is called for when the lapse is deliberate and in disregard of one’s duty and in defiance of authority. [37 ]A good rule to check such hindrance would be to ask: Does it make the functioning of the Judges impossible or extremely difficult? If it does not, then it does not amount to Contempt of Court. The problem with this approach, however, is that of subjectivity.
Much has been said in consideration of the power of the courts—both Supreme court and the High Courts—to punish for contempt, which they derive, being courts record, from the constitutional provisions, and not by The Contempt of Courts Act, 1971 [Act] itself. 
Consequently, to have such a strong inherent power, which has a widely subjective application , calls for a cautious and meticulous implementation. It is to be noted at this point that scrutiny conducted hitherto makes for an impression that contempt law has a mechanistic application, i.e., there are objective factors—such as, speech with malice or without malice—upon which the decision is relied upon. This, however, is not the case; therefore, a satirical reference may land on either side of the spectrum. Here comes to our assistance the jurisprudence of lenient application of contempt law.
The Jurisprudence of Lenient Application
The judiciary is undoubtedly perturbed by the rising cases of contempt.  Judges have been advised not to be hypersensitive, even where distortions and criticisms overstep the limits , and exercise this power cautiously.  The situation is exacerbated further on account of subjective application and would only further worsen owing to the nature of speech being dealt with, namely satire and jokes. So while there couldn’t ever be an objective standard upon which we can identify a speech as contemptuous or not; there are, nevertheless, some factors that could be taken into account.
The SC, in order to identify criminal contempt, has suggested considering some points, which are, inter alia, the person responsible for comment , and the intended purpose sought to be achieved.  In view of the foregoing principles, I submit, although a comedian may not qualify for any special consideration due to their job profile, which, incidentally, allows them to criticize a subject to salvage laughter, this factor should not downright be overlooked either.
For instance, in the contempt proceedings of eminent lawyer Prashant Bhusan, the SC did take into consideration his status as a prominent legal luminary.  Further, the intended purpose of satire, as propounded earlier, is only to bring to fore the caveats of the system; this, is, however, not to say that satire cannot, at times, cross this line, but all said and done, these two factors have to be thoughtfully contemplated, and the iron hand of contempt law should only be brought upon the transgressor—as noted by the SC—when there is a major lapse in the strict standards of rectitude in the administration of justice. 
From the scrutiny conducted insofar, we witnessed how remarks against the court and satirical references made against the court, notwithstanding any element of malice, are two species, holding equal pedestal, of the same genus, i.e., freedom of speech and expression; and consequently, satirical reference can also amount to contempt of court.
Further, it is understood, and reiterated again, that satire by a comedian does not enjoy a special pier on the platform of fundamental rights, (thereby, dismantling the submissions of Mr. Kamra) and could be effectively curtailed, if need be; but such curtailment, I submit, should only be exercised on the occasion when the comments or actions of an individual so massively hinder the progress of justice that the judiciary sees no room for exemption—and in such case, when things are ill done, silence is not an option. 
Further still, it is crucial to emphasize here again that the application of contempt law comes appended with a widely subjective scale and can act as a major incentive (or deterrent) in the realms of free speech, as in the cases of contempt, the court is both the accuser as well as the judge of the accusation ; therefore, the application (and the resulting limits) of criminal contempt essentially boils down to the perception and subjective application of contempt law by a judge.
Lastly, the power to punish for contempt of court has been proved to be a time tested safety valve for judges to perform the duties , and in view of that, the limits of contempt law should only be tested to the point where the contempt has made a terrible transgression in the apparent exercise of their free speech; and even in those cases, the judiciary should (or rather, must) necessarily either overlook the satirical reference or weigh it against the constitutional jurisprudence of free speech developed in our nation over the years, because our constitutional jurisprudence strongly works around the principle of accepting speech as a right and contempt thereof as a rarely used exception. 
Perhaps an observation made by Justice Markandey Katju seems fit to the occasion where he stated that in the interplay between the freedom of expression and the power of contempt, the rights of the citizens can only be treated primarily and power like that of contempt secondarily. 
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- 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)
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- Baradakanta Mishra, Supra note 26
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