Gogoi's criticism of judiciary and comedian's contempt

Attorney General KK Venugopal did not agree or praise the remarks of former Chief Justice Ranjan Gogoi but rightly analysed those comments on the point whether they constitute contempt of court or not.

According to Section 15 of the Contempt of Court Act, the consent of the Attorney General is essential for initiating prosecution of any person for contempt of court. In response to such request for initiating process of contempt against Justice Gogoi the AG said that his "statements were indeed "very strong", but it was said for the "good of the institution" and would not "in any manner scandalise the court or lower its authority in the eyes of the public". "The statements apparently reflect his deep frustration with the ills that undoubtedly beset the justice delivery system," Venugopal explained.

The attorney General is an independent authority to decide on permission to lodge contempt cases, without anybody's advice. He must decide on his own. The present AG is a well-read legal luminary, who can find out what is scandalous and what is not.

Comedian and contempt

He gave second consent recently to Advocate from Prayagraj, Anuj Singh to initiate contempt proceedings against a stand-up comic artist Kunal Kamra for his November 18 tweet, considering that it was "grossly vulgar and obnoxious" and tended to lower the authority of the Supreme Court. Kamra in his earlier tweets also allegedly criticised the apex court, which AG considered to be in "bad taste". Based on AG's first consent a petition was filed in the Supreme Court on November 13 seeking initiation of criminal contempt proceedings against Kamra for his alleged "scandalous tweets" against the apex court.

When SC granted interim bail to Arnab Goswami in the 2018 abetment to suicide case. on November 11, Kamra published various tweets and thereby scandalised the apex court, it was alleged. The AG while granting consent earlier, said today people believe that they can "boldly and brazenly condemn" the Supreme Court of India and its judges by exercising their freedom of speech, but under the Constitution, the freedom of speech is subject to the law of contempt. He said that the comments "clearly cross the line between humour and contempt of the court."

Kunal has allegedly compared a SC judge with a 'flight attendant serving champagne to first-class passengers and called apex court as a 'Supreme Joke'. He has also allegedly caused a grave insult of Justice DY Chandrachud and Justice Indira Banerjee and addressing senior advocate Harish Salve by mocking him in the most unscrupulous manner.

The complainant in this case sought action under section 228 (Intentional insult or interruption to public servant sitting in the judicial proceeding), 503 (Criminal intimidation), 504 (Intentional insult with intent to provoke breach of the peace), 505 (creating or promoting enmity), 506 (punishment for criminal intimidation of the Indian Penal Code, Section 12 (contempt of court) of the Contempt of Court Act and various sections of the IT Act.

Gogoi on judiciary

Ranjan Gogoi's criticism of judicial functioning is totally different from the comments of the comedian Kunal. In fact, Gogoi spoke truth about the present-day plight of cases in courts of law. But some wanted to drag him to court for these statements. When an MP criticised him, some wanted to bring privileges motion against her. Even during the Corona pandemic 60 lakh people approached the courts seeking justice. That is the credibility of the institution in spite of efforts by some to blame it. A public-spirited person sought the consent of the Attorney General of India K K Venugopal to prosecute Ranjan Gogoi for contempt of court, which he refused on February 26.

When the productivity of all institutions and organisations went down in 2020 due to the pandemic, the judiciary "succeeded" in adding its case arrears, he said with a tone of sarcasm. He said 60 lakh cases were added at the subordinate level, three lakh in High Court and nearly 7,000 in the Supreme Court in the pandemic-affected year.

It is very interesting that lakhs of people look at the court as a final resort of justice, but the former Chief Justice asks: "Who goes to the court? You go to the court and regret. It is those who can afford to take chances, like the big corporates, who approach the courts…"If you go to the Court, you would be washing your dirty linen in the Court. You will not get a verdict".

It is the gospel truth of the present situation. It came out from none other than former Chief Justice of India. Justice Ranjan Gogoi was the CJI just before the present CJI. He is now people's representative in Rajya Sabha, nominated by the President on the recommendation of the present Government in March 2020 after his retirement in November 2019.

He said: "You want a 5 trillion-dollar economy but you have a ramshackled judiciary…System has not worked. If you want a thriving economy, you must have a forum to decide commercial disputes. Nobody is going to invest unless you have a robust system. Where is the mechanism? Commercial Courts Act has brought within its purview every conceivable commercial disputes. But who is applying the law? The same judge doing the normal work.

Speaking about arbitration – " the award passed by the CJI is questioned before a district judge. What does the poor fellow do? He sits on it. Then there is an appeal to HC, appeal to SC. So the whole thing of arbitration not going to court not working". "The road map is...have the right man for the job. You do not appoint judges as you appoint officers in the government. To judge is a full-time commitment. It is a passion. There are no working hours. It is a 24/7 job. You wake up at 2 o clock in the morning, remember a point, and jot it down. That is how a judge works. How many people understand this?", he said.

Justice Gogoi surprised the people saying that even he won't go to the courts. This was in reply to a question by an anchor whether he would take legal action against Mahua Moitra MP over her statements in the Lok Sabha that Gogoi discredited the judiciary by deciding the sexual harassment allegations against him. Without naming Moitra, Gogoi said that the 'lady politician' did not have her facts right as he did not decide the case against him. Gogoi said that he had handed over the file to Justice Bobde, who was the next senior judge then, who in turn constituted the enquiry panel as per the in-house procedure.

Gogoi refuted the allegation that his nomination to the Rajya Sabha was a quid pro quo for delivering judgments favouring the BJP government's position in Rafale and Ayodhya cases. If there was such a bargain actually, would anyone settle for a Rajya Sabha seat, he asked rhetorically." I thought I will do some constructive work in the Rajya Sabha. If I were to look for something, would I look for a Rajya Sabha seat?

Give this much credit to a man who has written these judgments that if he wants to bargain, he will make a good bargain. Give me this much credit. Rajya Sabha is not a good bargain. If there had been a bargain, there would have been something bigger, not the Rajya Sabha seat", he claimed, adding that this was a "worthless topic".

When the anchor asked how he will tackle the growing perception that his nomination to the Upper House was a return favour, Gogoi made an appeal to his own conscience. "I don't have to tackle anything. I have to tackle only my conscience. My conscience is clear. No amount of what others perceive bothers me".

He added that he has not taken even a single penny from the Parliament and has given in writing that he will not draw any remuneration for his Rajya Sabha term. He commented that media outlets and web portals attempted to "cow down" judges and that judges succumbing to such attacks was a "real threat". "What is this attack, does a judge or a former judge get cowed down by attacks? Will he ever be able to function if he is afraid of being attacked while in office or after office?", he added.

(The writer is Professor of Law, Bennett University and former Central Information Commissioner)