Although the Legislature and the Executive are the subject of regular political satire in India, last month the courts showed that contempt powers can be used to create a hitherto-unknown zone of immunity around the judiciary and legal profession in India.
The case of Jolly LLB-2
The case involved the movie “Jolly LLB-2”. Here, a lawyer filed a writ petition before the Bombay High Court for the deletion of certain scenes that undermined the “solemnity and gravitas” of a judge’s seat. He also sought an unconditional apology from the producers and director of the movie for deliberately tarnishing the legal profession, which he argued constituted an act of contempt. Based on two trailers and some photographs, the High Court seemingly agreed, observing, “prima facie, the above referred photographs do indicate total disrespect or disregard to the high office of this Court.” It then went on to appoint a three-member “committee”, comprising two lawyers, to watch the movie and submit a report.
The producers of the movie immediately moved the Supreme Court, challenging the constitution and jurisdiction of this “committee”. However, after hearing the parties, the Supreme Court did not interfere with the committee’s functioning, and left it to the High Court to pass “appropriate” orders after reviewing its report.
The committee’s report listed various scenes it found “objectionable”, including a scene of a shoe being thrown at a judge, which, it concluded amounted to defamation and contempt of court. Significantly, as a measure of compromise and “in view of the imminent release of the film”, the director undertook to make four cuts and modify the objectionable scenes, after which the CBFC was directed to re-certify the movie. The petition before the Supreme Court was then withdrawn, with no clarity on the question of whether a court-appointed Committee could review the certification granted by a statutory body/CBFC.
A case of judicial overreach?
Courts in India can punish litigants for criminal contempt for publications that, inter alia, tend to “scandalise” or “lower the authority of the court”. However, contempt powers are to be exercised “cautiously”, when “silence is no longer an option.” The Indian Supreme Court has demonstrated in the past that it is tolerant of diverse viewpoints, even when they criticise public institutions, because of “the larger public interest” involved. The Court has rightly observed, “judicial institutions are, and should be made, of stronger stuff intended to endure and thrive even in such hardy climate.”
Consequently, the Bombay High Court’s view that “prima facie”, scenes from the trailer, satirically depicting a cowering judge, brought disrespect to the Judiciary is clearly incorrect. We must not forget that we are talking about a movie, which is a fictional and humorous representation of the frustrations felt by the common man with the Indian legal process. When institutions lose the ability to tolerate criticism, they come dangerously close to undermining constitutional values, as happened during India’s infamous Emergency between 1975-77.
Therefore, the High Court’s willingness to use contempt powers to bring about a more suitable depiction of the profession flies in the face of the law on contempt and only serves to weaken the Court’s own reputation.
Even apart from the substantive question of contempt, the Bombay High Court’s actions are troubling. Article 19(2) of the Indian Constitution makes it clear that only a “law” enacted on certain parameters can impose reasonable restrictions on the exercise of the right to free speech. The Cinematograph Act of 1952 stipulates that certification of films shall be through the CBFC. It does not envisage any role for the Judiciary, much less a court-appointed committee, in the certification process. Therefore, there was no lawful authority for the High Court’s direction to the CBFC to re-certify the film.
Further, there is nothing in the Contempt of Courts Act that allows for pre-censorship or justifies the Bombay High Court’s creation of a new power of preventive contempt to protect itself from satire.
Finally, the orders of the courts effectively contribute to a chilling effect on free speech and result in pre-censorship. The courts’ inclination to exercise their contempt powers to regulate hostile speech, instead of protecting it, is viewpoint discrimination, which is a far cry from their role as protectors of rights.
Indian courts would do well to remember Justice Black’s words, “the assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. The UK Law Commission too, recommended abolishing “scandalising the Court” as a form of contempt, since “there is something inherently suspect about an offence both created and enforced by judges which targets offensive remarks about judges.”
The power of the courts to punish for contempt is meant to secure public respect and confidence in the judicial process. However, the Indian Judiciary is undermining its magisterial role as the guardian of constitutional rights by stepping in as a censor, when it should be welcoming speech that strengthens the institution through constructive criticism.