On January 28, 2021, Kunal Kamra filed an affidavit in the Supreme Court of India stating that no judicial office in India was above jokes and satire. He had earlier tweeted a saffron-tinged image of the Supreme Court with the Indian national flag on its rampart replaced with the flag of the Bharatiya Janata Party. He had also described a Supreme Court judge, who had given a decision in favour of a rich litigant as “a flight attendant serving champagne to first class passengers after they’re fast tracked through, while commoners don’t know if they’ll ever be boarded or seated, let alone served”. Both of these tweets, Kamra implied, were satirical, meant to “afflict the comfortable”. They could not be contempt of court since neither were intended to insult the court nor could the court’s reputation be diminished by “a few jokes on Twitter”, he contended.
Why So Upset, Kunal Kamra?
A 21st c stand-up comic and a 19th c Bengali bhadralok editor meet to compare notes on the augustness of our courts….
On May 4, 1883, Surendranath Banerjea filed an affidavit in the Calcutta High Court stating that no contempt could lie from his writings which were intended to promote the public good. In the Bengalee magazine that Banerjea owned and edited, he had written a sharp piece criticising Justice John Norris of the Calcutta High Court. Banerjea had described Norris as “unworthy of holding a high judicial office” and asked the authorities to “put a quietus to the wild eccentricities of this young and raw dispenser of justice”. In the affidavit, while he maintained that his actions were bona fide he unreservedly apologised for basing the article on a report in The Brahmo Public Opinion, which was later found to be inaccurate. He also expressed his regret for “having unwittingly endeavoured to cast an undeserved slur upon the said Hon’ble John Freeman Norris”.
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Banerjea and Kamra met last week to swap notes.
Kamra: We used to read in our history textbooks that the British, unable to pronounce your name, called you “Surrender-not” Banerjea. But you seem to have surrendered quite meekly in your affidavit to the Calcutta HC.
Banerjea: I did admit to my mistake, yes. You see, I had information that Judge Norris had asked for a Hindu stone idol to be brought before the Court so that he could assess its vintage. I found the prospect of a British judge arrogating to himself the power of determining the age of a Hindu idol abhorrent. Was he an expert sculptor or archaeologist to take up this task?
Kamra: But judges today consider themselves capable of determining all kinds of questions…
Banerjea: The issue is not whether they are capable or not in answering a question; the issue is whether judges ought to be so impulsive in framing a legal question without any care for needs of prudence and decency on which the HC’s majesty rests! The majesty of the high court is not to be trifled with, my young friend—it is after all the majesty of the institution that makes it respected by people.
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Kamra (in broken Bengali): Kamra-ke high court dekhachho? Are you trying to bewilder me by repeating the “majesty of the High Court” ad nauseam?
Banerjea: Not at all, my friend. I think the high court is the staunchest defender of individual rights. My gripe was against an individual, not the court itself. So I was aghast when I realised that my facts were wrong—Judge Norris had not acted wantonly at all—in fact, he had been requested by the parties to call for the idol after he had initially refused. He sought the advice of Brahmins who were present and then reluctantly agreed to the idol being brought to the corridor (and not the courtroom), for inspection. The Brahmo Public Opinion, on which I based my piece, had reported it inaccurately. Of course, it is my fault that I didn’t verify my facts, as I should have.
Kamra: Clearly you had fake news in your time as well!
Banerjea: Of course. In my time, there were plenty of fake pamphleteers. As it turns out the report of The Brahmo Public Opinion, despite being edited by an attorney of the Calcutta High Court himself, turned out to be entirely false! This is why I unreservedly apologised to the court. No shame in an apology. Didn’t you do the same?
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Kamra: Sir, I don’t claim to be a learned person like you. I am a comic and raise issues of public interest in a unique way. In this case, I had put out a few tweets. Some people didn’t find it funny. I thought they would ignore the tweets. But they instead sought to prosecute me for contempt. This is how intolerant our country is becoming.
Banerjea: But were you upset with a single judge and his order or the whole Supreme Court itself?
Kamra: Like you, I didn’t say a word intending to insult the court. In fact, do you think the Supreme Court of India can really be insulted by a few tweets? And unlike your news source, I had a good basis for what I said—many comedians like me are imprisoned for weeks but some powerful people are given special treatment and granted bail in a matter of days. Also, the court does not hear many important cases which are sensitive for years. It’s not just me, many serious commentators have said the same thing.
Banerjea: That’s what I thought when I was quoting from The Brahmo Public Opinion. Its editor was no less than Bhubon Mohan Das, father of the great C.R. Das and a leading solicitor of the court. It may have been better if you verified your facts.
Kamra: You know Mr. Banerjea, unlike your time in India, we now live in a free country. Look around you—there are no gora sahibs dismissing Indians from the civil service. People are spitting everywhere, abusing each other on Twitter, buying gadgets made in China. We are truly free to do what we want. In this context why pontificate on technicalities like verification of facts?
Banerjea: You do have a point here. What I find around me today is incessant information and opinions. And like in our time, it is almost always critical. Except with social media, you’ve handed everyone a megaphone to say it. If only we had such a megaphone, our message to make India free would have spread far and wide so quickly. I may even have been able to see a free India before my death!
Kamra: But now that you are seeing a free India, do you believe my case should be treated like yours?
Banerjea: I find today that courts, despite the passage of over a century, have remained largely the same. The same imposing buildings, the time-tested colonial traditions, a British dress code even in sweltering Indian summers and many colonial-era laws. Except the conspicuous absence of white judges, I see no real difference in our courts.
Kamra: Does that surprise you?
Banerjea: It most certainly does! Courts in our time were administering the law of the colonial raj. Today they are independent courts in a modern democracy that has embraced the information age. They can’t possibly remain the same!
They too should embrace the moment and live-stream their proceedings to all interested citizens. They should list cases transparently so that a powerful journalist and an unconnected comedy show organiser are seen to be treated equally by the law. They should have Facebook and Twitter accounts themselves by which they can counter canards. And they should most certainly put out summaries of their judgments for the media so that I don’t ever again have to depend on The Brahmo Public Opinion to write my story!
Kamra: So what do you think they’ll do with my case?
Banerjea: I can’t speak for the court today, Kunal but I can tell you what happened in my case. The four British judges imprisoned me in the civil wing of the Presidency Jail in Calcutta for two months. The Indian judge Mitter only imposed a fine. My order of imprisonment became the biggest talking point in British India. The Indian Association in its report noted:
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“That ‘good cometh out of evil’ was never more fully illustrated than in this notable event…Surendranath Banerjea has at least one consolation, that his misfortune awakened, in a most marked form, a manifestation of that sense of unity of the different Indian races, for the accomplishment of which he has so earnestly striven and not in vain.”
You never know, Kunal, maybe your case, like mine will bring about a true sense of unity in all Indians, despite you not having tried very hard for it.
Kamra: I doubt that very much…
Banerjea: Even if it doesn’t, time has its own way of settling scores. In the demonstration outside the courtroom after my imprisonment, several youths smashed windows and pelted the police with stones. One of those youths who rose to prominence that day was Ashutosh Mukherjee, later judge of the high court and father of Syama Prasad, the founder of the Bharatiya Jana Sangh, now the Bharatiya Janata Party, whose flag you super-imposed on the Supreme Court!
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Kamra: What they say of Indian courts is true after all—what goes around, ultimately comes around, even if it is after 138 years!
(Disclaimer: The conversation is a work of fiction. But the incidents on which it is based are derived from factual sources.Views are personal.)
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Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy.