On Thursday, the Madurai bench of the Madras High Court found YouTuber Savukku Shankar guilty of criminal contempt of court and sentenced him to six months imprisonment. Criminal contempt is defined as actions or words that obstruct the administration of justice or scandalise the court.

Shankar, in his articles and interviews, had alleged corruption in the higher judiciary. The court took cognisance of these statements suo moto – which is to say without prompting from another day – and said that these were likely to lower the dignity of courts and judges.

However, his conviction has been met with mixed reactions. While some lawyers believe that Shankar deserved to be held guilty for contempt, others feel that the Madras High Court overreacted. Many also said that one of the judges on the bench, Justice GR Swaminathan, should not have presided over the case since one of Shankar’s corruption allegations was directed at him.

Cases against Shankar

On July 18, Shankar alleged on social media that Justice GR Swaminathan had been influenced while deciding a case for a Youtuber named Maridhas, a well-known critic of Tamil Nadu’s ruling party, the Dravida Munnetra Kazhagam. In December, Swaminathan quashed two criminal cases against the YouTuber for alleging a conspiracy in the death of Chief of Defence Staff General Bipin Rawat and for blaming a Muslim religious group, the Tablighi Jamaat, for Covid-19 spread in India.

Based on Shankar’s tweet, on July 19, Swaminathan issued an order to initiate criminal contempt proceedings. This case is still pending.

Meanwhile, on July 22, Shankar gave an interview in which he said, “The entire higher judiciary is riddled with corruption”. On the basis of this, another contempt case was registered and notice was issued on September 1.

Later, the court added five more instances where Shankar had made remarks against the judiciary. These included allegations that district judges appointed good-looking widows in their offices and that judges’ security personnel had become brokers for litigants seeking favourable judgments.

YouTuber and DMK critic Maridhas. Credit: Maridhas M/Facebook

In contempt

Shankar, who was representing himself, said that he stood by his statements and refused to apologise. He argued that his comments were taken out of context and he only wanted to improve the judiciary, an institution he respects. Several others, such as former law ministers and Supreme Court judges, have made similar statements without being prosecuted, he argued. He also claimed that he wanted to highlight that Brahmins are over-represented in the judiciary.

The court rejected Shankar’s arguments. It said that Shankar could have made specific allegations based on prima facie evidence and good faith. However, “general and sweeping expressions” he used were contemptuous.

The court also noted that Shankar had not shown any remorse or regret. Further, he was a well-known YouTuber with a large following. “His words have the effect of lowering the dignity and prestige of the institution,” the court said.

Coming down hard

There were a few other issues before the bench. The fact that Swaminathan was hearing the matter, amounted to a judge hearing his own case. Shankar had questioned Swaminathan’s integrity, after which the judge had instituted the first case of criminal contempt against him. However, Shankar’s tweets against Swaminathan were not the subject of the case he was eventually convicted for.

However, the bench noted that it was the chief justice who assigned the matter and the law did not bar Swaminathan from hearing the case. Additionally, Shankar never asked for Swaminathan’s recusal. Therefore, it was not against natural justice.

According to TheNewsMinute, Shankar had requested that his sentence be suspended till he could appeal the decision to the Supreme Court. But this request was rejected. The court said that the sentence of six months, the highest permissible jail term under the law, was justified.

The case was also decided swiftly: within 15 days. Shankar had initially asked for eight weeks, and later, two weeks, to file a reply. However, since he refused to refrain from criticising the judiciary while the case was ongoing, the bench granted him only a week. Justifying this, the court said that Shankar had an opportunity to “have his full say”.

Mixed reactions

Prashant Bhushan, advocate and convenor of the Campaign for Judicial Accountability and Reforms, disagreed with the order on several grounds. “The judge had a conflict of interest,” he said. “He should not have heard the case.”

With regard to the sentence of six months, Bhushan said, “The order is vindictive. It is clear that the judge had a personal angst against him. For someone to say there is a lot of corruption in the judiciary is perfectly fine.”

Such orders, Bhushan said, “will bring greater disrepute to the judiciary”. He added, “The judiciary’s reputation cannot be protected by punishing people for contempt.”

However, some lawyers feel that Shankar’s conduct merited the punishment. “He is consistently trying to scandalise the court,” said Madurai-based lawyer Mehboob Athiff. “As a member of the bar, I would welcome this decision.”

Athiff added: “His comments were not in good taste. To pardon him would only embolden him to do it again.”

Contempt and democracy

India’s criminal contempt law has been hotly contested, with many arguing that it has no place in a modern democracy. Academics have written about how the law, in effect, allows the judiciary to escape public criticism.

“Criminal contempt is quite problematic in a democracy,” said Aparna Chandra, a professor of constitutional law at the National Law School of India University, Bangalore. “As public officials, judges should be open to public accountability.”

Though Article 19(2) of the Constition mentions contempt of court as one of the grounds on which free speech can be reasonably restricted, Chandra said, “This restriction has to be restricted in scope since judges do not wear this power lightly.”

Thus, according to her, only civil contempt, which punishes people for not following courts’ order, was legitimate.

In 2013, the United Kingdom abolished “scandalising the court” as grounds for criminal contempt. A petition pending before the Karnataka High Court also argues that some provisions of the Indian contempt law are too broad and vague and thus undermine freedom of speech.