New Delhi: The Hindu‘s former editor, N. Ram, former Union minister Arun Shourie and senior advocate Prashant Bhushan have filed a petition in the Supreme Court challenging the constitutionality of the sub-section of the Contempt of Courts Act, 1971 which deals with the offence of criminal contempt on the ground of “scandalizing the court or lowering the dignity of the court”.
The writ petition challenges the provisions –numbered Section 2(c)(i) – as being “violative of fundamental right to free speech”, vague, subjective and also “manifestly arbitrary”.
While Bhushan is facing two criminal contempt proceedings before the Supreme Court, Shourie and Ram have also faced similar proceedings in the past. One of the cases against Bhushan relates to two recent tweets that the senior advocate made, while the other is a case that has been pending since 2009 and is scheduled to be heard on August 4 after being in cold storage for eight years.
According to LiveLaw, Ram faced criminal contempt proceedings in the Kerala high court over the publication of court proceedings in the Kollam liquor tragedy case. The case was later closed.
Shourie faced contempt proceedings over an editorial commenting on the functioning of the Justice Kuldeep Singh Commission, according to LiveLaw. “In 2014, the SC held that the publication did not amount to contempt, accepting the defence of truth raised by him (Subramanian Swamy v Arun Shourie (2014) 12 SCC 344),” the website reported.
The petition, filed through senior advocate Kamini Jaiswal, says that the impugned sub-section “fails the test of overbreadth and “abridges the right to free speech and expression in the absence of tangible and proximate harm”. The petitioners also claim that Section 2(c)(i) of the Act creates a chilling effect on free speech and expression and that the offence of “scandalising the court” cannot be considered to be covered under the category of “contempt of court” under Article 19(2) of the constitution – which lists out the grounds on which free speech may be restrained.
Even if the “impugned sub-section were permissible under the ground of contempt in Article 19(2), it would be disproportionate and therefore unreasonable”, they said, adding that the offence of scandalising the court is rooted in colonial assumptions and objects, which have no place in legal orders committed to democratic constitutionalism and the maintenance of an open robust public sphere.
“The impugned sub-section is unconstitutional as it is incompatible with preambular values and basic feature of the constitution. It violates Article 19(1)(a), is unconstitutional and incurably vague, and is manifestly arbitrary”, reads the petition.
The petition describes the provision as highly subjective, inviting “greatly different readings and application”. Thus, the vagueness of the offence violates Article 14, which demands equal treatment and non-arbitrariness.
“For instance, in P N Dua vs P. Shiv Shankar, the respondent was not held guilty of scandalising the court despite referring to Supreme Court judges at a public function as ‘antisocial elements i.e. FERA violators, bride burners and a whole horde of reactionaries’ on account of the fact that he was law minister. However, in D.C. Saxena vs Chief Justice of India, the respondent was held guilty of criminal contempt for alleging that a Chief Justice was corrupt and that an FIR under the IPC should be registered against him”, the plea states.
“The impugned sub-section fails the test of manifest arbitrariness laid down by the Supreme Court in Shayara Bano vs Union of India (2017) and followed in Navtej Singh Johar vs Union of India (2018), which a widely and vaguely worded offence of colonial vintage criminalised otherwise lawful and constitutionally protected activity,” the petition adds.
Read the full petition below.