The four petitioners before the Karnataka high court – Krishna Prasad, Arun Shourie, N.Ram and Prashant Bhushan – have both locus standi as well as sufficient interest to maintain an action of public injury in challenging the constitutional validity of section 2 (c) (i) of the Contempt of Courts Act, 1971, the clause dealing with ‘scandalisation of courts’. They have a locus because they have individually suffered personal injury on account of wrongful use of the provision against them in the past. They also claim sufficient interest to maintain the public interest litigation (PIL) because the overbreadth of the words of the provision and the resulting reality of its inconsistent application have the chilling effect on the expression of dissent in an otherwise vibrant democracy like ours.The offences of “scandalising” or “lowering or tending to lower the authority of the court” were not specifically or expressly contemplated as reasonable restrictions under the ground of “contempt of court” in Article 19(2) of the Constitution. As the four petitioners before the Karnataka high court point out, the category of “contempt of court” was added by means of an amendment to Draft Article 13(2) (final Article 19(2)) and was intended to:“…cover one category of what might be called lapses in the exercise of freedom of speech and expression, namely, a person might be speaking on a matter which is sub judice and thereby interfere with the administration of justice”. [T.T.Krishnamachari on Draft Article 13, Constituent Assembly of India Debates (Proceedings) – Volume X, Monday, October 17, 1949]The petitioners point out that the Constituent Assembly debates make clear that the ground of “contempt of court” had been introduced to cover a lacuna by permitting restrictions on persons speaking on matters which were subjudice, and which could consequently lead to interference with the administration of justice.Yet, the impugned sub-section in the Contempt of Courts Act was introduced in 1971, a full 40 years after the last prosecution for “scandalising the court” under common law in the UK (R v Colsey, the Times, 1931). The offence had fallen into disuse under common law and was not contemplated as a ground for restriction under Article 19(2) during the adoption of the constitution. Therefore, the petitioners contend that the meaning of “contempt of court” under Article 19(2) cannot post facto be extended by legislation to include ‘scandalising the court”.Centre’s replyThe Centre, in its reply to their petition before the high court, however, skips this main contention of the petitioners.Instead, the Centre claims that as per Section 22 of the Contempt of Courts Act, 1971, the provisions of the Act are in addition to and not in derogation of the provisions of any other law relating to contempt of courts. “It necessarily follows that the constitutional jurisdiction of the Supreme Court and high court under Articles 129 and 215 of the Constitution cannot be curtailed by the Contempt of Courts Act,” its reply reads. The petitioners have not said so in their petition, and one wonders why the Centre has to reiterate something that the petitioners also agree with.The inherent power of the Supreme Court and high courts cannot be taken away by any legislation short of constitutional amendment, the Centre asserts. Agreed. The petitioners are not challenging this inherent power in any case.“Section 2(c)(i) of the Act does not restrict free speech. It is settled principle of constitutional law that the free speech guaranteed under Article 19(1)(a) of the constitution is not absolute and subject to reasonable restrictions under Article 19(2) of the constitution,” the Centre’s reply reads, without explaining how Section 2(c)(i) purports to be a “reasonable restriction”.Reasonable restrictions imposed under Article 19(2) on free speech cannot be cast in stone or fitted into rigid moulds; they are flexible and turn on the facts and circumstances of each case, the Centre has claimed.The words, “scandalises or tends to scandalise, or lowers or tends to lower the authority of any court” used in Section 2(c)(i) of the Act cannot be examined in isolation; the said words have to be examined in the light of the facts and circumstances of each case, the Centre has submitted.This is debatable because the restriction imposed on freedom of expression becomes reasonable only when it satisfies any of the grounds mentioned in Article 19(2), and in this case, contempt of court. As the petitioners have argued that the restriction contemplated under Section 2(c)(i) is not in relation to contempt of court, as originally conceived under Article 19(2), Centre’s reply ought to have answered it. But it doesn’t. One hopes that the Centre has an answer to it during the oral arguments before the high court.The Centre has claimed:“Independence of the judiciary is an important constituent of a democracy. When the criticism has the tendency of lowering down the authority of the judge and even obstruct the administration of justice, the court has the power to punish any such act which tends to demean the value of judiciary under the Contempt of Courts Act, 1971. While all citizens are guaranteed the right to freedom of speech and expression, contempt of court is one of the reasonable restrictions that can act as a rider on this right.”Again, the petitioners do not dispute this claim. What they are challenging, however, is the relevance of Section 2(c)(i) for the purpose of punishing criticism which has the tendency of lowering down the authority of the judge or obstructing the administration of justice. Clearly, the Act has other provisions which take care of these concerns much more effectively than what Section 2(c)(i) purports to achieve.“None of the fundamental rights guaranteed to Indian citizens are absolute. The right to freedom of speech and expression is also subject to certain other reasonable restrictions such as defamation, decency and morality, public order and incitement of offences. However, the reasonable restrictions were included with the objective of maintaining balance as the framers of the constitution knew that if they were to enshrine absolute right on Indian citizens, dire circumstances would ensue leading to a failure of constitutional machinery,” the Centre’s reply reads.Karnataka high court. Photo: Sidharth Telang/Flickr CC-BY-NC 2.0Incorrect assertionHere, the Centre is factually wrong. The words “reasonable restrictions” were inserted under Article 19(2) in the constitution through the First Amendment by the first parliament. The framers did not envisage it, though there were heated debates in the Constituent Assembly on whether the term “reasonable restrictions” should be included under Article 19(2). The framers ultimately added restrictions, including contempt of court, under Article 19(2), but chose not to mention whether the restrictions ought to be reasonable.Were the framers opposed to conferring absolute right on citizens because they feared dire consequences leading to a failure of constitutional machinery? Here, the Centre forgets that both the framers and the members of the first parliament which enacted the First Amendment in 1951 debated the issue of freedom of expression when the Indian state was nascent, with centrifugal forces threatening its very survival. Therefore, if the framers feared dire consequences leading to the failure of constitutional machinery, it was understandable.India today is a mature republic and has proved its resilience as a functioning democracy periodically, albeit with more flaws than virtues. For the Centre to rely on the same fears which influenced the decision of the framers 70 years ago to defend an outdated provision coming in the way of full enjoyment of free expression is a travesty.The reasonableness of the restriction means that it should not be excessive or disproportionate. The Supreme Court has held in many cases that the procedure and the manner of imposition of the restriction also must be just, fair and reasonable. The validity of the restriction is justifiable. Courts in India exercising the power of judicial review have invalidated laws and measures which did not satisfy the above requirements. Therefore, the Centre’s submission before the high court that in the light of the facts of each case, the rules of the reasonableness of the restrictions, proportionality, etc. has to be understood, is specious and an attempt to avoid a direct answer to the petitioner’s contentions.It is not possible for the legislature to foresee in advance all possible acts/omissions that would constitute criminal contempt and the acts/omissions constituting the criminal contempt has to be understood in the light of the facts of each case, the Centre has submitted. Such a contention, if accepted, will reduce the precious and guaranteed right of freedom of speech and expression to a nullity.Indeed, the very objective of guaranteeing certain rights as fundamental under Article 19 (1) is that their enjoyment does not depend on the changing facts and circumstances, characteristic of social changes happening all the time. If the enjoyment of rights is to be restricted according to the changes in facts and circumstances, they will become meaningless, and defeat the very objective of their inclusion as fundamental rights under Article 19(1).Shooting the messengerThe Centre, in its reply, has raised certain technical objections to the writ petition, filed by the four eminent citizens before the high court. The petition is a result of the withdrawal of a similar petition, filed by the three of them – Arun Shourie, N. Ram and Prashant Bhushan – before the Supreme Court last year, when it was listed for hearing before Justice Arun Mishra. Justice Mishra was then on the verge of his retirement and in the midst of a huge controversy over his contempt notice to Bhushan for his tweets critical of the CJI and the court during the lockdown. Justice Mishra permitted the withdrawal of the petition, and liberty to file the same before any high court.The Centre, in its reply, has argued that the Supreme Court reserved liberty only in favour of the three – Arun Shourie, Prashant Bhushan and N.Ram – and not in favour of Krishna Prasad, who is petitioner No 1 in the present case before the Karnataka high court. “Only the petitioner No 1 is residing in the territorial jurisdiction of the Karnataka high court, and the petitioners No 2 to 4 are not residing within its jurisdiction,” the Centre has claimed.“None of the contempt proceedings mentioned in paragraphs 10 to 21 have arisen within the territorial jurisdiction of the Karnataka high court. No contempt proceedings have been initiated against the petitioners within the territorial jurisdiction of the Karnataka high court,” it has argued further.“The petitioners Nos 2 to 4 instead of approaching the respective courts where the contempt proceedings against them are initiated or pending, have filed the present petition along with petitioner No 1. There is no contempt petition pending before the Karnataka high court against Petitioner No 1. Petitioners No.2 to 4 have joined with the first petitioner as the residential address of the first petitioner is within the jurisdiction of the high court. This is an abuse of process of court,” the Centre has submitted, as if it has no substantive answers to the petitioners’ pleas.If the Centre’s claim is to be accepted, the liberty granted by the Supreme Court to the three petitioners to pursue effective remedies before any high court with a similar petition will become meaningless.
