Offence of “scandalizing the court” is rooted in colonial assumptions N Ram,Shourie, Bhushan Moves SC Challenging Constitutionality of Sec2 (c) (i) of Contempt of Courts Act

(Judicial Quest News Network)

In a Significant development two top Journalists and a top lawyer have filed a petition in Supreme Court challenging the constitutional validity of the Section 2©(i) of the Contemept of Courts Act 1971,

The Petition is filed by N.Ram former editor and managing Director of ‘The Hindu’, Arun Shourie, former Union Minister and Prashant Bhushan, Advocate.

The petition is filed under Article 32 of the Constitutiopn challenging the provisions as being violative of fundamental right to free speechunder Article 19(1)(a) of the Constitution , as being vague and subjective , and also being manifestly arbitrary.

The impugned sub-section fails the test of manifest arbitrariness laid down by the Hon’ble Supreme Court in Shayara Bano v. Union of India (2017) 9 SCC 1 and followed in Navtej Singh Johar v. Union of India (2018) 10 SCC 1 in which a widely and vaguely worded offence of colonial vintage criminalised otherwise lawful and constitutionally protected activity

“There can be no doubt that both this Court and High Courts are courts of record and the Constitution has given them the powers to punish for contempt. The decisions of this Court clearly show that this power cannot be abrogated or stultified. But if the power under Article 129 and Article 215 is absolute, can there by any legislation indicating the manner and to the extent that the power can be exercised? If there is any provision of the law which stultifies or abrogates the power under Article 129 and/or Article 215, there can be little doubt that such law would not be regarded as having been validly enacted. It, however, appears to us that providing for the quantum of punishment or what may or may not be regarded as acts of contempt or even providing for a period of limitation for initiating proceedings for contempt cannot be taken to be a provision which abrogates or stultifies the contempt jurisdiction under Article 129 or Article 215 of the Constitution.”

Presently Advocate Bhushan is facing two criminal contempt cases proceeding from the SC. On August 4 a bench of Justice Arun Mishra is set to hear an 11-year old contempt case taken against him over his comments against former Chief Justice of India in an interview given to ‘Tehlka’ magazine in 2009.

Supreme Court had taken a fresh suo moto Contempt case against him over his tweets about SC and CJI, which is listed on August 5.

The petition also makes the reference to contempt proceedings filed against each of the three petitioners in the past. Ram had faced proceedings initiated by the Kerala High Court in 2005 for condemning the way Mathrubhumi Editor K.Gopalkrishnan was forced to appear in the court on a stretcher, following summons by the court in a contempt case.

Arun Shourie faced contempt action in 1990, back when he was Editor of the Inian Express, in petition filed by Subramanian Swamy.Those proceedings arose from an editorial written about the functioning of Commission of Enquiry headed by the then Apex Court judge Justice Kuldeep Singh.

Presently two contemp cases pending against Bhushan –for his interview in Tehelka magazine alleging corruption in the judiciary back in 2009, and for his latest weets on Chief Justice of India SA Bobde- are cited in the petition.

The petitioners sought the violation of Article 19(1)(a)

That the impugned sub-section violates the right to free speech and expression guaranteed under Article 19(1)(a) and does not amount to a reasonable restriction under Article 19(2) on the following grounds:

First, the impugned sub-section fails the test of over breadth. 9

Second, the impugned sub-section abridges the right to free speech and expression in the absence of tangible and proximate harm.

Third, the impugned sub-section creates a chilling effect on free speech and expression.

Fourth, the offence of “scandalizing the court” cannot be considered to be covered under the category of “contempt of court” under Article 19(2).

Fifth, even if the impugned sub-section were permissible under the ground of contempt in Article 19(2), it would be disproportionate and therefore unreasonable.

Finally, the offence of “scandalizing 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 Petition has been filed through Advocate Kamini Jaiswal.