New Delhi: Former Union minister Arun Shourie, former chairman of The Hindu Group of Newspaper N. Ram and advocate Prashant Bhushan Friday approached the Supreme court, challenging the constitutional validity of criminal contempt for ‘scandalising the court’ on the grounds that it violates freedom speech and expression.
The petition challenges the validity of Section 2(c)(i) of the Contempt of Courts Act 1971, asserting that the provision “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 provision, it says, “has the effect of threatening dissenters and critics into silence” and “silences legitimate criticism and dissent to the detriment of the health of the democracy”.
Section 2(c)(i) defines criminal contempt as “publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which — scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court”.
The petition alleges that the provision violates Article 14 and 19 of the Constitution.
It contends that Section 2(c)(i) violates the right to freedom of speech and expression guaranteed under Article 19(1)(a) and creates a “chilling effect” on free speech. It submits 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 permits reasonable restrictions on free speech.
The petition also claims that the provision is “incurably vague”, leading to “subjective and greatly differing readings and application, which is incapable of being certain and even-handed”.
It further claims that the “uncertainty in the manner in which the law applies renders it manifestly arbitrary and violates the right to equal treatment”.
To bolster this contention, it gives an example: “For instance, in P. Shiv Shankar case, 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 horse of reactionaries’ on account of the fact that he was a Law Minister. However, in the D.C. Saxena case, 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 petition, therefore, demands that the provision be struck down.
‘Tryst with contempt proceedings’
The petition also lists down the instances when contempt proceedings were initiated against the three petitioners, saying that they have all “had a tryst with contempt proceedings” themselves.
For instance, N. Ram had contempt action initiated against him by Kerala High Court in March 2005 for criticising the way Mathrubhumi editor K. Gopalakrishnan was forced to appear in the court on a stretcher in 2001 in a contempt case. But the proceedings were closed soon after.
Shourie also had contempt proceedings initiated against him in 1990 for an editorial that he wrote criticising the functioning of a Commission of Enquiry headed by then sitting Supreme Court judge, Justice Kuldip Singh. The Commission was set up to look into the allegations against former chief minister of Karnataka, Ramakrishna Hegde.
But the Supreme Court in 2014 dropped the case, saying that truth is a valid defence in contempt proceedings.
Bhushan is currently facing two contempt cases.
The Supreme Court will be hearing one of these cases on 4 August. Contempt proceedings were initiated against him in this case 11 years ago in 2009, when Bhushan had given an interview to Tehelka magazine in which he allegedly made a serious imputation against then Chief Justice, S.H. Kapadia.
Last month, the Supreme Court initiated fresh contempt proceedings against Bhushan for two of his tweets on incumbent Chief Justice, S.A. Bobde as well as former CJIs. This case will be heard on 5 August.
‘Smacks of malice’
On Friday, Bhushan filed another petition in the Supreme Court, challenging the entertaining and listing of the contempt petitions against him as illegal and unconstitutional. The petition has been filed against the secretary general of the top court.
While the apex court had initiated a suo motu case against Bhushan for his recent tweets on 21 July, a Madhya Pradesh lawyer, Mahek Maheshwari, had also filed a petition against Bhushan and Twitter on 2 July, asking for contempt proceedings to be initiated against Bhushan.
Bhushan has now submitted that Maheshwari’s petition was “defective” because it was filed without the consent of the attorney general or the solicitor General. This is in light of Section 15 of the Contempt of Courts Act, 1971, as well as the 1975 Supreme Court Rules regarding proceedings for contempt, which allow anybody to file a case of criminal contempt only after obtaining such a consent.
He, therefore, stated that the orders passed in the case so far “constitute an infringement of the petitioner’s right to life and liberty under Article 21 of the Constitution without following the procedure established by law”.
Bhushan has further submitted that the “sudden listing” of the decade-old Tehelka contempt case against him “smacks of malice in law” and “reflects the intention of the respondent to somehow or the other convict the petitioner for contempt”.