N Ram, Arun Shourie, and Prashant Bhushan have moved the Supreme Court
N Ram, Arun Shourie, and Prashant Bhushan have moved the Supreme Court
Litigation News

Offence of "scandalizing the court" rooted in colonial objects: Plea in SC challenges constitutionality of criminal contempt provision

The petition challenging the provision of the Contempt of Courts Act has been filed by N ram, Arun Shourie, and Prashant Bhushan.

Shruti Mahajan

A plea has been moved in the Supreme Court assailing the constitutionality of Section 2(c)(i) of the Contempt of Courts Act, 1972 which deems acts that scandalise or lower the authority of courts punishable as criminal contempt of court (N Ram and ors. v UOI).

The petition has been filed by senior journalist N Ram, former Union Minister Arun Shourie, and Advocate Prashant Bhushan. The plea assails the said provision on the grounds that it is violative of Articles 19 and 14 of the Constitution of lndia.

The petition states,

"The impugned sub-section is unconstitutional as it is incompatible with preambular values and basic features of the Constitution, it violates Article 19(1)(a), is unconstitutionally and incurably vague, and is manifestly arbitrary."

The petitioners have averred that the provision is vague and manifestly arbitrary. Therefore, they have prayed for the sub-section to be declared as unconstitutional.

The provision violates the right to free speech to the extent that it is not covered under the reasonable restrictions enlisted under Article 19(2) of the Constitution, the petition states. It is contended that "scandalising the court" cannot be said to be covered under the ground of "contempt of court" under Article 19(2).

Even if it the sub-section under challenge was permitted under the head of contempt in the "reasonable restrictions" listed in Article 19 (2), it is still disproportionate and unreasonable, the petitioners submit.

This subsection "fails the test of over-breadth" and has a chilling effect on free speech and expression, the petitioners argue. The petition also adds,

"That the impugned sub-section has an extremely wide import and is incapable of objective interpretation and even-handed application. For instance, a mere interrogation by a traffic constable about whether the red beacon on the hood of a judge's car was authorised was held to be contempt on the grounds of "scandalising the court"."

It is further contended,

"..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."
Plea filed in Supreme Court

The petition also makes 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 Gopalakrishanan was forced to appear in the court on a stretcher, following summons by the court in a contempt case.

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

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

In addition to being violative of freedom of speech, the plea adds, that the subsection is "incurably vague". Therefore, it is impossible to limit and demarcate the scope of the provision.

This makes the provision arbitrary and in violation of the requirement of non-arbitrariness under Article 14 of the Constitution, the petitioners assert. The provision also fails the test of manifest arbitrariness laid down by the Apex Court in the cases of Shayra Bano vs UOI and Navtej Singh Johar vs UOI, the plea contends.

It is further contended that the provision fails the test of proportionality as laid down by the Supreme Court in Justice KS Puttaswamy v. Union of India

The petition also invokes the 2001 judgment of the Supreme Court in the case of Pallav Sheth v. Custodian where the Court had held that the legislative exercise of defining contempt would not be barred by Articles 129 and 215 of the Constitution.

On these grounds and others, the petition prays that Section 2(c)(i) of the Contempt of Courts Act be struck down as being violative of Articles 19 and 14 of the Constitution.

The petition has been filed through Advocate Kamini Jaiswal.

The development comes close on the heels of the Supreme Court taking up contempt proceedings against one of the petitioners, Advocate Prashant Bhushan.

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