‘Offence of scandalising the court rooted in colonial assumptions’: Plea in Supreme Court

In a significant development, N Ram, former editor and Managing Director of 'The Hindu', Arun Shourie, former Union Minister and Prashant Bhushan, Advocate, have moved the Supreme Court challenging the constitutionality of Section 2(c)(i) 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 filed under Article 32 of the Constitution challenges the provisions as being violative of fundamental right to free speech under Article 19(1)(a) of the Constitution, as being vague and subjective, and also as being manifestly arbitrary.

"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 filed through Advocate Kamini Jaiswal, legal news website LiveLaw.in has reported.

Incidentally, Advocate Bhushan is facing two criminal contempt proceedings from the SC. On August 4, a bench led by Justice Arun Mishra is set to hear an 11-year-old contempt case take against him over his comments against former Chief Justices of India in an interview given to 'Tehelka' magazine in 2009. Last week, the SC had taken

another suo moto contempt case against him over two of his tweets about SC and CJI, which is listed on August 5.

The provision defines criminal contempt as the publication (whether by words, spoken or written, or by signs or by visible representations or otherwise) of any matter or the doing of any other act whatsoever, which - scandalizes or tends to scandalize, or lowers or tends to lower the authority of the court.

The petitioners argue that the provision :

• Fails the test of over-breadth.
• Abridges the right to free speech and expression in the absence of "real and tangible" harm.
• Creates a "chilling effect" on the free speech and expression.

"...by criminalizing criticism of the court in sweeping and absolute terms, the impugned sub-section raises a prior restraint on speech on matters of public and political importance", the plea states.

It is contended that the offence of "scandalizing 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.

It is further stated that the provision is "rooted in colonial assumption and objects", which have no place in a democracy.

The provision is 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 F.l.R. under the l.P.C. should be registered against him", the plea states.

The provision is also challenged on the ground of "manifest arbitrariness", on the basis of principles laid down by the SC in Shayara Bano (Triple Talaq case) and Navtej Johar (decriminalization of homosexuality).

The petition narrates that the petitioners had to face criminal contempt proceedings at various stages.

N Ram had to face a criminal contempt proceedings in Kerala High Court over a publication of court proceedings in Kollam Liquor tragedy case, which was later closed.

Shourie had to face contempt proceedings over an editorial written about the functioning of Justice Kuldeep Singh Commission. 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).

In 2013, the United Kingdom had abolished the offence of scandalizing the judiciary as form of contempt of court based on UK Law Commission's recommendation that the law was vague and not compatible with freedom of speech.