Senior journalists N Ram and Arun Shourie, along with advocate Prashant Bhushan, have moved a petition in the Supreme Court challenging the Section 2(c)(i) of the Contempt of Courts Act 1971.
In their petition, the trio have said that this provision under the Act – which criminalises ‘scandalising’ or ‘lowering’ the authority of the court – violates the right to freedom of speech under Article 19(1)(a) of the Indian Constitution, and is also "unconstitutionally and incurably vague" and "manifestly arbitrary" (thereby violating Article 14 as well).
The petition comes at a time when one of the petitioners, advocate Prashant Bhushan, is facing two contempt of court cases in the Supreme Court at present. One relates to two recent tweets by him, including comments on a picture of the Chief Justice of India on a Harley Davidson bike, while the other case was filed back in 2009 over comments made by him to Tehelka magazine about corruption among CJIs.
The petitioners are seeking the quashing of Section 2(c)(i) of the 1971 Act, arguing that it is "unconstitutional and against the basic structure of the Constitution".
The petition explains that the fact that the terms used in the provision are undefined and subjective violate the right to equality under the Constitution:
“lt uses vague terminology whose scope and limits are impossible to demarcate. ln particular, the phrase “scandalises or tends to scandalise” invites subjective and greatly differing readings and application which is incapable of being certain and even-handed. Thus, the offence violates the Article 14 demands of equal treatment & non-arbitrariness.”
It also argues that this limb of the definition of criminal contempt violates the right to freedom of speech as "by criminialising 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".
Judgments of the Supreme Court have confirmed that prior restraints on free speech (which are forbidden under the common law system followed in the UK and US) are not permissible under the Indian Constitution, except when it comes to statements that could prejudice an actual case.
In July, the Supreme Court had initiated contempt proceedings against Prashant Bhushan and Twitter India for tweets on 27 and 29 June. In addition to the Harley Davidson one, the other tweet suggested that the four previous Chief Justices of India each played a role in ‘destroying democracy’ in the country in the last six years.
Thereafter, as many as 131 personalities, which include former judges, government servants, authors and journalists have opposed the court's actions and have asked for the proceedings against Bhushan to be dropped, including several former judges of the Supreme Court.
The next hearing regarding this new contempt case is scheduled for 5 August, while the 2009 contempt case is set to be heard by the same bench of Justices Arun Mishra, Krishna Murari and BR Gavai on 4 August.
The other two petitioner, N Ram and Arun Shourie, have also been on the receiving end of contempt cases in the past.
While Ram had to face one in the Kerala High Court over publication of court proceedings in the Kollam liquor tragedy case, Shourie faced a contempt case over an article about the Justice Kuldip Singh commission.
In the case of the latter, the court had finally ruled that the article did not amount to contempt of court.
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