SC to hear on Thursday plea by senior journalists on validity of contempt law

The Supreme Court is to take up on Thursday a plea filed by senior journalists N Ram and Arun Shourie, along with activist-advocate Prashant Bhushan, challenging the validity of the Contempt of Courts Act, for violating fundamental rights to freedom of speech and equality.

A bench of Justices Arun Mishra, B R Gavai and Krishna Murari would on August 13 consider the writ petition filed jointly by Ram, Shourie and Bhushan claiming the provision was likely to be used to "stifle criticism and freely discuss the acts of the judiciary".

The petitioner sought a declaration that Section 2(c)(i) of the Contempt of Courts Act was unconstitutional as it was incompatible with preambular values and basic features of the Constitution.

They contended the provision violated Article 19(1)(a) and was unconstitutionally and incurably vague, besides being manifestly arbitrary.

Section 2(c)(i) stated that criminal contempt means the publication (whether by words, spoken or written or by signs or by visible representation) of any matter or doing of any other act, which scandalises or tends to scandalise or lowers or tends to lower the authority of any court.

The petition had a fair share controversy. The Supreme Court on the administrative side last week sought an explanation from its registry for listing the matter by "mistake" before a bench of Justices D Y Chandrachud and K M Joseph, "ignoring established practice and procedure".

Since the petition by Ram and others also sought to stay on the ongoing contempt proceedings against advocate Bhushan, it could not have been listed before any other bench, sources said.

Bhushan faced contempt proceedings for his allegation of corruption among former Chief Justices of India, made in Tehelka magazine interview in 2009. The matter would be considered from August 17 by the court, which had rejected his explanation. He faced yet another contempt case for his tweets made in June 2020. The judgement has already been reserved in this case. Both the matters were considered by a bench led by Justice Mishra.

During the pendency of both the matters, the joint petition was filed by advocate Kamini Jaiswal on behalf of the three citizens including Bhushan.

In their plea, the petitioners claimed that the sub-section had an extremely wide import and was incapable of objective interpretation and even-handed application.

The petitioners also claimed the provision of criminalised speech in the absence of proximate and tangible harm. "By criminalising contempt of court in sweeping and absolute terms, the sub-section raises a prior restraint on speech on matters of public and political importance," they said.

The language of a tendency of scandalising failed the test of proximate cause or "spark in a powder keg". The dissenting and critical views almost always have such a tendency and has the effect of tangling speech of this kind as a result, they pointed out.

Among other grounds, they said the provision had a constitutionally chilling effect and failed the test of proportionality. The offence was rooted in colonial assumptions and objects with no regard to fundamental rights in a democracy, including freedom of speech, equality and equal treatment.

Eminent journalists Ram and Shourie, who is also a former Union Minister, themselves have faced contempt of court at different points of time.