Senior journalist N Ram, former Union minister Arun Shourie and advocate Prashant Bhushan moved the Supreme Court (SC) on Friday challenging the validity of section 2(c)(i) of Contempt of Courts Act, which criminalises publication of any matter that could scandalise or lower the authority of courts.
The petitioners contended that the provision is violative of freedom of speech under Article 19 of the Constitution and effectively gags discourse on matters of public importance.
“It violates right to free speech and expression guaranteed under Article 19(1)(a). It is unconstitutional as it is incompatible with the preambular values and basic features of the constitution,” the plea said.
The SC had recently invoked the provision to issue notice to Bhushan for his tweets against Chief Justice of India (CJI), SA Bobde and the apex court.
It was submitted that the provision raises a prior restraint on speech on matters of public and political importance by criminalising criticism of court in sweeping and absolute terms.
“The offences of scandalising the court is rooted in colonial assumptions and objects and have no place in legal orders committed to democratic constitutionalism,” the petition said.
The Contempt of Court at provides for civil and criminal contempt.
Civil contempt is defined under Section 2(b) as wilful disobedience to any judgment, order or direction of a court or wilful breach of an undertaking given to a court.
Section 2(c) deals with criminal contempt and attempts to punish publication of any material or commission of any act against courts.
This provision has three sub-clauses, which explain when such a publication or act could amount to criminal contempt.
First, if such publication or act scandalises or lowers the authority of any court (sub –clause i), second, if it prejudices or interferes with any judicial proceeding (sub-clause ii) and third, if it interferes with or obstructs administration of justice (sub-clause iii).
The petitioners have challenged only sub-clause (i), which criminalises any publication or act on the ground that it scandalises or lowers the authority of the court.
The provision, it was contended, has an extremely wide import and is incapable of objective interpretation.
“For example, an interrogation by a traffic constable about whether the red beacon on the hood of a judge’s car was held to be contempt on the ground of scandalising the court,” the petition stated.
It was argued that the provision uses vague terminology, whose scope and limits are impossible to demarcate.
“In particular, the terminology ‘scandalises or tends to scandalise’ invites subjective and greatly differing readings and applications. It violates Article 14, which demands equal treatment and non –arbitrariness,” the plea added.