Explained: N Ram, Arun Shourie and Bhushan’s plea against contempt of court law

A writ petition has been filed by journalist N Ram, former Union Minister Arun Shourie and Prashant Bhushan challenging the constitutional validity of Section 2(c)(i) of the Contempt of Courts Act, 1971.
N Ram, Arun Shourie and Prashant Bhushan
N Ram, Arun Shourie and Prashant Bhushan

Days after Supreme Court initiated suo motu contempt proceedings against advocate Prashant Bhushan over two of his tweets against the Judiciary, a writ petition has been filed by journalist N Ram, former Union Minister Arun Shourie and Prashant Bhushan himself, challenging the constitutional validity of Section 2(c)(i) of the Contempt of Courts Act, 1971.

Section 2(c)(i) states: "criminal contempt" means 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) scandalous or tends to scandalise or lowers or tends to lower the authority of any court.

This is the section that has been challenged in court. The petition has said that this sub-section of the law 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.”

What is contempt of court

As per the law, contempt refers to the offence of showing disrespect to the dignity or authority of a court. The Act divides contempt into civil and criminal contempt. Civil contempt refers to the wilful disobedience of an order of any court. Criminal contempt includes any act or publication which: (i) ‘scandalises’ the court, or (ii) prejudices any judicial proceeding, or (iii) interferes with the administration of justice in any other manner. ‘Scandalising the Court’ broadly refers to statements or publications which have the effect of undermining public confidence in the judiciary. The current challenge is to the first part of criminal contempt.

What the fresh petition wants

The petition states that the sub-section “fails the test of overbreadth,” that it “abridges the right to free speech and expression” and “creates a chilling effect on free speech and expression.”

The petition also says that 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. 

The plea adds that the phrase "scandalises or tends to scandalise" invites subjective and “greatly differing readings and application which is incapable of being certain and even-handed,” and so the offence violates the Article 14 demands of equal treatment and non-arbitrariness.

“The whole of the impugned subsection is vague and incapable of redress. No possibility of carving out and saving a constitutionally valid portion of the provision exists,” the petition states.

The plea adds that the aim of imposing restrictions on freedom of speech on the ground of contempt of court is to protect the administration of justice but this subsection is often used to and is likely to be used in the future to stifle criticism and discussions about the judiciary “The whole object of the fundamental right to free speech is for citizens to be able to freely critique the functioning of public institutions as well as any individual manning those institutions without fear of criminal prosecution,” the plea adds.

The sub-section was once reviewed in 2018

This is not the first time that criminal contempt has been challenged. In fact, the Law Commission of India had in 2018 also deliberated upon whether contempt should be restricted to civil contempt, but decided against it. The Commission chaired by Justice BS Chauhan observed that there were a high number of civil (96,993) and criminal (583) contempt cases pending in various High Courts and the Supreme Court that justify the continuing relevance of the Act. As far as the offence of ‘scandalising the Court’ was concerned, the Commission noted that the United Kingdom had abolished the offence in its contempt laws (the last offence of Scandalising the Court in the UK was in 1931), but India continues to have a high number of criminal contempt cases. Second, the offence of scandalising the Court continues to be punishable in the UK under other laws.  The Commission observed that abolishing the offence in India would leave a legislative gap.

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