Listing Controversy In SC: Petition Challenging Contempt Law Removed From Bench Of Justices Chandrachud & KM Joseph

In a dramatic development, the petition challenging the constitutionality of the offence of 'scandalizing the court' under Section 2(c)(i) of the Contempt of Courts Act has been removed from the bench of Justices D Y Chandrachud and K M Joseph.

The writ petition filed by N Ram (former Editor and Managing Director of 'The Hindu'), Prashant Bhushan, Advocate, and Arun Shourie, former Union Minister, was listed before the bench headed by Justice Chandrachud on August 10 as per the advance cause list published on August 6.

The unofficial explanation is that the listing of the case before the bench of Justice Chandrachud was a mistake. 

"As per the practice and procedure in use, the said matter should have been listed before the Bench which is already seized with a similar matter, but it has been listed by ignoring established practise and procedure.  In this regard, explanations of concerned officials have been called", the reports said.

A bench headed by Justice Arun Mishra is considering two contempt cases against Prashant Bhushan. One is an 11-year old case over his remarks in 2009 to an interview in Tehelka magazine that at least half of the 16 CJIs were corrupt. Another is a suo moto case taken two weeks back over two of his tweets about CJI and Supreme Court.

On August 4, the bench - also including Justices B R Gavai and Krishna Murari - reserved orders to consider the explanation tendered by Bhushan in the 2009 case.

The next day, the bench reserved orders in the recently taken contempt case.

The petition, which was filed after contempt notice was served on Bhushan, challenged Section 2(c)(i) of the Contempt of Courts Act as vague, arbitrary, subjective and leading to violation of fundamental right to free speech.

The petitioners state that the offence is "rooted in Colonial assumptions", 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 as violative of Article 14 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).