SC To Consider On August 10 Plea Against Offence Of 'Scandalizing The Court' Under Contempt Of Courts Act

A Supreme Court bench comprising Justices D Y Chandrachud and K M Joseph will consider for admission on August 10 the writ petition challenging the constitutionality of the offence of 'scandalizing the court' under Section 2(c)(i) of the Contempt of Courts Act, 1971.

The petition filed by N Ram (former Editor and Managing Director of 'The Hindu), Advocate Prashant Bhushan and Arun Shourie (former Union Minister) challenges the provision as vague, arbitrary, subjective and leading to violation of fundamental right to free speech.

Notably, the petition was filed following the contempt proceedings taken against Bhushan over two of his tweets about the Chief Justice of India and the Supreme Court. On August 5, the SC reserved orders on the contempt case.

The petitioners argue that the provision :

• fails the test of over-breadth.
• abridges the right to free speech and expression in the absence of "real and tangible" harm.
• creates a "chilling effect" on the free speech and expression.

"The impugned sub-section is unconstitutional as it is incompatible with preambular values and basic feature of the Constitution. It violates Article 19(1)(a), is unconstitutional and incurably vague, and is manifestly arbitrary", reads the petition filed through Advocate Kamini Jaiswal.

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).

In 2013, the United Kingdom, had abolished the offence of scandalizing the judiciary as form of contempt of court based on UK Law Commission's recommendation that the law was vague and not compatible with freedom of speech.