On Thursday, the Supreme Court accepted the plea of the petitioners under Section 2(c)(i) of the Contempt of Courts Act, 1971 to withdraw a writ petition challenging the constitutionality of the offence of ‘scandalizing the court’.
The petitioners were allowed by the Court to approach an appropriate forum and move the Apex Court again if needed.
The matter was taken by a bench of Justices Arun Mishra, BR Gavai & Krishna Murari for hearing.
The petitioners were represented by Senior Advocate Rajeev Dhavan who expressed the withdrawal of the plea.
Dhavan told, “At present many cases are before your lordships, so I don’t want this matter to get entangled with the others, or vice versa. This is not the appropriate stage to take this up. I seek liberty to file it at a later stage.”
Justice Arun Mishra mentioned that they are “allowing withdrawal, but not permitting the matter to be filed before us again”.
The indulgence of the Court to file the instant plea before High Court was sought by Dhavan and it was quoted, “It’s an important issue, hence the question must be kept open and decided at the appropriate time and that “maybe I will come back with this in 2 months.”
The petitioners Advocate Prashant Bhushan, N Ram (Former Editor and Managing Director of ‘The Hindu), and Arun Shourie (Former Union Minister) expressed violation of fundamental right to free speech and challenged the provision as vague, arbitrary and subjective.
On August 10, before a bench comprising Justices D Y Chandrachud and K M Joseph, the petition was initially listed. Though, the case was removed from that bench.
Arguments against section 2(c)(i) of Contempt Courts Act
Arguments were raised by the Petitioner 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.
Advocate Kamini Jaiswal filing the petition expressed that “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.”
The offence being “rooted in Colonial assumptions” have no place in a democracy, expressed the Petitioner.
Being highly subjective the provision intends great emphasis on different readings and applications. Article 14 which demands equal treatment and non-arbitrariness has been violated by looking at the vagueness of the offence.
“For instance, in P N Dua vs P. Shiv Shankar, the respondent was not held guilty of scandalizing 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.”
On the basis of principles laid down by Supreme Court in Shayara Bano (Triple Talaq case) and Navtej Johar (decriminalisation of homosexuality) the principle of Article 14 on the ground of “manifest arbitrariness” has also been violated.
The offence of scandalizing the judiciary as a form of contempt of court based on UK Law Commission‘s recommendation was abolished as the law was vague and not compatible with freedom of speech in 2013 by the United Kingdom.
The instant plea was filed following the contempt proceedings taken against Bhushan over two of his tweets about the Chief Justice of India and the Supreme Court.
The Apex Court had reserved orders on the contempt case on August 5.