Karnataka High Court Bench headed by Chief Justice Abhay Oka has issued notice to the Central government on a plea challenging constitutional validity of section 2(c)(i) of the Contempt of Courts Act, 1971 which defines criminal contempt.
The section 2(c)(i) of the Contempt of Courts Act, 1971 defines criminal contempt as publication of any matter or doing any act which:
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;
The petitioners are journalists Krishna Prasad and N Ram, as also former Union Minister of Communication and Information Technology, Arun Shourie and Advocate Prashant Bhushan and they have challenged the provision stating that it violates Article 19 and 14 of the Constitution, is incurably vague and manifestly arbitrary.
Each of the petitioners has had a case of criminal contempt against them at one point of time or another. Krishna Prasad, as editor of Outlook was charged for reporting allegations of corruption against 6 former Chief Justices of Supreme Court of India. N ram was charged for contempt as he was amongst many who made statement condemning the way Mathrubhumi Editor K Gopalakrishanan was forced to appear in the court on a stretcher in 2001. Arun Shourie was charged with contempt for writing an opinion piece titled “If shame had survived” criticising then sitting judge of Supreme Court, Justice Kuldip Singh as the Commissioner for conducting enquiry in improper manner into allegations against former Chief Minister of Karnataka; although the Supreme Court held that it did not amount to contempt. Prashant Bhushan was charged with contempt in 2009 for giving an interview to Tehelka magazine talking about corruption in judiciary; while this case is still pending, another contempt case against him resulted in his conviction. The apex court had taken suo moto cognisance of the tweets posted by Bhushan about the Chief Justice of India.
The petitioner state that the provision violates freedom of speech guaranteed under Article 19(1)(a) and does not amount to reasonable restriction under Article 19(2). It states that it restricts speech on the basis of no more than it’s a “tendency” to scandalise or lower the authority of the courts and that is constitutionally impermissible. They have cited a judgment from the US Supreme Court stating that the real test for constitutionally permissible restrictions of speech, even if it technically amounts to contempt should be “clear and present danger to the administration of justice”
They further assert that the provision fails the test of overbreadth and the offence of “scandalizing the court” is rooted in colonial assumptions and objects, which have no place in democratic constitutionalism. The petitioners assert that the overbreadth of the words of the provision and the resulting reality of its inconsistent application has the effect of threatening dissenters and critics into silence on pain of criminal penalty.
The definition of criminal contempt has an extremely wide import and is incapable of objective interpretation and even-handed application, states the petition.
The petition questions the use of the provision even if individual judges are criticised and in some cases even if they are retired judges. Its says, “Contempt proceedings have also been initiated on the basis of criticism of former judges of the Hon’ble Supreme Court and the High Courts, on the grounds that even though they have ceased to exercise judicial functions, criticism of them would nevertheless scandalise the court.”
The petition further states that “the overbroad language of the impugned sub-section leaves open the possibility of it being used to punish speech which does not interfere with judicial proceedings or the administration of justice”.
The petition states that the provision fails the test of proportionality as well as the test of manifest arbitrariness laid out by the apex court in different pronouncement. The petition states that for the other subsections of section 2(c), whose constitutional validity has not been challenged, guidelines and rules must be framed so as to avoid the violation of principles of natural justice as well as arbitrary exercise of power by individual judges.