N. Ram, Arun Shourie and Prashant Bhushan move the Supreme Court against criminal contempt law

Published : August 01, 2020 18:43 IST

N. Ram, former Editor-in-Chief of The Hindu group of publications. Photo: Emmanual Yogini

Prashant Bhushan (left) and Arun Shourie at a press conference in New Delhi on November 15, 2019. Photo: SHIV KUMAR PUSHPAKAR


N. Ram, former Editor-in-Chief of The Hindu Group, along with former Union Minister Arun Shourie and senior advocate Prashant Bhushan have moved the Supreme Court, challenging the constitutional validity of the Contempt of Court Act, 1971.

On July 31, they jointly filed an instant writ petition under Article 32 of the Constitution against criminal contempt “as being 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”.

The petition, filed through advocate Kamini Jaiswal, specifically questions the legality of Section 2(c)(i) of the Act as being violative of Articles 19 and 14 of the Constitution. The impugned sub-section holds 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 scandalises or tends to scandalise, or lowers or tends to lower the authority of any court” to be criminal contempt.

The petition says that the above sub-section creates a “chilling effect” by abridging the right to free speech and expression in the absence of tangible and proximate harm. The offence of “scandalising the court”, the petition says, 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 sphere. It contends that the phrase “scandalises or tends to scandalise” invites subjective and greatly differing readings and the application of which is incapable of being certain and even-handed.

The Supreme Court recently initiated suo motu contempt proceedings against Prashant Bhushan for his Twitter posts. The court took particular offence at two tweets that concerned incumbent and former Chief Justices of India (CJI). His tweets brought “the administration of justice into disrepute” said a Bench of the Supreme Court led by Justice Arun Mishra.

On June 27, Bhushan had tweeted about the role of the Supreme Court in the “destruction” of democracy during the last few years, and had mentioned in the tweet the “role of the last 4 CJIs”. On June 29, he shared a photograph of CJI S.A. Bobde sitting astride a Harley Davidson bike and tweeted: “CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access Justice! (sic).” Within 72 hours of the contempt notice being served to Bhushan, Twitter withheld his tweets after its counsel nudged them to take appropriate measures in view of the Supreme Court’s “prima facie” opinion.

Soon after, the same Supreme Court Bench expedited hearings in another contempt case against Bhushan for an interview he gave to Tehelka magazine in 2009 in which he had made some remarks on corruption in the judiciary. The case had been pending for eight years and the last hearing was in 2012. Now, both the contempt cases have been listed in quick succession in August.

A statement signed by 131 prominent citizens on July 27 said the initiation of criminal proceedings against Bhushan, who had articulated some of the concerns of society about the judiciary and its conduct in the past few years, seems to be “an attempt at stifling such criticism, not just by Prashant Bhushan but by all stakeholders in the Indian democratic and constitutional set-up.” Among its signatories were Justice Madan B. Lokur, former Judge of the Supreme Court, Justice A.P. Shah, former Chief Justice of the Delhi High Court, Admiral Ramdas, former Chief of Naval Staff, D. Raja, general secretary of the Communist Party of India, Manoj Jha, M.P., Yogendra Yadav, Najeeb Jung, Wajahat Habibullah, Harsh Mander and Arundhati Roy.

The statement, issued in solidarity with Bhushan, called upon the Supreme Court to withdraw the contempt proceedings against Bhushan in the interest of justice and fairness, and to maintain the dignity of the apex court. The court must be open to public discussion without the fear of retribution, it said. “The principle that criticism of the judiciary should not be stifled by indiscriminate use of the power of contempt has been recognised by the Supreme Court as well as by academics and advocates of repute,” it said.

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