NE LEGAL BUREAU
NEW DELHI, AUG 1
Former union minister Arun Shourie, veteran journalist N Ram, and activist lawyer Prashant Bhushan have moved the Supreme Court challenging the constitutional validity of a legal provision dealing with criminal contempt for “scandalizing the court”, saying it was violative of freedom of speech and right to equality.
The petition, which may come up for hearing next week, challenged the validity of Section 2(1)(c) of the Contempt of Courts Act, 1971 as being unconstitutional and incompatible to the basic feature of the Constitution and is vague and manifestly “arbitrary”.
The provision defines what constituted criminal contempt and said that if by way of publication of words, the dignity of the courts is lowered and if they scandalize the courts then the offence of contempt of court is deemed to have been committed.
“The impugned sub-section is unconstitutional as it is incompatible with preambular values and basic features of the Constitution. It violates Article 19(1)(a) (freedom of speech and expression), is unconstitutional and incurably vague…,” said the plea filed through lawyer Kamini Jaiswal.
The filing of the plea challenging the validity of the provision assumes significance in view of the fact that a three-judge bench headed by Justice Arun Mishra on July 22 had issued a show-cause notice to Bhushan after taking note of a petition urging it to initiate criminal contempt proceedings against him for his alleged tweets against the judiciary. This case is listed for hearing on August 5.
The top court is also scheduled to hear on August 4 another criminal contempt case against Bhushan which was initiated in 2009 over his alleged comments against former CJIs in an interview given to a magazine.
The petition alleged that the provision violated the freedom of speech and expression.
The provision violates the right to free speech to the extent that it is not covered under the reasonable restrictions enlisted under Article 19(2) of the Constitution, it said.
The offence of ‘scandalizing the court’ cannot be considered to be covered under the category of the contempt of court and under Article 19(2) of the Constitution which permitted reasonable restrictions on free speech, it said.
The plea referred to the apex court judgments in the triple talaq case and in the decriminalization of homosexuality and said that the provision can be challenged on the ground of “manifest arbitrariness” also.
It also referred to the cases where N Ram and Shourie, a journalist-turned-politician, had to face criminal contempt proceedings and sought that the provision is held unconstitutional.
The petition further referred to a fact that in England now the issue scandalizing the court is no more ground for initiation of contempt.
Prashant Bhushan moves SC, seeks recall of order issuing contempt notice against him
Activist-lawyer Prashant Bhushan has moved the Supreme Court seeking recall of its July 22 order by which notice was issued against him in a contempt proceeding initiated for his alleged contemptuous tweets against the judiciary.
In his plea, Bhushan has sought a direction to declare that the apex court”s secretary-general has allegedly “acted unconstitutionally and illegally” in accepting a “defective contempt petition” filed against him, which was initially placed on the administrative side and later on the judicial side.
Besides this, Bhushan has sought a stay on the July 22 order and also on another order for listing on August 4 the pending separate contempt case filed against him in 2009.
He has said in his plea that the top court should “desist” from hearing both these matters by video-conferencing and list them when the physical hearing resumes.
On July 22, the apex court had issued notice to Bhushan in the contempt proceeding initiated against him for his alleged tweets, saying his statements prima facie “brought the administration of justice in disrepute”.
Later, on July 24, the court had said it would hear on August 4 the 2009 contempt case against Bhushan and journalist Tarun Tejpal for allegedly casting aspersions on some sitting and former top court judges in an interview to a news magazine. Tejpal was the then editor of the magazine.
In his plea, Bhushan has alleged that the contempt petition filed against him by one Mahek Maheshwari regarding a tweet posted by him “was defective” as the consent of either the Attorney General or the Solicitor General was not obtained.
“It is most respectfully submitted that this court erred in taking suo motu cognizance of a petition that was defective, to begin with, and therefore, what could not have been done directly was done indirectly,” the plea said.
It alleged that by taking cognizance on Maheshwari’s petition, the court has “dispensed with the requirement of taking consent of the Attorney General or the Solicitor General which is the express and non-derogable mandate of law.”
While referring to the Supreme Court Rules 2013, the plea said that the “defective contempt petition” ought to have been returned to Maheshwari.
“However, it appears from the order dated July 22, 2020 ….. the respondent (secretary-general), in complete disregard for the mandate of law, proceeded to entertain the said petition on the administrative side and thereafter placed the matter on the judicial side before the bench comprising Justices Arun Mishra, B R Gavai and Krishna Murari on July 22,” the plea said.
Bhushan has claimed in his plea that secretary-general’s action in “unilaterally” placing the contempt petition before a bench presided over by Justice Mishra was “contrary to the settled law” as laid down by the top court which had categorically held that “Chief Justice of India is the master of the roster and enjoys the exclusive prerogative to constitute benches and assign matters to benches.”
“It is submitted that the actions of the respondent (secretary-general) amount to a usurpation of the powers of the Chief Justice and are therefore clearly unlawful being contrary to settled law as well as the Supreme Court Rules 2013,” the plea claimed.
It alleged that actions of secretary-general leading to initiation of contempt proceedings against Bhushan as well as the notice as per which he has been directed to appear in person before the court on August 5 “constitute an infringement of the petitioner’s right to life and liberty under Article 21 of the Constitution.”
