Bhushan joins plea in Supreme Court against ‘chilling’ effect of contempt law on free speech

Initially, the court took cognisance of a complaint made to it regarding a June 29 tweet by Bhushan commenting on photos of Chief Justice of India S A Bobde seated on a Harley Davidson bike.
Less than 10 days after the Supreme Court issued him a contempt notice for two of his tweets on the judiciary, advocate Prashant Bhushan has moved the top court saying the action constitutes an “infringement” of his “right to life and liberty under Article 21 of the Constitution”.

Bhushan, along with veteran journalists N Ram and Arun Shourie, also filed a separate plea challenging the Constitutional validity of Section 2(c)(i) of the Contempt of Courts Act, 1971.

This provision defines what amounts to criminal contempt: publication of any matter that “scandalises or tends to scandalise, or lowers or tends to lower the authority of any court.”

Bhushan also raised questions on the “sudden listing” of another 2009 criminal contempt matter against him for hearing in the coming week saying it “smacks of malice in law” and “reflects the intention…to somehow or the other convict the Petitioner for contempt”.

An SC bench of Justices Arun Mishra, B R Gavai and Krishna Murari had issued notice to Bhushan and Twitter Incorporated, USA, on July 22 taking exception to the tweets and stating that they “brought the administration of justice in disrepute”.

Initially, the court took cognisance of a complaint made to it regarding a June 29 tweet by Bhushan commenting on photos of Chief Justice of India S A Bobde seated on a Harley Davidson bike.

However, during the hearing on July 22, the court also took cognisance of another tweet by Bhushan dated June 27 regarding the judiciary which it said was carried by The Times of India.

The court will hear the matter on August 5.

On August 4, the SC will also hear a 2009 criminal contempt case against Bhushan and former editor of Tehelka magazine Tarun Tejpal over statements by the former against some former Chief Justices of India and then Chief Justice S H Kapadia in an interview to the magazine.

Bhushan, in his writ petition filed through advocate Kamini Jaiswal, urged the court to declare the action of entertaining what he claimed was “a defective contempt petition filed by one Mahek Maheshwari on the administrative side and thereafter listing it on the judicial side on 22.07.2020 as unconstitutional, illegal, void and non-est”.

He said Maheshwari’s petition was defective as the consent of the Attorney General or the Solicitor General had not been obtained contrary to the mandate of Section 15 of the Contempt of Courts Act 1971 and the rules laid down in 1975.

So, as per the Supreme Court Rules 2013, Bhushan said, the “defective contempt petition” ought to have been returned.

As per its order on July 22, Bhushan said, the court took “suo motu” cognizance of the tweet alluded to in Maheshwari’s petition, as well as another tweet of his that appeared in the Times of India newspaper that day. “It is most respectfully submitted that this Hon’ble 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”, Bhushan added.

The plea which has the Secretary General of the SC as respondent said that “the action of the Respondent in unilaterally placing the contempt petition filed by Shri Maheshwari before the Hon’ble Bench…was contrary to the settled law…that the Chief Justice of India is the Master of the Roster”.

On the 2009 case, Bhushan said, its “sudden appearance,” with “merely two days notice” is not only inconsistent with SC procedure but “reflects the intention of the Respondent to somehow or the other convict the Petitioner for contempt.”

The other plea by him, Ram and Shourie also filed through Advocate Jaiswal said Section 2(c)(i) of the Contempt of Courts Act, is “violative of Articles 19 and 14 of the Constitution of lndia.”

The section is incompatible with preambular values and basic features of the Constitution, it violates Article 19(1)(a), is “unconstitutionally and incurably vague,” said their petition.

It does not constitute a reasonable restriction on free speech as it “fails the test of overbreadth…abridges the right to free speech and expression in the absence of tangible and proximate harm…and.. creates a chilling effect on free speech and expression”, said the plea.

The petitioners argued that the “offence of “scandalizing the court” is rooted in colonial assumptions which have no place in legal orders “committed to democratic constitutionalism and the maintenance of an open robust public sphere”.

The phrase “scandallses or tends to scandalise” invites subjective and greatly differing readings and application which is incapable of being “certain and even-handed,” the plea said. That’s why, it added, “the offence violates the Article 14 demands of equal treatment & non-arbitrariness.”

Bhushan, in his individual plea, has sought recall of the notice issued to him and the orders listing the maters for hearing via video conferencing in the coming week. Alternatively, he wants the court not to hear them via virtual mode but only when physical hearings resume.

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