Petitioners N.Ram, Prashant Bhushan and Arun Shourie ask that the Court declare s. 2 (c) (i) of the Contempt of Courts Act, 1971 (‘Act’) to be unconstitutional and in violation of Articles 19 and 14 of the Constitution of India, 1950.

The petitioners’ case primarily rests on the free speech argument, as well as the vague and arbitrary wording of s. 2 (c) (i).

Criminal Contempt Violates Free Speech

The first argument is that criminal contempt as per s. 2 (c) (i) of the Act is far too broad a limit on free speech. They argue that as per settled law and established precedent, any limit on free speech that is listed in Article 19(2) must be a narrow one—this subsection, they claim, casts a wide dragnet and is thus unconstitutional.

Further, they contend that this subsection criminalises action that does not in any way interfere with judicial proceedings or the administration of justice, including for instance speech directed at particular judges rather than the Court itself. Additionally, they argue that the framing of the subsection criminalises the harm some speech may cause, rather than the harm it actually causes. That is, it does not require some ‘proximate and tangible’ harm to be likely in order for speech to be criminal. The petitioners refer to the judgment of the Supreme Court in S. Rangarajan v P Jagjivan Ram which clarified that the speech in question must be connected to an anticipated danger in the sense of a ‘spark in a powder keg’. They argue that the language of ‘tendency’ in the statute in question does not meet this standard.

Next, they discuss the notion of the ‘chilling effect’, which may be summed up thus: “a situation where citizens are in fear of the Court’s arbitrary power for words of criticism on the conduct of judges, in or out of court.” Here, they emphasise the importance of criticism in a functioning democracy, which they claim this law potentially cripples.

By looking at the Constituent Assembly debates, they argue that ‘scandalising the court’, was not contemplated as a reasonable restriction under Article 19(2). The Act was introduced in 1971 and goes beyond the scope of restrictions to free speech as determined by the Assembly.

Finally, they argue that the offence of ‘scandalising the court’ has its roots in racist laws originating from colonial rule, which the petitioners argue have no place in an independent democracy. Furthermore, similar laws have been wiped from England for the same reasons of anachronism, and to foster a healthier democracy. They emphasise that other subsections and sections of the same Act define contempt in ways that are less concerning, and therefore the existence of s. 2 (c) (i)  is unnecessary because it serves only to widen the dragnet already cast by the rest of the Act.

 

Vague Laws May ‘Trap the Innocent Without Warning’

The second argument that is made is that the law in question is too vague. As discussed above, the limits of the law are impossible to determine, and ‘scandalising the court’ is likely to be interpreted in vastly different and subjective ways by different judges. They refer to the ruling in Kartar Singh v. State of Punjab, where it was held that vague laws may “trap the innocent without warning”. As such, they assert that this is an inherently uncertain and unstable law, and is thus in contravention of the principles of equal treatment and non-arbitrariness enshrined in Article 14 of the Constitution.

 

Manifest Arbitrariness a Ground to Hold S.2 (c ) (i) Unconstitutional

Finally, they argue that the Court in two recent cases, Shayara Bano v Union of India and Navtej Johar v Union of India affirmed ‘manifest arbitrariness’ as a ground to declare a law unconstitutional. Accordingly, s. 2 (c) (i) because of its wide and unclear definition may be used in differing and inconsistent ways, thus making it ‘manifestly arbitrary’.