Karnataka High Court Issues Notice To Centre On Plea Challenging Section 2(c)(i) Of Contempt Of Courts Act

The Karnataka High Court on Tuesday issued notice on a petition challenging the constitutional validity of Section 2(c)(i) of the Contempt of Courts Act, 1971, which criminalises publication of such matter that may "scandalize the courts". A Bench led by Chief Justice Abhay S. Okay has issued notice to the Central Government on the petition filed by journalists Krishna Prasad and N. Ram, former Union Minister Arun Shourie and Advocate Prashant Bhushan. The matter is likely to be listed next on 22 February. Section 2(c)(i) defines criminal contempt as publication or doing of any act that "scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court". The petitioners have challenged the provision on the ground that it violates Article 19 and 14 of the Constitution, is incurably vague and is manifestly arbitrary. Fails the Test of Overbreadth It is submitted that the impugned sub-section has an extremely wide import and thus, fails the test of "overbreadth". The plea states, "It is settled law that any legislation having the effect of restricting the right to free speech and expression on any of the grounds enumerated in Article 19(2) must be couched in the narrowest possible terms and cannot cast a "wide net". It is liable to be struck down as overbroad if it does so." The Petitioners have cited instances such as initiation of contempt proceedings against a traffic constable for merely interrogating whether the red beacon on the hood of a judge's car was authorised, to illustrate 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. In effect, the impugned sub-section grants courts at every level an absolute power to quell all criticism of the courts and of judges." Criminalises Speech in the absence of Proximate & Tangible Harm The Petitioners have submitted that the impugned provision restricts speech on the basis of "tendency" to scandalise or lower the authority of the courts. "This is constitutionally impermissible in the absence of some evidence or connection which removes alters the harm from a purely speculative one to a real, proximate and likely one...Right to free speech and expression cannot be abridged on the basis of a mere speculation of harm. Nor can the right to free speech be restricted in the absence of real and proximate harm," the plea states. Reliance is placed on S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574. It is averred that until an injury to sentiments crystallises into a likelihood of tangible and material harm, the speech remains protected by Article 19(1)(a) and criminalisation of such speech remains incapable of amounting to a reasonable restriction under Article 19(2). Impugned provision has Constitutionally impermissible 'Chilling Effect' It is submitted that whereas the Supreme Court has time and again held that the judiciary as an institution must be open to public criticism, 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. "This has a chilling effect on free speech and expression, and silences legitimate criticism and dissent to the detriment of the health of the democracy," the Petitioners contend. They further averred, "The threat of criminal penalty associated with the offence of scandalising the court places a real and immediate burden on the exercise of the free speech right. It demonstrably deters the airing of critical viewpoints by members of the general public, creates serious disincentives to journalism about the judiciary and so impoverishes the public sphere." Impugned provision does not control the meaning of "Contempt of Court" U/A 19(2) The Petitioners have pointed out that the impugned sub-section was introduced in 1971, and was not contemplated as a ground for restriction under Article 19(2) during the adoption of the Constitution. It is contended, "The meaning of "contempt of court" under Article 19(2) cannot post-facto be extended by legislation to include "scandalising the court". It would be wholly unconstitutional to allow legislation to expand the scope of restrictions at the cost of the breadth and vigour of the fundamental right that they curtail." Fails the Test of Proportionality The test of proportionality consists of the following prongs: The existence of a legitimate state aimThe existence of a rational nexus between the aim and the infringement of the right ('the rationality prong')The infringement is the least restrictive measure available for the fulfilment of the aim ('the necessity prong')A balance is struck between the extent of the restriction and the benefit that the State...

Karnataka High Court Issues Notice To Centre On Plea Challenging Section 2(c)(i) Of Contempt Of Courts Act

Akshita Saxena

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