Bhushan joins plea in Supreme Court against ‘cooling’ result of contempt law on totally free speech


Composed by Ananthakrishnan G|New Delhi |

Released: August 2, 2020 4: 45: 32 am

Prashant Bhushan, supreme court, contempt law, free speech, Prashant Bhushan contempt law, indian express Initially, the court took cognisance of a problem made to it regarding a June 29 tweet by Bhushan talking about photos of Chief Justice of India S A Bobde seated on a Harley Davidson bike.

Less than 10 days after the Supreme Court provided him a contempt notice for two of his tweets on the judiciary, advocate Prashant Bhushan has moved the top court stating the action makes up an “infringement” of his “right to life and liberty under Post 21 of the Constitution”.

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

This arrangement defines what amounts to criminal contempt: publication of any matter that “scandalises or tends to scandalise, or lowers or tends to reduce 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 stating it “resembles malice in law” and “reflects the intention … to somehow or the other found guilty the Petitioner for contempt”.

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

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

Nevertheless, during the hearing on July 22, the court likewise took cognisance of another tweet by Bhushan dated June 27 relating to the judiciary which it stated was carried by The Times of India.

The court will hear the matter on August 5.

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

Bhushan, in his writ petition filed through supporter Kamini Jaiswal, urged the court to declare the action of entertaining what he declared was “a faulty contempt petition submitted by one Mahek Maheshwari on the administrative side and afterwards listing it on the judicial side on 22.072020 as unconstitutional, prohibited, void and non-est”.

He stated Maheshwari’s petition was defective as the approval of the Chief law officer or the Lawyer General had not been acquired contrary to the mandate of Area 15 of the Contempt of Courts Act 1971 and the rules set in 1975.

So, based on the Supreme Court Guidelines 2013, Bhushan said, the “faulty contempt petition” ought to have been returned.

According to its order on July 22, Bhushan said, the court took “suo motu” cognizance of the tweet alluded to in Maheshwari’s petition, along with another tweet of his that appeared in the Times of India paper that day. “It is most respectfully submitted that this Hon’ ble Court erred in taking suo motu cognizance of a petition that was faulty to begin with and therefore, what could not have actually been done straight was done indirectly”, Bhushan included.

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 submitted by Shri Maheshwari before the Hon’ ble Bench … contrasted the settled law … that the Chief Justice of India is the Master of the Roster”.

On the 2009 case, Bhushan stated, its “unexpected look,” with “merely two days notification” is not just inconsistent with SC treatment but “reflects the intention of the Participant to in some way or the other convict the Petitioner for contempt.”

The other plea by him, Ram and Shourie also submitted 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 area is incompatible with preambular worths and basic functions of the Constitution, it violates Article 19( 1 )( a), is “unconstitutionally and incurably vague,” stated their petition.

It does not constitute a reasonable constraint on complimentary speech as it “fails the test of overbreadth … abridges the right to totally free speech and expression in the absence of tangible and proximate damage … and. develops a chilling result on free speech and expression”, said the plea.

The petitioners argued that the “offense of “scandalizing the court” is rooted in colonial presumptions 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 considerably differing readings and application which is incapable of being “particular and even-handed,” the plea stated. That’s why, it included, “the offense breaks the Post 14 needs of equivalent treatment & non-arbitrariness.”

Bhushan, in his specific plea, has looked for recall of the notification issued to him and the orders noting the maters for hearing by means of video conferencing in the coming week. He desires the court not to hear them through virtual mode but just when physical hearings resume.

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