CONTEMPTUOUS CONTEMPT?
perhaps so until the charge of ‘scandalization of court’ as contemplated and laid down in Section 2(c)(i) of the Contempt of Courts Act 1971 continues in the statute book. As far back as in 2005, we had published an illuminating article with the same title by late Justice P.A. Choudary, then an editorial adviser of ours, in which he decried the existence of this provision in the statute and asserted, referring to H.M. Seervai, that “…in the context of our constitutional provisions for impeachment of judges for misbehaviour and incapacity, the common law offence of scandalizing the court becomes incompatible with our constitution. …this common law contempt power, by making the allegation of misbehaviour itself a punishable offence, makes the working of those constitutional provisions nugatory and renders the whole constitutional scheme itself otiose. Thus this power running directly counter to the letter and spirit of the constitution must be taken to have been forbidden by the constitution” and that “It is the total absence of reasonableness in this class of contempt that tolls its death knell. This class of contempt assumes sub silentio that administration of justice is an absolute value. That is its fatal weakness.” It is good that, at last, the constitutionality of this provision has been challenged by the trio of human rights champions: Prashant Bhushan, Arun Shourie and N. Ram in the Supreme Court now, but it is quite bad, we feel very sad, that Prashant Bhushan should be charged and convicted under the same provision and awaiting his sentence now for just two tweets posted by him criticizing the Chief Justice of India. The first tweet concerning the CJI violating lockdown norms is a personal hit and cannot be reckoned as contempt of court, the remedy for CJI, if he is hurt, is, if he is so advised, to sue for defamation in a civil court. Of course, this editor doesn’t agree with Arun Shourie that the CJI mounting such a costly motor bike is itself an affront to his high public status and feels he can freely dance, dine and enjoy just like any other person, of course with due decorum and attention to his public status. The other tweet of course seems to be a bit too harsh and controversial, but the Court could close the case with an admonition or post it to be heard along with the constitutional challenge referred to above to a constitution bench. In any case, this editor feels and asserts that either the judiciary or legislature should intervene and remove this obnoxious provision of ‘scandalization of court’ as a ground for contempt to protect and promote freedom of speech in our country. §§§
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