Dravida Munnetra Kazhagam MP D Ravikumar on Monday moved a Private Member Bill in the Lok Sabha to curtail the contempt powers of the Supreme Court and the High Courts.

A Private Member’s Bill is the only way for a parliamentarian who is not in the government, as a minister, to introduce a piece of legislation.

The DMK MP’s statement on the bill said that it proposed to bring the powers of the Supreme Court and the High Court to punish for contempt “to be circumscribed by certain basic guarantees provided in this Amendment and further circumscribed by law made by Parliament such as the Contempt of Courts Act, 1971, and the amendments thereto”.

“Some of the judgments of the Hon’ble Supreme Court in respect of the higher judiciary’s powers to punish for criminal contempt appear to indicate that the said powers are untrammeled and are not in any way limited by the provisions of the Contempt of Courts Act, 1971,” the statement added. “Such a reading appears to be based on the present, open-ended wording of Articles 129 and 215 of the Constitution.”

The MP said that the founding texts like the Constituent Assembly Debates also did not seem to have dealt with the matter in detail. Ravikumar also pointed out that such unrestrained power of an “organ of the state” was an “incongruity in a modern constitutional democracy”.

“Public criticism of all institutions including the courts is crucial in a democracy constituted by ‘We the People’,” the statement said. “Allowing the courts to exercise unlimited power to punish for contempt, even assuming that the courts will only use such power sparingly, causes a chilling effect on free expression. The power to punish for contempt of court is not only desirable but also necessary for administration of justice.”

The DMK MP said that the provisions of criminal contempt “particularly of the form that is not committed in the face of the court” were a “colonial vestige”. Ravikumar pointed out that several modern democracies had done away with “scandalising the court” as criminal contempt as it is no longer seen as a reasonable curb on the freedom of expression.

The politician’s bill stated that the Contempt of Courts Act, 1971, and the 2006 amendment to it tried to make progress in “moderating contempt powers and rationalising it with citizen’s right to free expression”.

The DMK MP also highlighted provisions in the Act, including Section 13 (a) and Section 13 (b), which curtail the use of contempt. “However, the open-ended interpretation of Articles 129 and 215 that the judicial pronouncements have given necessitates a constitutional amendment to ensure that these legislatively recognised safeguards are effectively realised.”

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Contempt of court

In the past few months, there have been several instances when contempt of court proceedings have been initiated against eminent personalities, prompting debate about the perceived partiality of the Supreme Court.

In one case, a Supreme Court bench headed by Justice Arun Mishra held senior lawyer Prashant Bhushan guilty of criminal contempt on August 14 and ordered him to either pay Re 1 as fine or spend three years in jail.

The case against Bhushan was based on two tweets from June. In one tweet, he made a remark about an undeclared emergency and the role of the Supreme Court and last four chief justices of India. The second tweet was about Chief Justice SA Bobde trying a Harley Davidson superbike in his hometown Nagpur during the coronavirus outbreak.

In another contempt case, related to an interview that Bhushan gave to the Tehelka magazine in 2009, action was taken as the lawyer made allegations of corruption in the Supreme Court and said that half of the previous 16 chief justices were corrupt.

On December 1, Attorney General KK Venugopal had granted consent to a law student to initiate contempt of court proceedings against cartoonist Rachita Taneja for two of her tweets criticising the Supreme Court for granting interim relief to Republic TV Editor-in-Chief Arnab Goswami in a case. Venugopal said her tweets were not just an “audacious assault and insult to the institution”, but also made a “clear implication” that the Supreme Court is biased towards the ruling Bharatiya Janata Party.

On November 12, Venugopal gave his consent to begin contempt proceedings against comedian Kunal Kamra, who had also spoken out against the Supreme Court granting bail to Goswami. Under 10 days, the attorney general gave approval for fresh proceedings against the comedian for a tweet directed at the chief justice.