Int’l & Indian Lawyers’ Associations Slam Bhushan Contempt Verdict
LAWASIA & Bar Association of India release statements expressing concerns over Supreme Court’s decision.
Prashant Bhushan continues to get support from the legal community following the Supreme Court’s decision on 14 August to hold him guilty of criminal contempt for two tweets about the apex court and Chief Justice of India SA Bodde.
While a statement by several leading lawyers like Shyam Divan, Kamini Jaiswal, Sanjay Hegde and Vrinda Grover on their ‘dismay’ over the court’s decision continues to garner support (with over 2,000 signatories and counting), domestic and international lawyers’ associations are also now expressing their concern over the verdict and requesting the Supreme Court to reconsider.
INTERNATIONAL LAW CONCERNS
LAWASIA, the Law Association for Asia and the Pacific, expressed concern about the Supreme Court’s decision in a statement on Tuesday, 18 August, particularly from the viewpoint of India’s obligations towards free speech and freedom of expression in international law.
In addition to the general protection of free speech and expression in the Universal Declaration of Human Rights and the International Covenant on Civil & Political Rights, LAWASIA notes that there are also more specific free speech protections for lawyers in international policy, including in the United Nations’ Basic Principles on the Role of Lawyers.
Principle 23 of these Basic Principles notes that in particular, lawyers “shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights”.
While they recognise that the offence of contempt exists to protect the authority of the legal process, the statement says that “it must not be used to hamper freedom of expression or silence legitimate debate.” The association goes on to argue that it is a key tenet of the rule of law to have legitimate criticism of the judiciary and judges, that can be freely expressed without fear of undue persecution.
As a result, criminal law and contempt proceedings “are not appropriate mechanisms for restricting legitimate criticism of the courts”, and so they ask the Supreme Court to end its proceedings against Bhushan. The court is to conduct a hearing on sentencing for his contemptuous tweets on 20 August.
THE DUTY OF LAWYERS TO COMMENT ON THE JUDICIARY
On Tuesday, 18 August, the Bar Association of India also issued a statement, in which they too expressed their dismay about the case, and said that the “exercise of contempt jurisdiction by the Court in this manner has potential for more self-harm than the avowed purpose of safeguarding the prestige of the institution.”
The BAI had sought to intervene in the Bhushan case, including to support the lawyer-activist’s argument that there is a duty on lawyers to comment on institutional and structural matters concerning the judiciary, but the Supreme Court registry failed to list their intervention application.
The BAI goes on to argue that the Bench and the Bar need to work together, and have a special obligation to protect freedom of speech and the freedom to criticise the working of institutions, as “trenchant criticism, commentary, satire and humour help build institutions for a free society”.
Pointing out that the reputation of the Supreme Court “cannot be dislodged by a couple of ‘tweets’,” the BAI suggests that the court’s standing would in fact be enhanced by allowing criticism of its operation rather than curbing the freedom of speech and expression of a member of the Bar.
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