International Commission of Jurists Calls For Review Of Contempt Law In India; Expresses Concern Regarding Bhushan Judgment

Referring to the judgments passed by India's Apex Court on August 14 (conviction) and August 31 (sentencing), the Commission considered the verdicts as not only inconsistent with international standards that limit the scope of restricting the freedom of expression, but also as a risk to the exercise of this right.

Elaborating on this concern, it is stated that the decision to convict the 'prominent human rights lawyer' for his tweets could have a 'chilling effect' on the exercise of the protected freedom of expression in India. Not only regarding the fundamental right to freedom of expression, but the decision is not aligned with international standards pertaining to the role of lawyers in society, asserted ICJ.

In its press release, the ICJ has alluded to the contempt law being 'overboard' and called for the law to be brought in sync with international laws and standards in keeping restrictions on freedom of expression and criminal contempt to a bare minimum.

Specifically, the ICJ has voiced its concern regarding the conviction in so far as it appears to be inconsistent with international laws on freedom of expression as guaranteed by the International Covenant on Civil and Political Rights (Article 19, ICCPR), to which India is a party.

Agreeing that while certain limitations on the freedom of expression are allowed as per international standards, ICJ emphasized that discussions involving the role of the judiciary, access to justice, and democracy by members of the public must be given the widest possible scope in terms of exercising that freedom. Restrictions, the Commission opined, must be imposed only when necessary and in a proportionate manner in order to fulfil a legitimate purpose such as securing public order.

The ICJ has thus joined over 1800 Indian lawyers in expressing concern over the judgment and asking the Supreme Court "to review the standards of criminal contempt".

On August 17, expressing disappointment at Supreme Court's verdict holding Bhushan guilty of contempt of court for two tweets, over 1300 advocates had issued a statement, demanding that the conviction should not be given effect to until the issue is reviewed by a larger bench in an open court hearing.

Pointing out that it is the duty lawyers to freely bring any shortcomings to the notice of bar, bench and the public at large, it was said that a bar silenced under the threat of contempt will weaken the judiciary.

"This judgment does not restore the authority of the court in the eyes of the public. Rather, it will discourage lawyers from being outspoken. From the days of the supersession of judges and the events thereafter, it has been the Bar that has been the first to stand in defence of the independence of the judiciary. A bar silenced under the threat of contempt, will undermine the independence and ultimately the strength of the Court. A silenced bar, cannot lead to a strong court", said the statement signed by several prominent lawyers including Senior Advocates Janak Dwarakadas, Navroz H Seervai, Dairus J Khambata, Jayant Bhushan, Dushyant Dave, Arvind P Datar, Huzefa Ahamdi, C U Singh, Shyam Divan, Sanjay Hegde, Mihir Desai, Maneka Guruswamy,Bishwajit Bhattacharyya, Percy Kavina, Pallav Shishodia, Shekhar Naphade, Raju Ramachandran etc.

Not only have advocates from Bar associations across the country voiced their concern over the decision, the Bar Human Rights Committee of England and Wales also issued a statement on August 18.

Expressing that the Supreme Court's contempt verdict against Advocate Prashant Bhushan amounted to an interference with "legitimate criticism", the UK-based lawyer's body pointed out that the offence of scandalizing the court was abolished in the United Kingdom after it was widely felt that it could have "undesirable effects" on "free speech or legitimate criticism".

"We are extremely concerned that the Court in reaching its decision did not hold in contemplation that lawyers are entitled to, and should have, the freedom to voice publicly legitimate criticism of how justice is administered", the BHRC said.

"The offence of scandalising the court arose in an era where deferential respect to authority figures was the norm and before a human rights framework protected the civil liberties of individuals and enabled the institutions of power to be held properly to account", it added.

On July 22 a Supreme Court the bench headed by Justice Arun Mishra issued contempt notice to Bhushan in a suo moto case taken with respect to two of his tweets on judiciary and the Chief Justice of India.

The bench, also including Justices B R Gavai and Krishna Murari, prima facie, observed that his tweets "have brought disrepute to the administration of justice and are capable of undermining the dignity and authority of the Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of general public".

On August 14, a 3-judge bench of the Supreme Court had held Bhushan guilty of contempt of court for his tweets against the SC and the Chief Justices of India.

During the hearing on sentencing held on August 20, Bhushan affirmed his comments and made a statement justifying his comments and expressed dismay at the Court verdict.

"My tweets were nothing but a small attempt to discharge what I considered to be my highest duty at this juncture in the history of our republic. I did not tweet in a fit of absence mindedness. It would be insincere and contemptuous on my part to offer an apology for the tweets that expressed what was and continues to be my bonafide belief. Therefore, I can only humbly paraphrase what the father of the nation Mahatma Gandhi had said in his trial: I do not ask for mercy. I do not appeal to magnanimity. I am here, therefore, to cheerfully submit to any penalty that can lawfully be inflicted upon me for what the Court has determined to be an offence, and what appears to me to be the highest duty of a citizen.", Bhushan said.

The bench was not appreciative of the statement and asked Bhushan if he would like to reconsider it. The bench also asked Attorney General about granting time to Bhushan to reconsider the statement. AG agreed that time may be given to him.

However, Bhushan stood by the statement and said that it was "well considered and well thought of". He said that granting time "will not serve any purpose" as "it was unlikely" that he will change it.

Nevertheless, the bench said that it will give him two or three days for him to reconsider the statement, and posted the matter for hearing on August 25.

On August 25, the bench reserved orders on his sentencing after Bhushan refused to apologize.

During the hearing, Justice Arun Mishra expressed disappointment at Bhushan issuing a supplementary statement to justify his tweets after asserting his disinclination to tender an apology.

"Tells us, what is wrong in using the word 'apology'? What is wrong in seeking apology? Will that be reflection of the guilty? Apology is a magical word, which can heal many things. I am talking generally and not about Prashant. You will go to the category of Mahatma Ganghi, if you apologise. Gandhiji used to do that. If you have hurt anybody, you must apply balm. One should not feel belittled by that", observed Justice Mishra while reserving orders.

The Attorney General for India, K K Venugopal, requested the bench to not punish Bhushan and to let him off after a reprimand or a warning.

On August 31, the Court sentenced him to pay a fine of Rupee One, which is to be deposited with the Supreme Court Registry by September 15.In case of default to deposit, Bhushan will have to undergo imprisonment for three months and will be debarred from practice in SC for three years.