Law

SC's Verdict Against Prashant Bhushan Will Have 'Chilling Effect' on Free Speech: Lawyers

The Commonwealth Human Rights Initiative also issued a statement, saying the verdict is a sign of the 'current deterioration' in the right to free speech in the country.

New Delhi: Several prominent lawyers and the Commonwealth Human Rights Initiative of India (CHRI) have issued separate statements criticising the Supreme Court for finding senior advocate Prashant Bhushan guilty of contempt of court.

CHRI said that the verdict is a sign of the “current deterioration in the state of free speech in the country”. It said that even if Bhushan’s tweets, for which he was found in contempt, are “uncharitable or inappropriate”, by passing the judgment, the SC has sent a chilling message about the cost of criticism.

“Public confidence in the judiciary is built by securing the rights of people and not by using the law of contempt during a pandemic when the court’s functioning is anyway restricted, when other important matters are not heard, and holding a human rights defender like Prashant Bhushan guilty for exercising his freedom of expression,” CHRI added.

It supported calls given by the media, academia, civil society organisations and lawyers to repeal the existing criminal defamation and contempt laws, saying it is part of a “colonial legacy when dissent was criminalised”.

CHRI’s Executive Board includes retired Supreme Court judge Madan B. Lokur, former Chief Justice of the Delhi and Madras high courts A.P. Shah.

Also Read: In Finding Prashant Bhushan Guilty of Contempt, the SC’s Reasoning is Hardly Convincing

In a separate statement, Mumbai-based senior advocate Navroz H. Seervai said that the apex court’s judgment is an “assault on free speech and expression in the name of upholding the ‘dignity and majesty’ of the court”. He said the verdict is “clearly erroneous, both in its reasoning and its analysis and interpretation of the contempt jurisdiction”. Leading writers on constitutional law have commented that the top court has been selective in deploying this power conferred upon it by the constitution, Seervai noted.

He said the judgment appears to be a “calculated assault” on members of the legal profession who are familiar with what happens in court and the conduct of judges in and out of court. “It is these members who can speak to the goings-on in the judiciary with a degree of intimacy that others lack. The judgment will have a chilling effect on free speech generally, and that appears to be its intent, but it is also intended to send out a strong message to the legal profession, by making an example of Prashant Bhushan for daring to exercise his fundamental right to freedom of speech,” the lawyer said.

A third statement, signed by leading lawyers such as Vrinda Grover, Dushyant Dave, Kamini Jaiswal, Karuna Nundy, Shyam Divan, Sanjay Hegde, Menaka Guruswamy and others, says that the SC’s verdict against Bhushan said an independent judiciary does not mean that judges are “immune from scrutiny and comment”.

“It is the duty of lawyers to freely bring any shortcomings to the notice of bar, bench and the public at large. While some of us may have divergent views on the advisability and content of Mr. Prashant Bhushan’s two tweets, we are unanimously of the view that no contempt of court was intended or committed,” the statement says.

The judgment may discourage lawyers from being outspoken, the signatories said, adding that from the days of the supersession of judges and the events thereafter, it has been the bar that has stood 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,” they said.

They expressed disappointment that the Supreme Court utterly disregarded the presence of the attorney general, who they described as a highly respected lawyer of great eminence, and its refusal to seek his valuable opinion in the matter, which is mandated “even as per contempt law”.

“We are of the firm view that the judgment must not be given effect to, until a larger bench, sitting in open court after the pandemic has the opportunity to review the standards of criminal contempt,” the statement says.

Also Read: In SC’s Dealings With Prashant Bhushan Over Contempt, Shades of Arundhati Roy’s Case

In a fourth statement, over 450 lawyers wrote to Supreme Court Bar Association (SCBA) president Dushyant Dave saying that the association must take up the issue with regard to proper hearing.

Registering their protest against the manner in which the criminal contempt cases were taken up against Bhushan, they said that though the lawyer had filed a preliminary reply affidavit, he had sought more time to put on record a more detailed affidavit to defend himself. “However, he was denied this opportunity to effectively defend himself, and the matter was hurriedly taken up against him and finally decided,” the statement says.

They also said a second contempt case against Bhushan, pending since 2009, was “suddenly” taken up out of turn, in total disregard of the current situation created by the COVID-19 pandemic. Due to the health crisis, physical court hearings have become impossible, the lawyers noted, adding that Bhushan’s representatives feel that a virtual hearing is not very conducive for such an involved matter, with voluminous court records.

The statement says that the majesty of the Supreme Court is not affected “so much by criticism, as it is by its own response to it”. Having recognised the right to freedom of speech and expression on several recent occasions, the court must show the same sensitivity and circumspection before issuing criminal contempt in a case that has a bearing on its own tolerance to speech. Invoking of the ‘iron hand’ by the constitutional court of India to respond to criticism in speech, should also be reviewed, they demanded.

The four statements have been reproduced in full below.

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Prashant Bhushan Case Reflects State of Free Speech in India: CHRI

The Supreme Court verdict slamming senior lawyer and human rights advocate Prashant Bhushan’s critical tweets of it is “a sign of the current deterioration in the state of free speech in the country,” the Commonwealth Human Rights Initiative (CHRI) said today.

However uncharitable or inappropriate the tweets might be, the Hon’ble Court “in passing the judgement, has made it clear that ‘the majesty of the law and of the administration of justice’ is above the fundamental freedom of expression sending a chilling message about the cost of criticism,” said the India Executive Board of CHRI, which is headed by former Chief Information Commissioner, Wajahat Habibullah, and includes two distinguished jurists.

“Public confidence in the judiciary is built by securing the rights of people and not by using the law of contempt during a pandemic when the court’s functioning is anyway restricted, when other important matters are not heard, and holding a human rights defender like Prashant Bhushan guilty for exercising his freedom of expression,” CHRI added.

It supported calls by different sections of society, including the media, academia, civil society organizations and lawyers, groups demanding the repeal of existing criminal defamation and contempt laws, citing this as part of a colonial legacy when dissent was criminalised.

“On India’s 74th Independence Day, discretion, restraint, firm dignity and the unequivocal upholding of rights is what Indians look to from the highest court of the land, not the silencing of expression,” CHRI noted.

In its judgment last week, a bench of the apex court said Bhushan committed “serious contempt of the court” by making a “scandalous and malicious statement” about the record of the top court and the last four Chief Justices during the past six years. According to the court, these two tweets were enough to shake “the very foundation of constitutional democracy” and needed to be dealt with an “iron hand.”

CHRI’s Executive Board includes Madan B Lokur, former Justice of the Supreme Court, AP Shah, former Chief Justice of the high courts of Delhi and Madras. Other members are Ms. Vineeta Rai, Ms. Maja Daruwala, Dr. Poonam Muttreja, Mr. Nitin Desai, Dr. BK Chandrasekhar, Mr. Kishore Bhargav, Mr. Kamal Kumar, Mr. Jacob Punnoose and Mr. Jayanto N Choudhury. Sanjoy Hazarika is CHRI’s International Director and Secretary to the EC.

In India, the CHRI Executive Board noted, the past years have witnessed a spurt in attacks on journalists, including last week on three reporters of The Caravan in New Delhi, arrests of media professionals for their media coverage, even during the pandemic and assaults on persons for views expressed on social media.

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Statement by Navroz H. Seervai on the judgment of the Supreme Court holding Prashant Bhushan guilty of criminal contempt.

The judgment is an assault on free speech and expression in the name of upholding the “dignity and majesty” of the Court in the eyes of the public. The judgment is clearly erroneous, both in its reasoning and its analysis and interpretation of the contempt jurisdiction. However, it does not come as a surprise to those familiar with the judgments of the Supreme Court on contempt, over the years. Leading writers on Constitutional Law have commented on the Supreme Court being selective in deploying this power conferred upon it by the Constitution. The differences in the cases of P. Shiv Shankar, being the Law Minister, and [EMS] Namboodiripad or Arundhati Roy are stark.

Much more worrying is that this judgment appears to be a calculated assault on the one segment of civil society which is familiar with what happens in Court, and the conduct of judges in and out of Court, namely members of the legal profession. It is these members who can speak to the goings-on in the judiciary with a degree of intimacy that others lack. The judgment will have a chilling effect on free speech generally, and that appears to be its intent, but it is also intended to send out a strong message to the legal profession, by making an example of Prashant Bhushan for daring to exercise his fundamental right to freedom of speech.

The tragedy for the country is that this will, in all probability, succeed—both in its intention and effect. The judgment will be cited as precedent by the Court to protect an institution that knows that its conduct and its position lays it open to adverse comment and criticism across the spectrum of civil society, as happened recently in it’s initial response to the migrant crisis. That is something that the Court clearly cannot tolerate, despite all its protestations to the contrary.

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Statement to the Supreme Court and to the Public of India at large

We, the below named, practicing members of the bar in India, have noted with dismay, the judgment of the Supreme Court, in Mr. Prashant Bhushan’s contempt case. An independent judiciary consisting of independent judges and lawyers, is the basis of the rule of law in a Constitutional democracy. Mutual respect and the absence of coercion, are the hallmarks of a harmonious relationship between the bar and bench. Any tilting of the balance, one way or the other, is deleterious both to the institution and the nation.

An independent judiciary does not mean that judges are immune from scrutiny and comment. It is the duty of lawyers to freely bring any shortcomings to the notice of bar, bench and the public at large. While some of us may have divergent views on the advisability and content of Mr. Prashant Bhushan’s two tweets, we are unanimously of the view that no contempt of court was intended or committed especially when contrasted with the normal standard that “Justice is not a cloistered virtue… She must be allowed to suffer the scrutiny and respectful, even though outspoken comments of ordinary men.”

While Mr. Prashant Bhushan as a lawyer of good standing of the Supreme Court, may not be an ordinary man, his tweets do not say anything out of the ordinary, other than what is routinely expressed about the court’s working in recent years by many on public fora and on social media. Even some retired judges of the Supreme Court have expressed somewhat similar views.

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.

We also express a deep sense of disappointment about the Supreme Court’s utter disregard of the presence of the Learned Attorney General, a highly respected Lawyer of great eminence, and its refusal to seek his valuable opinion in the matter, which is mandated even as per contempt law.

We are of the firm view that the judgment must not be given effect to, until a larger bench, sitting in open court after the pandemic has the opportunity to review the standards of criminal contempt. We do believe that the Supreme Court will hear the Voice of the People expressed all around in last 72 hours on the subject and take corrective steps to prevent miscarriage of Justice and restore the confidence and respect that Citizens have generally reposed in it.

Signed

1. Mr. Janak Dwarkadas
2. Mr. Navroz H Seervai
3. Mr. Darius J Khambata
4. Mr. Jayant Bhushan
5. Ms. Vrinda Grover
6. Mr. Bishwajit Bhattacharyya
7. Mr. Dushyant Dave
8. Mr. Huzefa Ahmadi
9. Mr. Arvind Datar
10. Mr. Mihir Desai
11. Mr. Anoop Feroze George Choudhary
12. Ms. June Choudhary
13. Mr. Ravindra Srivastava
14. Ms. Kamini Jaiswal
15. Mr. Prashanto Chandra Sen
16. Ms. R. Vaigai
17. Mr. Sattvik Verma
18. Mr. Amarjit Singh Chandhiok
19. Ms. Karuna Nundy
20. Mr. Sriram Panchu
21. Mr. Percy Kavina
22. Ms. Meenakshi Arora
23. Mr. Nakul Dewan
24. Mr. Ritin Rai
25. Mr. Anip Sachthey
26. Mr. Shekhar Naphade
27. Mr. Rajiv Nayyar
28. Mr. Shyam Divan
29. Mr. Lalit Bhasin
30. Mr. Pallav Shishodia
31. Mr. PP Khurana
32. Mr. Chander Uday Singh
33. Mr. Sanjay R Hegde
34. Mr. Ramji Srinivasan
35. Mr. Raju Ramachandran
36. Mr. Suhrith Parthasarathy
37. Mr. Kailash Vasdev
38. Dr. Menaka Guruswamy
39. Mr. Mustafa Doctor
40. Mr. Kirti Uppal
41. Mr. Pranjal Kishore

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Letter to SCBA president Dushyant Dave

Letter to SCBA President by The Wire on Scribd