ICJ calls for review of contempt law in India, expresses concern over Prashant Bhushan judgment

Expressing concern over the Supreme Court's decision to convict Advocate Prashant Bhushan for criminal contempt, the International Commission of Jurists (ICJ) has urged for a review of criminal contempt laws in the country, legal news website LiveLaw.in has reported.

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.