SC Contempt judgment an assault on free speech, Bar Council must form its own opinion: Prashant Bhushan responds to BCD's notice

Advocate Prashant Bhushan has responded to the notice issued by the Bar Council of Delhi asking him to explain why he should not be proceeded against for professional misconduct in view of the Supreme Court's judgment finding him guilty of criminal contempt for tweets criticising the judiciary.

.BCD summons Prashant Bhushan to examine if his Tweets, SC's contempt verdict against him would disqualify him from practising as an Advocate. In his September 30 response, Bhushan has termed the judgment convicting and sentencing him of contempt a " fundamental assault on the freedom of speech and independence of the Bar ", and entreated the Bar Council to " stand in solidarity with the rights of the members of the legal profession. "

. He has further urged the Bar Council " not take cognizance of the judgment of Supreme Court which have severely constricted and abridged the freedom, rights and dignity of the members of the Bar and also ordinary citizens ."

. Relying on the case of Supreme Court Bar Association v. Union of India , Bhushan has asserted the authority to punish an advocate by suspending his licence or by removal of his name from the roll of the State Bar Council for proven professional misconduct vests exclusively in the statutory authorities created under the Advocates Act, 1961 i.e. the Bar Council authorities.

. "Freedom of speech and expression of lawyers is critical so that the members of the legal profession remain independent and can voice their opinion about the functioning of the courts without any fear or favour. It is for the same reason that the administration and functioning of the Bar Council of India as well as the State Bar Councils have been kept completely independent of the government and the judiciary." adds Bhushan, in his response. . The reasons offered by Advocate Bhushan while submitting that the Delhi Bar Council should not carry forward disciplinary proceedings over his tweets and the contempt judgment further include:

The two tweets in question are within the limits of freedom of expression of a member of the Bar and there is nothing in them which could be termed as contemptuous.

The Supreme Court judgment holding Bhushan guilty, after disregarding his defence of truth, is fundamentally flawed, and an assault on free speech.

The Supreme Court judgment would have the effect of criminalizing any criticism of the functioning of the judiciary and would have a chilling effect on the right of lawyers and citizens to voice their opinion.

Merely because my tweets have been held to be contemptuous by the Supreme Court, it would not necessarily follow that the same also constitute “professional or other misconduct” .

The Bar Council of Delhi is not at all bound by the judgment of the Court holding me guilty, and in fact has to form its own independent opinion as to whether my two tweets amount to any professional misconduct.

The recent judgments against Bhushan ought not to be the basis for proposed disciplinary proceedings. The proposed proceedings will have to be decided on the basis of Advocates Act, 1961 and the Rules made thereunder. The BCD in the present proceeding has to examine the two tweets de novo and arrive at its own finding whether or not the same interferes with the administration of justice or amount to professional misconduct.

The judgments against Bhushan are tainted with the breach of principles of natural justice and the rule against bias. Therefore, the said judgments ought to be disregarded by the BCD.

The Bar Council of India Rules made under Section 49(1)(c) of the Advocates Act, 1961 itself say that it is the duty of the advocate to not be servile to the Court and conduct himself with dignity and self-respect. They further provide that it is the duty of the advocate to raise his voice against improper conduct by any judicial officer. Therefore, it is the foremost duty of a lawyer to point out what is right or wrong with the judiciary and if there is cause for any concern, it is the duty of a lawyer to raise his voice, without fear of any contempt or disciplinary action.

Bhushan's conviction for committing criminal contempt was not a conviction for “an offence involving moral turpitude” , as is the requirement under Section 24A of the Advocates Act.

That the test for professional misconduct as reiterated in PD Khandekar's case is whether the actions of the concerned advocate bring disrepute or dishonour to the legal profession and are perceived as such by his brothers and sisters at the Bar. In the present case, far from the Bar disapproving the tweets, Bhushan submits that he has received significant support and solidarity from fellow lawyers as well as from retired Judges of Supreme Court and High Courts.

The Supreme Court in its judgment dated of August 31 has not referred the matter to Bar Council to initiate proceedings against Bhushan . The Court has closed the case by sentencing Bhushan to a token fine of rupee one which he has paid without prejudice to his rights and contentions he has taken in a review petition now pending before the top Court.

.Prashant Bhushan moves Supreme Court seeking review of judgment imposing 1 rupee fine on him for Contempt of Court. In view of these submissions, Bhushan has requested the Bar Council of Delhi to take a firm stand in support of the freedom of speech and expression of the Bar , stating that " the very freedom, dignity, rights and independence of the Bar are at stake ."

. He adds,

" Independence of the Bar and the legal profession is necessary for the survival of democracy and indeed the Constitution itself ."

. In case the Council decides not to drop the proceedings, Bhushan has requested that the proceedings be put on hold while the review petition and the plea filed seeking an intra-court appeal in the contempt cases are pending before the Supreme Court.

. He adds that if the Bar Council decides to carry on with the proceedings, he may file a further response as required.

. Read the Response:

SC Contempt judgment an assault on free speech, Bar Council must form its own opinion: Prashant Bhushan responds to BCD's notice

Meera Emmanuel

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