BHRC Statement
BHRC Statement

BHRC from UK raises concern over Supreme Court's judgment on Prashant Bhushan, says lawyers entitled to voice legitimate criticism

"An independent and impartial judiciary is stronger when enabling open and public debate on its operations," its statement reads

Shruti Mahajan

Bar Human Rights Committee of England and Wales (BHRC) has issued a statement expressing its concern over the Indian Supreme Court's recent judgment convicting Prashant Bhushan of contempt of Court for two of his tweets.

On August 14, the Supreme Court pronounced its judgment holding Advocate Prashant Bhushan guilty of contempt of Court for two of his contentious tweets. In its 108 pages long judgment, the Court has said, among other things, that if an attack of this nature is not dealt with, the same may affect national honour and prestige.

The judgment delivered by the Bench of Justices Arun Mishra, BR Gavai, and Krishna Murari also said,

"...magnanimity cannot be stretched to such an extent, which may amount to weakness in dealing with a malicious, scurrilous, calculated attack on the very foundation of the institution of the judiciary."

In relation to this judgment of India's top court, the BHRC expressed its concern noting the right of the lawyers to criticize the institution and to exercise their right to freedom of speech in the process. The BHRC has called upon the Supreme Court to review this decision and discharge Bhushan of this charge. The statement says:

"We call upon the Supreme Court of India to:

  • Enable an effective review process of the decisions of the Court to instigate contempt proceedings of its own motion and to convict Mr Bhushan of criminal contempt;

  • Stay sentencing of Mr Bhushan until such review has been conducted;

  • In any event, discharge Mr Bhushan from serving any punishment for the offence, commensurate with the broader context of public debate and the right to freedom of expression and legitimate criticism that the legal profession is entitled to exercise."

Criminal contempt of court which is provided for under Section 2(c)(i) of the Contempt of Court Act of 1971 is a in violation of fundamental right to freedom of speech and expression, the Bar body opines and has also called upon the Parliament and the Legislature to do away with this provision expeditiously.

"We also call upon the Government of India and the Parliament of India to abolish with all due expediency the continued statutory offence of criminal contempt by scandal, preserved in section 2(c)(i) of the Contempt of Courts Act 1971, as a violation of the fundamental right to freedom of expression, speech and legitimate criticism."

BHRC England and Wales

The statutory offence of criminal contempt of Court has long been disused in the UK and was ultimately abolished in 2013 after a Law Commission recommended so in 2012. This was on account of this Common law offence not being prosecuted under for over 80 years. The British Law Commission recognised that the offence of contempt through scandalizing the court or judiciary is in principle a violation of fundamental rights and advocated for the abolition of this offence.

"the English jurisprudence shows that the offence relates to abuse of the judiciary of a fairly extreme and irresponsible kind. Criticism in good faith, as part of a discussion of a question of public interest, does not fall within the offence."

The BHRC expresses concern over the Supreme Court of India concluding that Bhushan tweets were not in good faith and were in fact "scurrilous" and "malicious". In doing so, the Court "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."

An independent and impartial judiciary is stronger when enabling open and public debate on its operations.
BHRC England and Wales

Freedom of Speech and Expression in the context of legal practice ensures the principle of "open justice", the lawyers' body says while adding that this right to Freedom of expression inspires public's confidence and trust in the justice delivery system.

It is in this backdrop that not only a review of the judgment of August 14 is urged upon, but a call is also made by the BHRC for this statutory provision to be abolished.

You can read the statement here.

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