Bhushan’s conviction for contempt has chilling effect on freedom of expression: ICJ

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The International Commission of Jurists (ICJ) considers Prashant Bhushan’ conviction for contempt to be inconsistent with international standards on freedom of expression and the role of lawyers. The ICJ has stated that the conviction has a chilling effect on the exercise of protected freedom of expression in India and thus, has urged a review of the laws and standards on criminal contempt as applied by the Indian courts.

ICJ is an international NGO that defends human rights and the rule of law worldwide with about 60 eminent judges and lawyers on board, from all parts of the world.

On August 31, the Supreme Court of India imposed a penalty of Re. 1 on Prashant Bhushan for committing criminal contempt of court, failure of which would lead to 3 months imprisonment and 3 years of being debarred from practice.

The ICJ considered the court’s opinion on freedom of expression where it held that it was balancing its exercise of power to punish for contempt for itself (Article 129 of the COnstitution) with freedom of speech and expression. The ICJ, however, differed on this view and stated that a particularly wide scope must be preserved for debate and discussion about such matters as the role of the judiciary, access to justice, and democracy, by members of the public, including through public commentary on the courts. It held that any restriction on freedom of speech and expression “must be strictly necessary and proportionate to meet a legitimate purpose, such as protecting public order or the rights and reputations of others”.

ICJ’s Legal and Policy Director Ian Seiderman expressed his opinion, “There is a general concern that the protection of freedom of expression is rapidly eroding in India. We have seen this recently around the Covid-19 crisis in relation to the imprisonment of human rights defenders, on draconian charges of sedition, rioting and unlawful assembly for protesting against the Citizenship (Amendment) Act”. He further said that the Supreme Court may be perceived from hereon as an institution that silences “criticism and freedom of expression by invoking outdated criminal contempt laws”.

ICJ has stated that it stands with the 1,800 Indian lawyers in calling for the review of criminal contempt law. It emphasized that the “law is overbroad and should be aligned with international law and standards on the limited scope for restrictions on freedom of expression and criminal contempt.”

“Prashant Bhushan is a lawyer and lawyers being part of the legal system have a ring-side view and understanding of the state of the court. Convicting a leading lawyer for contempt for expressing his views in this manner may have a chilling effect on lawyers, in particular considering his involvement in many public interest litigation cases,” said Mandira Sharma, ICJ South Asia Senior Legal Advisor.

International standards on freedom of expression

Among the international standards on freedom of expression of lawyers and human rights defenders are International Covenant on Civil and Political Rights (ICCPR), UN Human Rights Committee, UN Basic Principles on the Role of Lawyers, Commentary on Bangalore Principles on Judicial Conduct and Latimer House Guidelines for the Commonwealth.

The ICCPR, under Article 19 speaks about the Right to Freedom of Expression and about restrictions on the exercise of the right, it states that they should only be imposed with respect to rights and reputation of others and for protection of national security or of public order.

The UN Human Rights Committee states that “The obligation to respect freedoms of opinion and expression is binding on every State party as a whole.” It further states that “Contempt of court proceedings relating to forms of expression may be tested against the public order ground,” and if a penalty is imposed it must be “warranted in the exercise of a court’s power to maintain orderly proceedings.” The Committee further states that any “restriction of freedom of expression, even “deeply offensive” expression, “must conform to the strict tests of necessity and proportionality”.

“All public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism”, the Committee opines. The Committee further states that the state should be able to establish the precise nature of the threat caused due to the expression and also establish an “immediate connection between the expression and the threat”.

The UN Basic Principles on the Role of Lawyers affirm lawyers’ right to freedom of expression, and in particular that lawyers “shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights.”

The Commentary on Bangalore Principles on Judicial Conduct, adopted by the Judicial Integrity Group (of whom former Chief Justice of India the Hon. Prafullachandra N. Bhagwati, was a longstanding member), published by the UN Office on Drugs and Crime, urges that contempt powers should be “used as a last resort, only for legally valid reasons and in strict conformity with procedural requirements” and that, “It is a power that should be used with great prudence and caution.”

“Criticism of public office holders is common in a democracy. Within limits fixed by law, judges should not expect immunity from criticism of their decisions, reasons, and conduct of a case,” states the Commentary. The Commentary also states: “Members of the public, the legislature and the executive may comment publicly on what they may view to be the limitations, faults or errors of a judge and his or her judgments… The better and wiser course is to ignore any scandalous attack rather than to exacerbate the publicity by initiating contempt proceedings.”

The Latimer House Guidelines for the Commonwealth also stresses that “criminal law and contempt proceedings should not be used to restrict legitimate criticism of the performance of judicial functions”.

The complete Press Release may be read here.