(New York) – The Indian Supreme Court’s conviction of a prominent lawyer for criminal contempt of court can have a chilling effect on legitimate criticism, including of the country’s judiciary, Human Rights Watch said today.
On August 14, 2020, the Supreme Court found Prashant Bhushan guilty under the Contempt of Courts Act, 1971, for two social media posts in June that it said had “the effect of destabilising the very foundation” of India’s judiciary. Sentencing was set for August 20. On August 19, Bhushan filed an application seeking to defer the sentencing hearing until a review petition is filed and considered.
“India’s Supreme Court has jettisoned its long history of protecting free speech by finding Prashant Bhushan guilty of criminal contempt for his social media posts,” said Meenakshi Ganguly, South Asia director. “At a time when the space for peaceful dissent in India is fast shrinking, the Supreme Court is sending absolutely the wrong message about the importance of holding democratic institutions in a free society accountable.”
Bhushan, 63, has led a number of public interest litigations to seek transparency and accountability in government institutions. Over the decades, he has often been a vocal critic of government. More recently, he also opposed discriminatory policies and rights abuses by the current administration led by the Bharatiya Janata Party.
The Supreme Court acted on a complaint brought by an attorney, and would also hear a revived contempt of court allegation against Bhushan originally brought in 2009.
The verdict prompted widespread condemnation across India. More than 3,000 former judges, retired bureaucrats, journalists, and lawyers signed a statement calling the judgment a “disproportionate response” that would have a “chilling effect” on people expressing critical views of the judiciary. Over 1,800 lawyers signed a statement challenging the ruling and calling on the Supreme Court not to give effect to the judgment until a larger bench was able to review criminal contempt standards in open court after pandemic restrictions are lifted. Opposition leaders and rights groups have also criticized the judgment, including calling the contempt law a “colonial legacy” in need of reform.
In recent years, the Indian authorities have increasingly used criminal laws, including for counterterrorism, sedition, and criminal defamation, against peaceful dissenters, journalists, rights activists, academics, and students. Scores of people have been arbitrarily arrested, prosecuted, and imprisoned in politically motivated cases. The contempt verdict against Bhushan could signal to India’s courts that any criticism of the judiciary could be subject to criminal action.
In India, contempt can be both civil and criminal under the Contempt of Courts Act, and is punishable by up to six months in prison. Criminal contempt is defined broadly as any act that “scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”
The colonial-era law does not require proof that the statement has led to actual interference with the administration of justice or undermining of public confidence in deciding whether there was contempt. In the United Kingdom, the offense of “scandalising” the court was abolished in 2013 after the UK Law Commission said it was an infringement of freedom of expression.
The International Covenant on Civil and Political Rights (ICCPR), to which India is a party, permits restrictions on the right to freedom of expression to maintain “public order,” but only by law and when necessary for a legitimate purpose. The United Nations Human Rights Committee, which monitors state compliance with the ICCPR, has said that contempt of court proceedings and any penalty imposed “must be shown to be warranted in the exercise of a court’s power to maintain orderly proceedings.”
The guidelines to implement the 2002 Bangalore Principles of Judicial Conduct, which supplement the UN Basic Principles on the Independence of the Judiciary, state that “since judicial independence does not render a judge free from public accountability, and legitimate public criticism of judicial performance is a means of ensuring accountability subject to law, a judge should generally avoid the use of the criminal law and contempt proceedings to restrict such criticism of the courts.”
The Indian parliament should amend the Contempt of Courts Act to bring it into line with international human rights standards.
“Like all public figures, judges too are legitimately subject to criticism, but even if they consider it unfair, it shouldn’t be treated as an attempt to undermine the judiciary,” Ganguly said. “Ultimately, the judiciary is strengthened by heightened scrutiny, and judges should take the lead to counter any attempt to silence critics.”