This is slavery, not to speak one’s thought.
Domestic courts of most countries still function under formal institutions and structures preserved from time immemorial. The justice givers in a society have always been held in high regard as they are the ones everyone looks up to with doe-eyed innocence and anticipation to get their quest of reparations, reforms and justice fulfilled. Holding the judiciary supreme to other human faculties is an understandable and, if seen liberally, even a logical notion. However, these conventions and privileges of Courts become problematic very fast as they transcend into immunity of judicial officers from accountability and evaluation. One of the biggest such legal convention is contempt of court and its relevance in a democratic society is again being questioned after the conviction of Prashant Bhushan by the Indian Supreme Court.
Criminal contempt of court is a legal principle belonging to the common law system which, inter alia, criminalises any and all acts that scandalise the courts including words spoken or published that a) can lower the authority of the court; b) can interfere with the due course of judicial proceedings or c) can obstruct the administration of speech. The jargon and redundancy in such provisions contained in legal documents of different countries are the illusions that seem to grant legitimacy to what is, essentially, a pre-emptive and generalised gag order. In the incident that has once again brought this issue out from the dictator’s treasure trove, the Indian advocate and civil rights activist Prashant Bhushan was convicted of criminal contempt by the Supreme Court for two tweets that he had posted. The first tweet contained a picture of the Chief Justice SA Bobde wherein he was sitting on a bike that Bhushan claimed belonged to the son of a political leader associated with the ruling party, i.e, Bhartiya Janta Party. In the second tweet, he critically evaluated the functioning of Supreme Court in the past two years. The Orwellian cherry on this draconian cake is that the contempt proceedings were the result of a suo moto action of the Court.
In the same case, the Supreme Court, after holding Prashant Bhushan guilty of contempt, asked him to apologise for his statements but he refused to apologise and filed a supplementary statement saying, ‘If I retract a statement before this court that I otherwise believe to be true or offer an insincere apology, that in my eyes would amount to the contempt of my conscience and of an institution that I hold in highest esteem'. Following this, the Court fined Mr. Bhushan 1 Rs. and disposed of the matter. These events present an intriguing picture as analysing the case in isolation would project the Supreme Court as a magnanimous institution which imposed a nominal fee as the punishment for a considerably serious offence. However, such a narrow perusal of events would result in side-lining of the root issue here which is whether Mr. Bhushan’s statement can be held to be the ground for conviction under contempt laws without creating an oxymoronic juxtaposition with freedom of speech and other civil liberties.
Therefore, the present article aspires to discuss the concept of contempt at its root by situating it under the regime of International Human Rights which has not been discussed in the said judgment. The Indian constitution has borrowed the provision and legislation of contempt from Britain but the British, themselves, were upright in adapting with changing times when they scrapped this offense of ‘scandalising the court’ holding it to be detrimental to the freedom of speech and expression. To discuss the legality and relevance of the provisions of criminal contempt in India, it is important to make general arguments which are not specific to a country’s legislation and this can be best done with the help of international human rights law.
Free Speech and International Law
The Universal Declaration of Human Rights is the primary and quintessential human rights document of the world which contains the all the basic, inalienable rights of human beings which are necessary for a life of dignity on this planet. The UDHR holds freedom of speech to be one of the highest aspirations of common people in the second para of its preamble and also contains an entire Article dedicated to the freedom of speech and expression. The Article 19 of the UDHR says that,
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
Further, the Article 19 of the landmark convention on civil liberties, i.e., the International Covenant on Civil and Political Rights also ensures the right to free expression of opinion in all forms without any arbitrary intervention. Although, such a right does function under the limitation of public order and morality but there is no mention of censorship of opinions that are against the authorities of a country. The ICCPR has 173 ratifications and Article 19 has been widely reflected in the constitutions of many countries around the world and thus ought to be regarded as a part of customary international law as per the requirements of state practice and opinio juris laid down by the ICJ in the North Sea Continental Shelf case. This elevated and concrete status of the freedom of speech and expression under international law implies that State actors cannot subvert or undermine it under whimsical and outdated legislations.
Further, as the issue at hand pertains to an advocate, it is relevant to look at the UN Basic Principles of the Role of Lawyers, which was adopted by the eight UN Congress on Prevention of Crime and Treatment of Offenders. The 23rd principle of the document provides lawyers with the right to publicly discuss matters of law, justice and protection of human rights. Although, these basic principles are not recognised enough to be customary but they definitely substantiate the case against contempt provisions.
Article 19 of the ICCPR and the aforementioned basic principles make it lucid that expression of opinions is a human right. However, contempt laws operate in an entire antithetical paradigm. For instance, the Indian Constitution, via articles 195 and 215, provide discretionary powers to the Supreme Court and High Courts to regard a publication or speech as contemptuous of the court. In Prashant Bhushan’s case, the Supreme Court held his tweets to be ‘capable of shaking the very edifice of the judicial administration and also shaking the faith of common man in the administration of justice.’ It is indicative of how arbitrary and ambiguous the definition of contempt is. In a way, it provides the courts the unlimited power to do anything and face no criticism. Additionally, free speech, opinions and constructive criticism encourage the cultivation of a strong society with an intellectual conscience by giving space to debates and dialectics.
Thus, criminal contempt, if used to punish valid but dissenting voices, can neither exist in a country whose constitution ensures right to free speech and expression, nor under international law. This opinion has also been strongly articulated in statements put out by more than 1500 lawyers, Amnesty International and the International Commission of Jurists after the conviction of Prashant Bhushan, wherein they stated that international law should be the source to set standards for free speech and expression.
The paradigm of international law is thus clear and explicit to state that all opinions, except those that are against the interest of public opinion and morality, should be given a free and unrestricted platform in a democratic and civilised society. India’s criminal contempt laws much like many other countries’, serve to obstruct and impediment free speech. The judgements, judges and all other facets of the judiciary should be open to criticism and public review as that is the only way institutions can evolve and improve. Contempt laws should be restricted to the situation where someone refuses to comply with a court’s judgment. In the status quo, the judiciary is functioning on a superficial plane by shutting out dissenting opinions of the public and assuming that whatever they are doing is at all points in time a right thing to do. Unfortunately, this is just another instance of man playing God and history is there to tell us why that is not such a great idea.
Title Image source: Pro Bono India
This article has been written by Subodh Singh. He is a law student at ILS Law College, Pune.
This article won second prize in 1st HuRiCo National Blog Writing Competition.