We have discussed courts in the United States that seek to punish attorneys for making critical comments on judges or legal commissions on social media. We have also followed actions taken against lawyers in other countries such as Saudi Arabia. As it will come as no surprise on a blog that emphasizes freedom of speech, I have long criticized such measures. However, India faces far more serious controversy after the Supreme Court demanded an apology from one of India's most prominent lawyers, who, among other things, blamed the Supreme Court for its role in undermining democracy in India. The judges made his point clear by threatening him with jail unless he was absent an unconditional and public apology.
One of my students (who stayed in India during our virtual first semester) mentioned this controversy yesterday as the anger in India and I decided to investigate.
Prashant Bhushan, 63, was found guilty of criminal contempt for attempting to “scandalize the entire institution” with Twitter posts for criticizing the Chief Justice and other top judges. In a post, Bhushan distributed a photo of Chief Justice SA Bobde on a Harley-Davidson and found he was sitting on an expensive bike with no mask or helmet when citizens were denied justice due to the lockdown.
He also wrote that history would show that the Supreme Court and the last four chief judges played a crucial role in the destruction of democracy in India.
These are statements that should be protected in every country. Still, Bobde and his colleagues use their power to apologize for criticizing their own behavior. As Bhushan said, such an "apology" would be "insincere". He's been in prison for six months now.
Bhushan is a dedicated public interest attorney whose contrary views have often brought him into conflict with political and legal figures in the past. However, he did not let himself be stopped from advocating for minority rights, fighting corruption and rejecting the death penalty. He was a leader in support of the Jan Lokpal Act or the Ombudsman Act and sought to set up an independent body to investigate corruption cases.
He's a far better model for young Indian attorneys than the Supreme Court justices who want to use their own authority to punish their own critics. He also reminds those of us who practice law in other countries of the privileges and duties that come with our license. We cannot let ourselves be stopped from speaking, even if our views are unpopular with the government or the crowd.
Bhushan is ready to go to jail for this obligation. There are two examples to choose from for India's law students. They have a Supreme Court that uses its power to punish those who criticize its members, and they have a lonely lawyer who refuses to give in to such abuses of power. One grasps the corruption of power while the other grasps the power of principle. The future of the Indian legal system may depend on which example is adopted and defended in the coming weeks.