SC contempt judgment an assault on the Bar’s freedom of speech, says Prashant Bhushan

Advocate Prashant Bhushan, in response to a show-cause notice issued by the Bar Council of Delhi (BCD), has submitted before it that the Supreme Court's judgments holding him guilty of criminal contempt and further sentencing him for the same, are a fundamental assault on the freedom of speech and independence of the Bar.

Bhushan asserted that the Bar Council should stand in solidarity with the rights of members of the legal profession, and not take cognizance of the judgment of the Supreme Court which had severely constricted and abridged the freedom, rights and dignity of members of the Bar and also ordinary citizens.

"Independence of the Bar and the legal profession is necessary for the survival of democracy and indeed the Constitution itself", Bhushan said.

BCD on whose rolls advocate Bhushan is enrolled had issued notice to him asking him show-cause why disciplinary proceedings under the Advocates Act, 1961 should not be initiated for having been found guilty of contempt of court by the apex court.

In his response, Bhushan said that his two tweets for which he was found guilty of criminal contempt were within the limits of freedom of expression of a member of the Bar and there is nothing in them which could be termed as contemptuous.

"The judgment of the Supreme Court holding me guilty, after disregarding my defence of truth, is thus fundamentally flawed, and an assault on free speech. This judgment would have the effect of criminalizing any criticism of the functioning of the judiciary and would have a chilling effect on the right of lawyers and citizens to voice their opinion", Bhushan said in his reply.

Referring to his review petition against the contempt verdict, Bhushan submitted that the judgments against him are tainted with breach of principles of natural justice and rule against bias. It is for this reason also that the said judgments ought to be disregarded by the BCD, Bhushan says. He requested the BCD to form its own independent opinion as to whether my two tweets amount to any professional misconduct.

Bhushan highlighted that the apex court in its judgment dated August 31 had not referred the matter to Bar Council to initiate proceedings against him. He, thus, urged the BCD that no proceedings be initiated against him. He, however, adds that if the Bar Council decides to carry on with the proceedings, he may file a further response as required.

Earlier the Bar Council of India (BCI) had directed the BCD on September 4 to examine whether Bhushan's conviction for contempt of court invited disciplinary proceedings against him under the Advocates Act, 1961.

The BCI had said that it was the view that the tweets and statements made by Prashant Bhushan and the judgment of the Supreme Court need a thorough examination by the Bar Council in light of the statutory duties, power and functions conferred on it under the Advocates' Act 1961 and the rules framed thereunder, particularly Section 24A and Section 35 of the Advocates Act, 1961 and Chapter-II, Part VI of the Bar Council of Rules.

Section 24A of the Advocates Act provides for disqualification from enrolment inter-alia on the ground that the person is convicted of an offence involving moral turpitude.

Section 36 deals with the disciplinary powers of the Bar Council of India over the misconduct of advocates.

The SC on August 14 held advocate Bhushan guilty of contempt of court for his two tweets regarding the institution of the Supreme Court and the office of the Chief Justice of India (CJI).

In his first tweet on June 27, Bhushan had said, "When historians in future look back at the last six years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs."

Likewise, the second tweet dated June 29 commented on a viral picture that showed CJI Bobde on a Harley Davidson bike. The tweet in question read: "CJI rides a 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access Justice!"

A three-judge bench led by Justice Mishra held that the tweets were an attempt to shake the very foundation of constitutional democracy and hence must be dealt with an 'iron hand'.

The bench added that if the attack is not dealt with, with a requisite degree of firmness, then it may affect India's national honour and it's prestige in the comity of nations.

The Court on August 31 handed down the punishment to Bhushan by imposing a fine Rs. 1, failing which he would be sentenced to 3 months in jail and be debarred from practicing in the apex court for 3 years.

Bhushan recently filed a review petition against the judgment holding him guilty of contempt. The same is pending consideration of the Court. He deposited Rs.1/- as fine in compliance with the Court order earlier this month.