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We have previously discussed courts in the United States seeking to punish lawyers for making critical comments about judges or legal commissions on social media. We have also followed such actions taken against lawyers in other countries like Saudi Arabia. As will come as no surprise on a blog emphasizing free speech, I have long been critical of such actions.  However, India is facing a far more serious controversy after the Supreme Court demanded an apology from one of India’s most prominent lawyers for, among other things, blaming the Supreme Court for its role in undermining democracy in India. The justices proceeded to make his point by threatening him with jail unless he offered an unconditional and public apology.

One of my students (who has stayed in India during our virtual first term) mentioned this controversy as the rage in India yesterday and I decided to look into it.

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 one posting, Bhushan circulated a photo of Chief Justice SA Bobde astride a Harley-Davidson and noted that he was sitting on an expensive bike without a mask or a helmet when citizens were being denied justice due to the lockdown.

He also posted that history would show, when democracy was destroyed in India, the Supreme Court and the past four top justices played a critical role.

These are statements that should be protected speech in every country.  Yet, Bobde and his colleagues are using their power to coerce an apology over criticism of their own conduct.  As Bhushan said, any such “apology would be “insincere.”  He now faces six months in jail.

Bhushan is a dedicated public interest lawyer whose contrarian views have often put him into past conflicts with political and judicial figures. However, he has remained undeterred in advocating for minority rights, fighting corruption, and opposing the death penalty. He has been a leader in support of the Jan Lokpal Bill, or Citizen’s Ombudsman Bill, seeking the establishment of an independent body to investigate corruption cases.

He is a far better model for young Indian lawyers than the Supreme Court justices seeking to use their own authority to punish their own critics. He is also a reminder to those of us practicing law in other countries of the privilege and obligations that come with our license. We cannot be deterred to speaking out even when our views are unpopular with the government or the mob.

Bhushan is willing to go to jail based on that commitment.  For India’s law students, they have two examples from which to choose. They have a Supreme Court using its power to punish those who criticize its members and they have a solitary lawyer who refuses to yield to such an abusive use of power. One captures the corruption of power while the other the power of principle. The future of India’s legal system may rest on which example is embraced and defended in the coming weeks.

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