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.
The singular American failure has been and is the high criminal judicial branch with emphasis on the High Criminal Supreme Court, which have egregiously abused power and usurped the power of the legislative and executive branches, even as their simple charge is to merely assure that actions comport with statute and fundamental law.
“…men…may do…what their powers do not authorize,…[and] what they forbid.”
“…courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”
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“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
Not enough to fret about in our own backyard?
If India was the bastion of “freedom”, “equality”, English legal precepts and jurisprudence that is “promoted” by its rulers then its people would invest their resources and energies in their homeland as opposed to striving to leave. Neither India nor the USA will benefit over the long term from the mass relocation of India’s educated to the US. So I offer it is a matter to fret about – it is in the US “backyard”.
If India wants to retain its elite educateds, they could start by getting enough lavatories built around the nation
https://www.ted.com/talks/joe_madiath_better_toilets_better_life?language=en
India sends us a lot of fine migrants especially in medicine. sure a lot of them are taking over the hotels. this is a niche, natural for migrants to find a business niche and work it. overall i have little problem with Indian immigrants. And the Hindus fit in better than their Pak Muslim counterparts seems to me.
I have no problem preferring some migrants to others. We should learn to parse migrant communities for what they have to offer the US and not vice versa. I would cut Africa off entirely. The only thing we need to import from there are rare earth minerals.
If we could choose to allocate migration quotas per nation, as was done in much of our American history, then now at this time, considering surplus migration pools available, we should be allocating to Asia and most of all, not Africa. The reason is obvious. We are swelling the ranks of perpetually discontent descendants of African slaves with more Africans who are not descendants of slaves, but in one generation will not remember and all will be on board for seeking “reparations.” It is insanity to allow more cord to be wound around the taxpayer’s necks this way.
Of course the mere notion that we as a nation, have a sovereign right to limit migration, is lost on some people, who lack insight and a sense of their own best interests.
Same context with obam’s gross influx of islam, of which Biden had said he will reopen those doors. It is matter to fret also. Political correctness and Socialism are also, building the platform for Nero to begin performing on.
American legal ethics rules typically numbered 8.2 of the RPC allow for judges to get back at lawyers who dare to criticize the judiciary. I have seen the rules misused by angry judges. I am not going to give case names but the cases have at times seen state SC panels reversing errant lower rulings. The issue Prof Turley needs to take on is THE DEATH OF FREE SPEECH FOR LAWYERS IN USA
The current tactics by the Red Guards embedded in the state bar associations — agents of the Left, I’ll just keep that broad– but their current effort is to expand RPC 8.4 g into a tool to cancel lawyers who may make any errant comment which trespasses on the holy grounds of race sex or orientation whatsoever. And to make the rule ever wider, expanding farther from work into private life as well This IS a fight at hand HERE not off in far India, and the professor taking a look at it would be appreciated.
https://news.bloomberglaw.com/us-law-week/aba-opinion-defends-anti-harassment-rule-criticized-as-too-broad
Normal folks always wonder “how can they do this” in light of the first amendment etc. Well it’;s like this. 11th amendment allows states to regulate practice of law licensing, and the federal may not interfere. So almost every sort of case which might be filed in a federal court against a state SC, say for taking away free speech of lawyers by licensing restrictions, well, such cases would generally fail. So the door is open for state SC judges– who write such rules by their own internal legislative fiat alone– the dcor is open for them to scold and punish us in ways almost no other profession could suffer. (actually political correctness against professors is worse, but that is due to other complex factors)
The 11th amendment has a lot of other interesting wrinkles in the law of elections and various subjects considered arcane, and they are, but they often operate to shut down the supposed range of “free speech” the folks believe they apparently have.
I should add another thing: If the modern day Red Guard attack on lawyer licenses in the name of political correctness goes much further, then all his lawyer commentators may just quit this blog for fear that every little word will get them in hot water.
But I think I will not quit. Why? my slate is clear, but should bogus charges ever get filed on me along these lines, it will not be I who am deterred, the shame would fall on my accusers, they would break their teeth biting on me,, and then should I actually lose, I would retire with a laugh
Or as a character said in a favorite movie:
“As for the charges against me, I am unconcerned; I am above their timid, lying morality and so I am beyond caring.”
But i am here making this comment, which I will repeat a thousand times, for the next generation of lawyers who are young and scared and were not as fortunate as I was to have the mentors I did.,
This is apparently not just one isolated case. If this article is accurate, the corruption in their SC runs deep and their power has gone unchecked for years.
It was ominous and alarming, but the judges did not spell out what exactly was endangering the Supreme Court. They seemed to be blaming Misra, but their only specific argument was that he had been allocating cases to specific benches arbitrarily. Soon after, Prashant Bhushan, a senior lawyer and judicial activist, alleged that the government was blackmailing Misra. “Politically sensitive cases are being assigned to handpicked benches, with no senior judge on them, so that the desired outcomes are achieved,” Bhushan said. “The chief justice is clearly working under the government’s pressure.”
https://www.theatlantic.com/international/archive/2019/04/india-supreme-court-corruption/587152/
The majority of attorneys in the world live and pretend to practice in the USA. Now if we could just get rid of the anti american ACLUeless.
Which kind of democracies? The socialist democracies or the peoples democratic republic style or the democracies in name only? Or like in the USA the democracies rejected nine times by the founders not found in the Constitution but one or two of the democratic principles that do work used in the voting system although not supported by the falsely named Democrats who are in no way democratic and haven’t been to any extent or no extent depending of Party of Slavery era or the the Anti civil rights era or the socialist regressive liberal era. That’s going to be hard to prov3 since India itself with it’s caste system and the USA still an apartheid country with it’s reservations can hardly claim to have been much less support that system EXCEPT in it’s Constitutional Republic system which is of course not supported by the Regressive Liberals.
Turley is more concerned about other democracies than his own. Gives the Trump-Putin team a pass on almost everything and goes down with a bending knee for the omnipotent Bill Barr. But sure Turley lets talk about other nations problem’s and ignore our own.
Agreed at some times he goes full centrist but then we have fishwings to point out the failings of tne Pelosi system.
I suspect most judges are arrogant swine.
To put it differently, all law comes from sovereignty, and all sovereignty comes from who is strong enough to be the sovereign.
This understanding is related to the idea which conservatives often despise called “legal positivism” but they can despise it all they like, it still has the teeth of reality behind it
It really goes all the way back to Thrasymachus’ definition of justice in Plato’s Republic “justice is the advantage of the strong,”
or put more tactfully, law is the set of rules by which the government imposes force. nothing more nor less.
The energy of the post-war Left is often misunderstood by conservatives, because they can’t understand this more fundamental point.
If you understand that law is not what God wants it to be, but what men want it to be, then you have a head-start in every conflict.
That is not to say there is no Logos, of course there is; but we are stuck fighting each other on the ground for as long as we live.
Victory and attainment of sovereignty, and a stronger degree of it, not a weaker degree– is thus always a prerequisite to establishing greater forms of justice than whatever is present now.
Is this fundamentally at odds with the American notion of limited government? Perhaps it is. Probably it is. But victory will require, transcending those Enlightenment shibboleths and bromides, inside one’s head, and outside of it– when the moment is right.
If our liberterian friends find themselves triggered by this remark, then I have communicated it effectively.
Very well put.
Okay, this involves India and as long as Indians don’t try to dictate what happens in the US (Indians such as Kamala Harris and my county judge already are) it is of no concern to the United States in any way.
Sem, I agree they are soveign in their own land and can parse their rules how they like
But the happenings in other jurisdictions outside the US, particularly which have had the influence of Anglo-Saxon law, often show us patterns we should understand, as they tend to reappear here.
The entire SC of India, should be taken down. The attack on this attorney’s right to criticize the actions of the members that show how they flaunt the very laws that they uphold, is a display of unbridled power that is exceeds he expectations of every law abiding citizen in that country. This attorney is acting heroically and the people of India must stand with him against the tyranny of their highest court.
Turley’s essay would be better if he allowed that the same sort of bullying of lawyers happens here in the USA as well. This is the pattern rule that is sometimes misused:
https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_2_judicial_legal_officials/
(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
I love criticizing the SCOTUS. It’s a target rich environment!
https://strikelawyer.wordpress.com/2020/04/02/the-government-wins-2/
I’d like to see US supreme court justices with corporate logos such as big pharma and the MIC with idiot proof BLM slogans painted on the robes.
I didn’t know that India had a SC until now.
Criticizing light worker beings is a thoughtcrime on par with facecrime and they should throw the book at the insolent lawyer.
Ooops…that was a wrongthink offense right there.
I am unclear if the SC held a hearing with or without him to find him in criminal contempt. Anyway, I wish him a good time in jail.
There was a time when urging Mr. Bhushan to consider emigrating to the United States would be unequivocal.
We have more than enough lawyers.
Billboard purveyors can’t get the lumber for any more.