Can’t use free speech to malign courts, says SC

In convicting activist-advocate Prashant Bhushan for contempt, the Supreme Court on Friday tread cautiously in dealing with the age-old clash between right to free speech and contempt of court to rule that free speech was important but could not be used to maliciously interfere with the administration of justice.

A bench of Justices Arun Mishra, B R Gavai and Krishna Murari said a citizen was entitled to make fair criticism of judges and the judiciary but free speech must remain entrenched within the boundaries of reasonable restrictions listed under Article 19(2). “If a citizen, while exercising his right under Article 19(1), exceeds the limits and makes a statement, which tends to scandalise the judges and the institution of administration of justice, such an action would come in the ambit of contempt of court,” it said.

The bench laid down two more characteristics of free speech that would amount to contempt of court. “If a citizen makes a statement which tends to undermine the dignity and authority of this court, the same would come in the ambit of ‘criminal contempt’. When such a statement tends to shake the public confidence in judicial institutions, the same would also come within the ambit of ‘criminal contempt’,” it said. The bench clarified that criticism of a judge, as an individual and not as a judge, would not fall in the ambit of contempt. “However, when the statement is made against a judge as a judge and which has an adverse effect on the administration of justice, the court would certainly be entitled to invoke the contempt jurisdiction,” it said.

“No doubt that while exercising the right of fair criticism under Article 19(1), if a citizen bonafidely exceeds the right in the public interest, this court would be slow in exercising the contempt jurisdiction and show magnanimity. However, when such a statement is calculated in order to malign the image of the judiciary, the court would not remain a silent spectator. When the authority of this court is itself under attack, the court would not be an onlooker,” Justice Gavai, who authored the 108-page judgment, said.

“The court will act with seriousness and severity where justice is jeopardised by a gross and/or unfounded attack on the judges and where the attack is calculated to obstruct or destroy the judicial process,” the bench said and quoted a judgment by Justice Krishna Iyer on this issue.

“Justice Iyer further observed that after evaluating the totality of factors, if the court considers the attack on the judge or judges to be scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in name of public interest and public justice, strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream,” the bench said.

Giving another dimension of contempt of court, the bench said, “This jurisdiction may also be exercised when the act complained of adversely affects the majesty of law or the dignity of courts. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law. This jurisdiction is not to be exercised to protect the dignity of an individual judge, but to protect the administration of justice from being maligned.

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