Criticism of Judicial Pronouncements vis-a-vis Freedom of Speech-A.P.Mishra (ADJ)

Freedom of speech and expression has always been considered as the most cherished right of every human being. Justice Brennan of U.S. Supreme Court, while dealing with a case of libel – New York Times Company v. L.B. Sullivan observed that “it is a prized privilege to speak one’s mind, although not always with perfect good taste, on all public institutions and this opportunity should be afforded for vigorous advocacy no less than abstract discussion.” In all civilized societies, the Courts have exhibited a high degree of tolerance and accepted adverse comments and criticism of their orders/judgments even though, at times, such criticism is totally off the mark, and the language used is inappropriate. The Privy Council has beautifully described the right of a member of the public to criticize the functioning of a judicial institution in Andre Paul Terence Ambard v. Attorney General of Trinidad and Tobago  (AIR 1936 PC 141: The Supreme Court  quoted in -Indirect Tax Practitioners Association v. R. K. Jain (AIR 2011 SUPREME COURT 2234,) in the following words :

          “No wrong is committed by any member of the public who exercises the ordinary right of criticizing in good faith in private or public the public act done in the seat of Justice. The path of criticism is a public way: the wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of Justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of Justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.”
In Debi Prasad Sharma v. The King Emperor (AIR 1943 PC 202),  Lord Atkin speaking on behalf of the Judicial Committee observed:

          “In 1899 this Board pronounced proceedings for this species of contempt (scandalization) to be obsolete in this country, though surviving in other parts of the Empire, but they added that it is a weapon to be used sparingly and always with reference to the administration of Justice: McLeod v. St. Auhyn. In In re a Special Reference from the Bahama Islands, the test applied by the very strong Board which heard the reference was whether the words complained of were in the circumstances calculated to obstruct or interfere with the course of Justice and the due administration of the law. In Queen v. Gray it was shown that the offence of scandalizing the Court itself was not obsolete in this country. A very scandalous attack had been made on a Judge for his judicial utterances while sitting in a criminal case on the circuit, and it was with the foregoing opinions on record that Lord Russell of Killowen, C.J., adopting the expression of Wilmot, C.J., in his opinion in Rex v. Almon which is the source of much of the present law on the subject, spoke of the article complained of as calculated to lower the authority of the Judge.”

In Regina v. Commissioner of Police of the Metropolis ((1968) 2 All ER 319),  Lord Denning observed:

          “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.

          It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of Justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.

          Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.”

 In the land of Gautam Buddha, Mahavir and Mahatma Gandhi, the freedom of speech and expression and freedom to speak one’s mind have always been respected. After independence, the Courts have zealously guarded this most precious freedom of every human being. Fair criticism of the system of administration of Justice or functioning of institutions or authorities entrusted with the task of deciding rights of the parties gives an opportunity to the operators of the system/institution to remedy the wrong and also bring about improvements. Such criticism cannot be castigated as an attempt to scandalize or lower the authority of the Court or other judicial institutions or as an attempt to interfere with the administration of Justice except when such criticism is ill-motivated or is construed as a deliberate attempt to run down the institution or an individual Judge is targeted for extraneous reasons. Ordinarily, the Courts do not use the power to punish for contempt for curbing the right of freedom of speech and expression, which is guaranteed under Article 19(1)(a) of the Constitution. Only when the criticism of judicial institutions transgresses all limits of decency and fairness or there is total lack of objectivity or there is deliberate attempt to denigrate the institution then the Court would use this power (See: “Indirect Tax Practitioners Association v. R. K. Jain”AIR 2011 SUPREME COURT 2234.)

The judgments of the Supreme Court in Re S. Mulgaokar (1978) 3 SCC 339 : (AIR 1978 SC 727))  and P.N. Duda v. P. Shiv Shanker((1988) 3 SCC 167 : (AIR 1988 SC 1208))  are outstanding examples of this attitude and approach. In the first case, a three-Judge Bench considered the question of contempt by a newspaper article published in Indian Express dated 13.12.1977 criticizing the Judges of the Supreme Court. The article noted that the High Courts had strongly reacted to the proposal of introducing a Code of judicial ethics and propriety. In its issue dated December 21, 1977 an article entitled “behaving like a Judge” was published which inter alia stated that the Supreme Court of India was “packed” by Mrs Indira Gandhi “with pliant and submissive judges except for a few”. It was further stated that the suggestion that a code of ethics should be formulated by judges themselves was “so utterly inimical to the independence of the judiciary, violative of the constitutional safeguards in that respect and offensive to the self-respect of the judges as to make one wonder how it was conceived in the first place”. A notice had been issued to the Editor-in-Chief of the newspaper to show cause why proceedings for contempt under Article 129 of the Constitution should not be initiated against him in respect of the above two news items. After examining the submissions made at the Bar, the Court dropped the contempt proceedings.
           The Chief Justice Beg, expressed his views in the following words:

          “Some people perhaps believe that attempts to hold trials of everything and everybody by publications in newspapers must include those directed against the highest Court of Justice in this country and its pronouncements. If this is done in a reasonable manner, which pre-supposes accuracy of information about a matter on which any criticism is offered, and arguments are directed fairly against any reasoning adopted, I would, speaking for myself, be the last person to consider it objectionable even if some criticism offered is erroneous. In Bennett Coleman and Co. v. Union of India((at p. 828) (SCC pp. 827-28) : (AIR 1973 SC 106 at pp. 149-150), I had said

          “John Stuart Mill, in his essay on ‘Liberty’, pointed out the need for allowing even erroneous opinions to be expressed on the ground that the correct ones become more firmly established by what may be called the ‘dialectical’ process of a struggle with wrong ones which exposes errors. Milton, in his ‘Areopagitica’ (1644) said:

Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; whoever knew Truth put to the worse, in a free and open encounter?… Who knows not that Truth is strong, next to the Almighty; she needs no policies, no stratagems, no licensings to make her victorious; those are the shifts and defences that error makes against her power ….”

          Political philosophers and historians have taught us that intellectual advances made by our civilization would have been impossible without freedom of speech and expression. At any rate, political democracy is based on the assumption that such freedom must be jealously guarded. Voltaire expressed a democrat’s faith when he told, an adversary in arguments : “I do not agree with a word you say, but I will defend to the death your right to say it”. Champions of human freedom of thought and expression throughout the ages, have realized that intellectual paralysis creeps over a society which denies, in however subtle a form, due freedom of thought and expression to its members.

          “Although, our Constitution does not contain a separate guarantee of Freedom of the Press, apart from the freedom of expression and opinion contained in Article 19(l)(a) of the Constitution, yet, it is well-recognized that the Press provides the principal vehicle of expression of their views to citizens. It has been said:

          “Freedom of the Press is the Ark of the Covenant of Democracy because public criticism is essential to the working of its institutions. Never has criticism been more necessary than today, when the weapons of propaganda are so strong and so subtle. But, like other liberties, this also must be limited.”

Justice Krishna Iyer  agreed with Chief Justice Beg and observed (Re S. Mulgaokar(1978) 3 SCC 339 : (AIR 1978 SC 727)):

          “Poise and peace and inner harmony are so quintessential to the judicial temper that huff, “haywire” or even humiliation shall not besiege; nor, unveracious provocation, frivolous persiflage nor terminological inexactitude throw into palpitating tantrums the balanced cerebration of the judicial mind. The integral yoga of shanti and neeti is so much the cornerstone of the judicial process that criticism, wild or valid, authentic or anathematic, shall have little purchase over the mentation of the Court. I quite realize how hard it is to resist, with sage silence, the shafts of acid speech; and, how alluring it is to succumb to the temptation of argumentation where the thorn, not the rose, triumphs. Truth’s taciturn strategy, the testimony of history says, has a higher power than a hundred thousand tongues or pens. In contempt jurisdiction, silence is a sign of strength since our power is wide and we are prosecutor and judge.”

In P.N. Duda v. P. Shiv Shanker 1988) 3 SCC 167 : (AIR 1988 SC 1208) , the Supreme Court was called upon to initiate contempt proceedings against Shri P. Shiv Shanker who, in his capacity as Minister for Law, Justice and Company Affairs, delivered a speech in the meeting of Bar Council of Hyderabad on November 28, 1987 criticizing the Supreme Court. Justice Sabyasachi Mukharji, (as he then was) referred to large number of precedents and made the following observation:

          “Administration of Justice and judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by their conscience and oath of their office, that is, to defend and uphold the Constitution and the laws without fear and favour. This the judges must do in the light given to them to determine what is right. And again as has been said in the famous speech of Abraham Lincoln in 1865: “With malice towards none, with charity for all, we must strive to do the right, in the light given to us to determine that right.” Any criticism about the judicial system or the judges which hampers the administration of Justice or which erodes the faith in the objective approach of judges and brings administration of Justice into ridicule must be prevented. The contempt of court proceedings arise out of that attempt. Judgments can be criticized; the motives of the judges need not be attributed, it brings the administration of Justice into deep disrepute. Faith in the administration of Justice is one of the pillars through which democratic institution functions and sustains. In the free market place of ideas criticisms about the judicial system or judges should be welcomed, so long as such criticisms do not impair or hamper the administration of Justice. This is how courts should approach the powers vested in them as judges to punish a person for an alleged contempt, be it by taking notice of the matter suo motu or at the behest of the litigant or a lawyer.

          It has been well said that if judges decay, the contempt power will not save them and so the other side of the coin is that judges, like Caesar’s wife, must be above suspicion, per Krishna Iyer, J. in Baradakanta Mishra v. Registrar of Orissa High Court (AIR 1974 SC 710). It has to be admitted frankly and fairly that there has been an erosion of faith in the dignity of the Court and in the majesty of law and that has been caused not so much by the scandalizing remarks made by politicians or ministers but the inability of the courts of law to deliver quick and substantial Justice to the needy. Many today suffer from remediless evils which courts of Justice are incompetent to deal with. Justice cries in silence for long, far too long. The procedural wrangle is eroding the faith in our justice system. It is a criticism which the judges and lawyers must make about themselves. We must turn the searchlight inward. At the same time we cannot be oblivious of the attempts made to decry or denigrate the judicial process, if it is seriously done. This question was examined in Rama Dayal Markarha v. State of Madhya Pradesh (AIR 1978 SC 921)  where it was held that fair and reasonable criticism of a judgment which is a public document or which is a public act of a judge concerned with administration of Justice would not constitute contempt. In fact such fair and reasonable criticism must be encouraged because after all no one, much less judges, can claim infallibility. Such a criticism may fairly assert that the judgment is incorrect or an error has been committed both with regard to law or established facts. But when it is said that the judge had a predisposition to convict or deliberately took a turn in discussion of evidence because he had already made up his mind to convict the accused, or has a wayward bend of mind, is attributing motives, lack of dispassionate and objective approach and analysis and prejudging of the issues which would bring administration of Justice into ridicule. Criticism of the judges would attract greater attention than others and such criticism sometimes interferes with the administration of Justice and that must be judged by the yardstick whether it brings the administration of Justice into ridicule or hampers administration of Justice. After all it cannot be denied that predisposition or subtle prejudice or unconscious prejudice or what in Indian language is called “sanskar” are inarticulate major premises in decision making process. That element in the decision making process cannot be denied, it should be taken note of.”

In Baradakanta Mishra v. Registrar of Orissa High Court (AIR 1978 SC 921) , Justice Krishna Iyer,  speaking for himself and Justice P.N. Bhagwati, (as he then was)emphasized the necessity of maintaining constitutional balance between two great but occasionally conflicting principles i.e. freedom of expression which is guaranteed under Article 19(1)(a) and fair and fearless Justice, referred to “republican justification” suggested in the American system and observed:

          “May be, we are nearer the republican justification suggested in the American system:

“In this country, all courts derive their authority from the people, and hold it in trust for their security and benefit. In this state, all judges are elected by the people, and hold their authority, in a double sense, directly from them; the power they exercise is but the authority of the people themselves, exercised through courts as their agents. It is the authority and laws emanating from the people, which the judges sit to exercise and enforce. Contempt against these courts, the administration of their laws, are insults offered to the authority of the people themselves, and not to the humble agents of the law, whom they employ in the conduct of their Government.”

This shift in legal philosophy will broaden the base of the citizen’s right to criticize and render the judicial power more socially valid. We are not subjects of a king but citizens of a republic and a blanket ban through the contempt power, stifling criticism of a strategic institution, namely, administration of Justice, thus forbidding the right to argue for reform of the judicial process and to comment on the performance of the judicial personnel through outspoken or marginally excessive criticism of the instrumentalities of law and Justice, may be a tall order. For, change through free speech is basic to our democracy, and to prevent change through criticism is to petrify the organs of democratic Government. The judicial instrument is no exception. To cite vintage rulings of English Courts and to bow to decisions of British Indian days as absolutes is to ignore the law of all laws that the rule of law must keep pace with the Rule of life (“Indirect Tax Practitioners Association v. R. K. Jain”AIR 2011 SUPREME COURT 2234).
          McWhinney,  wrote:

          “The dominant theme in American philosophy of law today must be the concept of change – or revolution – in law. In Mr. Justice Oliver Wendell Holmes’ own aphorism, it is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. prestige argument, from age alone, that because a claimed legal rule has lasted a certain length of time it must automatically be valid and binding at the present day, regardless of changes in basic societal conditions and expectations, is no longer very persuasive. According to the basic teachings of the Legal Realist and policy schools of law, society itself is in continuing state of flux at the present day; and the positive law, therefore, if it is to continue to be useful in the resolution of contemporary major social conflicts and social problems, must change in measure with the society. What we have, therefore, concomitantly with our conception of society in revolution is a conception of law itself, as being in a condition of flux, of movement. On this view, law is not a frozen, static body of rules but rules in a continuous process of change and adaptation; and the judge, at the final appellate level anyway, is a part – a determinant part – of this dynamic process of legal evolution.”
This approach must inform Indian law, including contempt law. It is very necessary to remember the legal transformation in our value system on the inauguration of the Constitution, and the dogmas of the quiet past must change with the challenges of the stormy present. The great words of Justice Holmes uttered in a different context bear importance in this context:

          “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” (As held and quoted in — “Indirect Tax Practitioners Association v. R. K. Jain”AIR 2011 SUPREME COURT 2234)

In Naramada Bachao Andolan v. Union of India (1999) 8 SCC 308 : (AIR 1999 SC 3345 : 1999 AIR SCW 3841) , Dr. A.S. Anand, the Chief Justice, speaking for himself and Justice B.N. Kirpal,(as he then was) observed as under:

          “7. We wish to emphasize that under the cover of freedom of speech and expression no party can be given a licence to misrepresent the proceedings and orders of the Court and deliberately paint an absolutely wrong and incomplete picture which has the tendency to scandalize the Court and bring it into disrepute or ridicule. ……….Courts are not unduly sensitive to fair comment or even outspoken comments being made regarding their judgments and orders made objectively, fairly and without any malice, but no one can be permitted to distort orders of the Court and deliberately give a slant to its proceedings, which have the tendency to scandalize the Court or bring it to ridicule, in the larger interest of protecting administration of Justice.”

The growing acceptance of the phenomenon of whistleblower is also a factor which has relevance while treating contempt petitions against such persons who have raised their voice against some malfunctioning of a particular system. A whistleblower is a person who raises a concern about wrongdoing occurring in an organization or body of people. Usually this person would be from that same organization. The revealed misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations and corruption. Whistleblowers may make their allegations internally (for example, to other people within the accused organization) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues). Most whistleblowers are internal whistleblowers, who report misconduct on a fellow employee or superior within their company. One of the most interesting questions with respect to internal whistleblowers is why and under what circumstances people will either act on the spot to stop illegal and otherwise unacceptable behaviour or report it. There is some reason to believe that people are more likely to take action with respect to unacceptable behaviour, within an organization, if there are complaint systems that offer not just options dictated by the planning and controlling organization, but a choice of options for individuals, including an option that offers near absolute confidentiality. However, external whistleblowers report misconduct on outside persons or entities. In these cases, depending on the information’s severity and nature, whistleblowers may report the misconduct to lawyers, the media, law enforcement or watchdog agencies, or other local, state, or federal agencies (“Indirect Tax Practitioners Association v. R. K. Jain”AIR 2011 SUPREME COURT 2234).

The national interest requires that all criticisms of the judiciary must be strictly rational and sober and proceed from the highest motives without being coloured by any partisan spirit or tactics. This should be a part of national ethics. The judiciary cannot be immune from criticism. But, when that criticism was based on obvious distortion or gross misstatement and made in a manner which seems designed to lower respect for the judiciary and destroy public confidence in it, it could not be ignored.  The Court should act with seriousness and severity where Justice is jeopardized by a gross and/or unfounded attack on the Judges, where the attack was calculated to obstruct or destroy the judicial process. The Court must harmonize the constitutional values of free criticism, and the need for a fearless curial process and its presiding functionary, the Judge. To criticize a Judge fairly albeit fiercely is no crime but a necessary right. Where freedom of expression subserves public interest in reasonable measure, public Justice cannot gag it or manacle it. People must avoid confusion between personal protection of a libelled Judge and prevention of obstruction of public justice and the community’s confidence in that great process.


Akhileshwar Prasad Mishra
Additional District Judge
District-Ambedkar Nagar (U.P.)

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