SC:Freedom of speech and expression cannot be exceeded to scandalize the institution

The Hon’ble Supreme Court, on 31st August 2020, in the matter of Prashant Bhushan and Anr. observed that though a fair criticism of judgment is permissible in law, a person cannot exceed the right under Article 19(1)(a) of the Constitution to scandalize the institution. While exercising the powers under Article 129 of the Constitution, the Court will have to strike a balance between the right under Article 19(1)(a) and the restrictions under Article 19(2) of the Constitution. 

The Hon’ble Supreme Court observed that:

The sine qua non for considering the truth as a valid defence are that the Court should be satisfied that defence is in the public interest and the request for invoking the said defence is bona fide. (Para 21)

Though there is a Freedom of Speech, freedom is never absolute because the makers of the Constitution have imposed certain restrictions upon it. Particularly when such Freedom of Speech is sought to be abused and it has the effect of scandalising the institution as a whole and the persons who are part of the said institution and cannot defend themselves publicly, the same cannot be permitted in law. Though a fair criticism of judgment is permissible in law, a person cannot exceed the right under Article 19(1)(a) of the Constitution to scandalize the institution. (Para 34)

It is very easy to make any allegation against the Judges in the newspaper and media. Judges have to be the silent sufferer of such allegations, and they cannot counter such allegations publicly by going on public platforms, newspapers or media. Nor can they write anything about the correctness of the various wild allegations made, except when they are dealing with the matter. (Para 35)

Retired Judges do have the prestige that they have earned by dint of hard work and dedication to this institution. They are also not supposed to be answering each and every allegation made and enter into public debate. Thus, it is necessary that when they cannot speak out, they cannot be made to suffer the loss of their reputation and prestige, which is essential part of the right to live with dignity. (Para 35)

The Bar is supposed to be the spokesperson for the protection of the judicial system. They are an integral part of the system. The Bar and Bench are part of the same system i.e. the judicial system, and enjoy equal reputation. If a scathing attack is made on the judges, it would become difficult for them to work fearlessly and with the objectivity of approach to the issues. The judgment can be criticized. However, motives to the Judges need not be attributed, as it brings the administration of justice into disrepute. (Para 35)

Hostile criticism of the judges or judiciary is definitely an act of scandalizing the Court. Defamatory publication concerning the Judge or institution brings impediment to justice. (Para 35)

Something more is required to purge the criminal contempt. Even a statement of apology is not enough to purge the contempt. The Court has to be satisfied as to the genuineness of the apology to make an order that contemnor has purged himself of the contempt. Before contempt is purged, the advocate could suffer the consequences of Rule 11 of the Rules which postulates that in case the advocate has been found guilty of contempt of court, his authority to act or plead in any court stands snapped. (Para 38)

Concept of equality before law, what is permissible not as to what is impermissible. It is settled that negative equality cannot be claimed as there is no concept of negative equality. (Para 44)

Truth can be the defence to the Judges also, but they are bound by their judicial norms, ethics, and code of conduct. Similarly, the code of conduct for advocates is equally applicable to the lawyers also, being part of the system. The Rules of Professional Ethics formed by the Bar Council, though couched under statutory power, are themselves not enough to prescribe or proscribe the nobility of profession in entirety. The nobility of profession encompasses, over and above, the Rules of Ethics. (Para 44)

Merely because a lawyer is involved in the filing of the public interest litigation for the public good it does not arm him to harm the very system of which he is a part. Though expectation from an ordinary citizen may be different, the duties and expectations that are expected from a lawyer of long standing are on higher side. An advocate cannot forget his ethical duty and responsibility and cannot denigrate the very system of which he/she is an integral part. Fair criticism is not to be silenced, but an advocate has to remind himself/herself, where he/she crosses the zone of propriety, and the Court cannot continuously ignore it, and the system cannot be made to suffer. When the criticism turns into malicious and scandalous allegations thereby tending to undermine the confidence of the public and the institution as a whole, such a criticism cannot be ignored. (Para 53)

Firstly, whether the Court should be moved by the statement published in the newspaper and secondly, whether, in a sub judice matters, such statements are permissible to be made. We put a question to ourselves, as to whether the Court can be guided by such opinions expressed on the public platform and as to whether the Court while exercising its judicial duties render its decision on the basis of the trial made by the media and public opinion. Answer to both the questions are found firmly in the negative. The Court cannot abdicate its duty and has to be uninfluenced by the statements published in various articles published in the media and opinions expressed therein. It has to decide the case uninfluenced by such opinions. (Para 54)

While exercising our judicial functions, we cannot take into consideration whether we will be praised or criticized for the judgment which we render. We are required to decide the cases on the basis of the law as it correctly stands, in our perception and understanding. We are not expected to decide the matter on the basis as to whether there will be criticism of the judgment or not. We have to be always ready for its fair criticism. (Para 57)

Judges have to be well versed in the laws and impartial towards friends and foes. The judicial decision cannot be influenced by the opinions expressed in the media.  (Para 65)

In a sub judice matter, releasing statement to the press in advance is an act of impropriety and has the effect of interfering with the judicial process and the fair decision making and is clearly an attempt to coerce the decision of the Court by the influence of newspaper and media, which cannot be said to be conducive for the fair administration of justice and would further tantamount to undue interference in the independent judicial making process which is the very foundation of institution of administration of justice. If such kind of action is resorted to in a sub judice matter, that too by an advocate who is facing a criminal contempt, it virtually tantamount to using a forum or platform which is not supposed to be used ethically and legally. (Para 66)

No doubt, one is free to form an opinion and make fair criticism but if such an opinion is scandalous and malicious, the public expression of the same would also be at the risk of the contempt jurisdiction. (Para 81)

Free speech, as envisaged under Article 19(1)(a) of the Constitution is a fundamental right. However, it cannot be forgotten that rights under Article 19(1) of the Constitution are subject to reasonable restrictions under Article 19(2) of the Constitution and rights of others cannot be infringed in the process. The same have to be balanced. While exercising the powers under Article 129 of the Constitution, the Court will have to strike a balance between the right under Article 19(1)(a) and the restrictions under Article 19(2) of the Constitution. (Para 81)

No doubt that freedom of press is also an important aspect in a democracy. We cannot control the thinking process and words operating in the mind of one individual, but when it comes to expression, it has to be within the constitutional limits. Lawyers’ noble profession will lose all its significance and charm and dignity if the lawyers are permitted to make any malicious, scandalous and scurrilous allegations against the institution of which they are part. The lawyers are supposed to be fearlessly independent and robust but at the same time respectful to the institution. (Para 81)

There can be no doubt about the principle that any member of the public has a right to criticize in good faith in private or public, the public act done in the seat of justice. However, the members of the public are required to abstain from imputing improper motives to those taking part in the administration of justice. Right to fair criticism is contrasted against acting in malice or attempting to bring down the reputation of the institution of administration of justice. (Para 84)

The Court speaks through its judgments and orders. Virtual exchange during the course of the proceedings is not what is the order of the Court but it could be a tentative expression of that exchange during the course of hearing. However, ultimately what is final is the order of the Court, which has the seal of it. (Para 84)

No doubt that while exercising the right of freedom of speech the fair criticism of the system is welcome and the Judges cannot be hyper sensitive even when distortions and criticism overstep the limit. However, the same cannot be stretched to permit to make malicious and scandalous statement. The Court has to act only in the case where the attack is beyond a permissible limit, the strong arm of the law strikes a blow on him who challenges the supremacy of the rule of law by fouling its source and stream. (Para 85)

Pursuant to the conviction in a criminal case, the Bar Council of India can suspend the enrolment, if it so desires. It is also open to this Court to debar from practicing in a Court. (Para 89)

The faith of the citizens of the country in the institution of justice is the foundation for rule of law which is an essential factor in the democratic set up. (Para 91)

Copy of judgement: Judgement_31-Aug-2020

-Adv. Tushar Kaushik

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