A textbook, criticism, the Court and contempt

It is prime news ever since the Supreme Court reacted to the treatment of the judiciary in the Class eight textbook brought out by the National Council of Educational Research and Training (NCERT). The Court has shelved the book and the authors, and a new committee of legal eminences is to decide what our children should read.

Contempt and the handling of criticism

What is this power of contempt? It consists of two types. The first is civil contempt, invoked for disobedience of a court order. That is clear. The second is criminal contempt, and that is for obstructing the administration of justice, or prejudicing judicial proceedings. And, importantly, scandalising or lowering the authority of the court by hostile criticism that shakes public confidence in the judiciary. This is a little more complicated, requiring lines to be drawn.

Criminal contempt is not to be invoked because an individual judge’s sense of pride or ego is offended. It is invoked because a false image of the court is spread which can be deleterious and prejudicial. Why should this be actionable? Because the court and public opinion are connected by multiple twists of the democratic thread.

Judges do not have the power of the purse, or the sword. They have their power under the Constitution and the law. But the real substratum of their power, the hard rock, is the faith the public vests in the courts. Every government knows that, and that is the reason they do not mess with the courts. That goodwill and trust are garnered over countless judicial actions upholding the law, delivering justice and being the bulwark for the protection of precious rights. It is that public goodwill and trust which constitute the real power of the court, the unspoken major premise in the balance of power doctrine. That favourable opinion and support are threatened by motivated reports denigrating the judiciary, especially when repeatedly and widely spread.

Over the years, great judges have made one thing clear — that they are not immune from criticism. Chief Justice of India (CJI) Sabyasachi Mukherjee spoke about the inability of the courts to deliver quick and substantial justice and said that this criticism should turn the search light inward.

Here is CJI P.B. Gajendragadkar: “We ought never to forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity and status of the court but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.”

There is also the broad shoulder approach. CJI S.P. Bharucha, while disapproving of the statements of Medha Patkar and Arundhati Roy, explained that he was dropping action against them because “the Court’s shoulders are broad enough to shrug off their comments”. This seems rather apposite now. Justice Bharucha was one of the earliest to come out loud about corruption in the judiciary; he even offered a percentage estimate. Several other judicial leaders have since voiced concerns. It is nowhere near the malaise that affects the other branches; but even one corrupt judge is an aberration and is not to be tolerated. And, unfortunately, it is the one bad apple that makes news and taints the rest.

And from abroad the ringing voice of the great Lord Denning: “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… We must rely on our conduct itself to be its own vindication.”

Here is another example, humorous yet telling. After the Spycatcher judgement in 1987, the Daily Mail called the judges “Old Fools”. Contempt action did not follow. Lord Templeman said he could not deny that he was old, and being a fool was a matter of opinion — obviously, he could not be bothered about the Mail’s.

Where the line is drawn

But the Court draws a line. The criticism must be founded on facts set forth correctly. It must not be reckless. It must not be ill-motivated to denigrate the institution. Because, as said above, bringing down its image lessens its capacity to deliver justice to people and institutions at large. And lessens a crucial power it holds in our country, the power of judicial review over acts of legislature and executive. This is the birthing ground for millions of cases seeking relief against administrative wrongdoing and legislative excess. Politicians and bureaucrats rail against the court invoking this power, but it is this which ensures accountability, transparency and good governance. The other branches do not value these, the judiciary does. And it can hold and exercise this power because people welcome judicial relief, and place the judiciary in high esteem. The cord that binds the court and the common man sustains both in a commonality of purpose and benefit. We must, therefore, not be at ease when that connective tissue comes under threat. When it is a piece of writing that comes under the lens of contempt of court, wise judges tread cautiously. After all, they are the protectors of free speech when policemen and other harassers pick on citizens. And academic freedom, not chilling silence, is what judges would seek to protect.

Perhaps we could have avoided this scenario if the writers, who were senior academicians, had been put on notice and given an opportunity to explain their comments or conclusions. Who knows? A suitable rectification or clarification could have been undertaken. A cautionary admonition may have sufficed. The judges may have come around to amend their initial assessment of the impact on the institution and simply dropped the proceedings. It may have passed off as a storm in a teacup, or the broad shoulders would have simply shrugged. Due process works in wondrous ways. One hopes that the matter will end soon, and satisfactorily, with respect for the Court being dimmed not a whit, and free speech and fair comment not seen as adversarial to the Court. As wisely observed, when the Court onboards criticism, it affirms the system that we are all under the rule of law.

Once we cross this bridge, there is much to do. Students must be duly apprised of the role of the judiciary, not just in resolving disputes between individuals and entities, but also in its stellar role as the protector and enforcer of the Constitution. The importance of fundamental rights including the right to equality, free speech, practice of religion, and the judiciary’s role in their preservation and enhancement must be set forth. As also the challenges which it faces, of infrastructure, manpower and corruption.

The end note

One parts with a concern. The judiciary is struggling to develop adequate instruments to tackle this menace within. Impeachment is lengthy; politics plays its part there. Transfer is resorted to, but may just be a location change. In-house inquiry procedures show that action is taken, but may be futile if there is resistance from the offender. Our original constitutional scheme did not envisage encountering judicial corruption beyond the odd instance, and we now have to fashion deterrents and remedies for wider application. This will be of great benefit to hardworking and honest judges, who constitute the vast majority, as well as to the system of administration of justice. Textbook improvement will follow.

Sriram Panchu is a senior advocate and mediator

Published – April 02, 2026 12:16 am IST