Measure for measure: On India’s courts and criticism

While it is the courts’ prerogative to punish contempt, how well they have separated contemptuous attacks from constitutionally protected criticism, especially by journalists, lawyers, activists, and scholars, has varied widely. This is because the judiciary has not been able to draw consistent lines between fair and exaggerated criticism, politically motivated and defamatory comments, and speech that obstructs justice. The judiciary faces misinformation, political pressure, abusive online discourse, and declining public trust, and the ways in which judges can respond to these attacks are limited. Rhetorical excess in oral observations must also not be confused with legal doctrine. However, recent comments by the Bench have created the appearance of a judiciary increasingly intolerant of external scrutiny. Last week, when hearing a lawyer’s petition over not having been elevated to a senior rank, CJI Surya Kant described certain actors in the legal ecosystem as “parasites” and certain young lawyers engaging in RTI-based activism as “cockroaches”. While he later said the remarks were directed at persons entering professions with bogus degrees, rather than critics of the judiciary, such language is unbecoming of the CJI. The tenor follows the NCERT textbook controversy, with the Supreme Court focusing its manifest ire on three academics involved in drafting the chapter, effectively excluding them from work on public school curricula without prior hearing. The action evoked concerns about the Court being aggrieved party and arbiter. In the Ali Khan Mahmudabad matter, the Court granted him relief from coercive action but also imposed a gag order. Then, in a display of willingness to discipline the norms of public conduct rather than determine legality, it urged the state to decline to prosecute him as a concession.

When a CJI’s comments of this nature appear outside formal contempt proceedings, they render a chilling effect as they amount to institutional condemnation without the safeguards of due process. The comments on using the RTI Act as a basis for activism have a similar effect, beyond the Act being a legitimate instrument. Recently, when a journalist (with a law degree) sought data on complaints against specific judges, the Supreme Court Registry declined the existence of such information. When the journalist produced a Law Ministry disclosure to the contrary, the Registry’s legal representative dubbed the inquiry “fishing and roving” — a moving goalpost that was, again, under-concerned with legality while raising questions of the Court arguing its own case. Former CJI D.Y. Chandrachud said that judges are public actors exercising state power and courts should not react defensively to every line of criticism. That attitude improved how the bar, the press, and the academy experienced courts. The recent comments have set the clock back.