The recent decision of the Supreme Court to impose a complete blanket ban on the publication and dissemination of a school textbook chapter discussing corruption in the judiciary and the massive backlog of cases has triggered a familiar constitutional tension.
On one side stands institutional dignity and public confidence in courts. On the other stands Article 19(1)(a) of the Constitution, which guarantees freedom of speech and expression. The clash is not new. But the scale and immediacy of the response - a total prohibition - raises difficult questions about proportionality, precedent and the confidence of democratic institutions in their own resilience.
The offending chapter, titled The Role of the Judiciary in Our Society, reportedly referred to corruption “at various levels of the judiciary” and highlighted the staggering backlog of over 53 million pending cases. It attributed delays to inadequate numbers of judges, complex procedures and poor infrastructure. These are not obscure allegations whispered in pamphlets. They are facts widely documented in parliamentary debates, Law Commission reports and even judicial speeches. Yet, the Court reacted with a sweeping ban and initiated contempt proceedings against officials involved in including the chapter.
The Constitutional starting point is clear. Freedom of speech is protected under Article 19(1)(a), subject to reasonable restrictions under Article 19(2), including contempt of court and defamation. But Indian free speech jurisprudence has consistently viewed prior restraint - stopping publication before circulation - as constitutionally suspect. In Brij Bhushan and Anr v. State of Delhi and Romesh Thappar v. The State of Madras, the Court invalidated pre-censorship regimes almost at the birth of the Republic. The principle was simple: post-publication penalties may sometimes be justified; blanket prohibitions are far more dangerous.
That logic was reaffirmed decades later in S Rangarajan v. P Jagjivan Ram, where the Court held that expression cannot be suppressed unless the anticipated danger is proximate and serious. The Court warned against silencing speech merely because it might provoke discomfort or protest. If those precedents mean anything, a complete ban must meet an exceptionally high threshold.
The defence of the ban rests primarily on contempt jurisprudence. Indian law still recognises “scandalising the court” as a form of criminal contempt. The judiciary, unlike the legislature or executive, does not have a political constituency or electoral platform through which to defend itself. Its authority rests on public confidence. To portray the judiciary as corrupt in a school textbook, the argument goes, risks eroding institutional trust at a formative age.
But contempt law itself contains limits. In Indirect Tax Practitioners’ Association v. RK Jain, the Supreme Court acknowledged that fair and reasonable criticism of judicial functioning is permissible. Democratic institutions are not immune from scrutiny. Allegations must be assessed for falsity, malice and intent to obstruct justice. A textbook referencing systemic corruption and case backlog - especially when such backlog is documented in official data - does not automatically satisfy the test of contempt.
The proportionality doctrine complicates matters further. Since Modern Dental College v. State of Madhya Pradesh and especially after privacy jurisprudence, proportionality has become central to evaluating restrictions on fundamental rights. The State must demonstrate: a legitimate aim, rational connection, necessity (least restrictive measure) and balancing. Even assuming that protecting judicial integrity is a legitimate aim, was a complete blanket ban necessary? Could the Court have directed revision, contextual clarification, or expert review instead? A prohibition on any further publication appears at first glance to fail the least restrictive means test.
Two recent judgments deepen the constitutional tension. In Re: Prashant Bhushan & Anr, the Supreme Court reaffirmed its willingness to use criminal contempt to protect institutional authority, even in response to criticism voiced on social media. The decision signaled that sharp allegations against the judiciary may still attract sanction, reinforcing a protective approach to reputation. Yet, in KS Puttaswamy v. Union of India, the Court elevated proportionality and constitutional morality as central interpretive tools. Together, these cases frame the present controversy: institutional dignity remains guarded, but restrictions on speech must survive rigorous proportionality scrutiny.
Comparative constitutional experience underscores this concern. In the United States, prior restraint is almost per se unconstitutional. In New York Times Co v. United States, the US Supreme Court refused to block publication of classified Pentagon Papers despite national security claims. Criticism of the judiciary is robustly protected unless it poses a clear and present danger. A civics textbook discussing judicial backlog would comfortably fall within protected speech.
The United Kingdom abolished the offence of scandalising the court in 2013, recognising that modern democracies must tolerate sharp criticism of judges. Canada’s Ontario Court of Appeal in R v. Kopyto held that criticism must present a real and substantial danger to the administration of justice before being restricted. These jurisdictions reflect a shared democratic instinct: institutional confidence is strengthened, not weakened, by openness.
Of course, constitutional traditions are not interchangeable. India’s judiciary occupies a uniquely powerful position, often stepping into governance vacuums through public interest litigation. With great authority comes heightened sensitivity. Judges may fear that claims of corruption in school books could delegitimise courts in the eyes of children, particularly when judicial remarks/actions are presented out of context. The concern is not entirely trivial. Public trust in the judiciary is foundational.
Yet, the deeper question is whether trust can be sustained by suppression. Democracies derive legitimacy not from insulation against criticism, but from the ability to withstand it. The case backlog - over 53 million pending cases - is itself a matter of record. Acknowledging systemic challenges does not equate to defaming individual judges. In fact, teaching students about institutional constraints, including resource shortages and procedural complexity, may foster more informed citizens.
There is also a structural dimension. The Supreme Court is both guardian of free speech and beneficiary of contempt protection. When it acts to silence criticism about itself, even with good intentions, it risks appearing as a judge in its own cause. That perception alone warrants caution. The optics of banning discussion about judicial shortcomings may inadvertently validate the very concerns the ban seeks to quell.
Moreover, blanket bans carry symbolic weight. They signal fragility. If institutional integrity requires silencing textbooks, does that suggest confidence in the institution’s moral authority is waning? Liberal democracies increasingly recognise that legitimacy flows from transparency and reform, not censorship.
None of this is to suggest that educational material should irresponsibly sensationalise allegations. Nuance matters, especially for younger students. If the chapter contained sweeping or unverified accusations without balance, revision may well be justified. Educational authorities have a duty to ensure fairness and context. But the constitutional remedy for imbalance is correction, not erasure.
The Indian Constitution envisions a society where citizens, including adolescents, can critically engage with governance structures. Shielding students from discussions about backlog or systemic corruption risks infantilising civic education. It also underestimates their capacity for understanding complexity. Democracies do not collapse because textbooks acknowledge institutional weaknesses.
Ultimately, whether the ban survives constitutional scrutiny will depend on how courts articulate the boundaries of contempt and proportionality. If the restriction is temporary pending review and revision, it may be defended as regulatory. If it persists as an absolute prohibition on discussion of judicial corruption in educational material, it will sit uneasily with the free speech legacy the Supreme Court itself built.
The episode is a reminder that constitutional values are tested most severely when institutions feel vulnerable. The temptation to suppress criticism in defense of dignity is perennial. But history suggests that dignity rooted in enforced silence is brittle. The jurisprudence of Supreme Court of India itself has long warned against the dangers of prior restraint. The measure of institutional strength is not the absence of criticism, but the capacity to endure and respond to it.
If the judiciary seeks to cultivate trust among the next generation, the more durable path may lie in transparency, reform and engagement rather than prohibition.
Syed Shiraz Fazal is an Assistant Professor of Law, Lloyd Law College.
Twinkle Hussain is an Assistant Professor of Law, Asian Law College.