Judicial lambasting in the age of social media

“There is a fine line between free speech and hate speech. Free Speech encourages debate, whereas hate speech incites violence” – Newton Lee

Through judicial activism, the judiciary often peruses critical issues of social radicalization and the rise in fundamentalist tendencies demonstrated by various factions. While judicial members are evidently not immune to fair criticism, misstatements, malicious and disparaging remarks are made to shake public confidence in the judiciary.

In a modern democracy, the institutionalization of checks and balances is perhaps one of the most vital tools, and a fragile one, given the wide expanse of social media today. On social media platforms, we see the subjective dissection of judgments, derogatory attacks and social ostracization of judicial members by users. These self-anointed messiahs often paint a picture of fictional injustice, overtly tipping towards political hyperactivity without any foundational understanding of the issue at hand.

While a free press is supposedly the fourth pillar of the Indian constitutional democracy, unfortunately, it finds itself inflicted with termite-like ravages under the garb of criticism, gnawing through the very pertinency of social issues, leaving the overall veracity of judicial discourse crumbling.

The backlash that occurred in the aftermath of judicial comments passed by Justices Surya Kant and JB Pardiwala during the hearing of Nupur Sharma’s case is a recent example of the growing social castigation of the judiciary casting aspersions on the legitimacy of the right to free speech.

What is appalling is the non-contextual, disparaging remarks that flooded social media, dissecting the judges’ personal and professional lives, premised only on a fragmented and distasteful interpretation of fleeting remarks. What is pertinent to understand in this context is that the criticism is not founded on constitutional tenets, but instead on political inclinations and hatred towards various religious factions.

Any person expressing views for or against the targeted faction - in this case members of the judiciary - are made scapegoats. What is easily forgotten is that the constitutional post of judicial members demands them to balance the demands of the Rule of Law. Maintaining Rule of Law is an arduous exercise, which requires judicial craftsmanship to walk the tightrope between majoritarian pressures and widespread social ramifications.

The Constitution of India guarantees freedom of speech and expression as a fundamental right with reasonable restrictions prescribed under Article 19(2) protecting the interests of the State's sovereignty and integrity, friendly relations with other countries, public order, decency or morality, or contempt of court, defamation, or incitement to commit a crime. Hence, criticism premised on good-faith and well-founded legal knowledge is conveniently discarded at the cost of causing judicial ostracization.

The legal diaspora is all-inclusive, an example of which is Section 5 of the Contempt of Courts Act, 1971 which reads- “a person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided. A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided."

The same legislation under Section 2(c) defines criminal contempt as "the publication of any matter or the doing of any other act which scandalizes or lowers the authority of any court; or prejudices or interferes with the due course of any judicial proceeding; or obstructs the administration of justice."

The legislative intent thus traverses the lines of reasonable restriction laid down in the Constitution of India. This was also reiterated in CK Daphtary v. OP Gupta (1971), where the apex court drew parallels between the law on contempt and reasonable restrictions.

Often, freedom of speech is suspected to be trivialized at the cost of protecting the integrity of the courts in India. However, this suspicion is employed as a defence against disparaging remarks targeted at the very authority of the court, and also seeds law and order concerns where the public at large is seen engaging in antisocial activities.

There are succinct examples of how deterrence through punishment has proved futile, as observed in the Narmada Bachao Andolan case, wherein deterrence was sought to be enforced through punishment, but instead proved counterproductive. If the Court had punished them, it would have further amplified their public esteem, and to that extent, the Court would have suffered erosion of its public esteem.

Ill-founded social media activism also ripens the need to implement strict regulation by social media platforms like Twitter, YouTube, Facebook and the like. Recently, Justice GR Swaminathan of the Madras High Court, Madurai Bench initiated suo motu contempt of court proceedings against YouTuber and blogger Savukku Shankar, whose incessant attacks on the judge have amplified the need for strict regulation.

The weapon of free speech is callously used, and enforcement of reasonable restrictions on such uncharitable remarks is warranted in order to sustain the legitimacy of judicial institutions. In this regard, Justice Swaminathan made incisive observations, noting,

“...attacks attempted at Judges for their judgments lead to a dangerous scenario, wherein Judges would have to pay greater attention to what the media thinks rather than what the law actually mandates. This puts the rule of law on the burner, ignoring the sanctity of respect for the Courts.”

Hence, attempts to induce majoritarian or even misanthropic views against judicial members under the garb of free speech not only mars their freedom to dispense their duties, but also attacks the very solemnity of the constitutional post held by them. Whether there is a “Streisand effect” to this or not is a matter that has no bearing on the issue of judicial vilification. Where there is a right, there is a corresponding duty assigned to citizens of the intelligentsia, and it's high time they are made aware of it.

Nevertheless, the distinguishing features of an egalitarian society must never be lost and what distinguishes it from a totalitarian society is the very existence of free speech. Such liberty is available for propagation of common views, but also for views which are proven to be perverse. While opening the floodgates of such unwarranted lambasting of judicial members will rarely shake the strong foundational pillars of the Indian judiciary, there is a need for the intelligentsia to be well-informed.

Just as various parts of a judgment contain a ratio and obiter, similarly, during the course of proceedings, there are conversational remarks which are passed in a court of law during interactions with lawyers. However, these under no circumstances ripen into the black letter of the law.

This also hints at how trials induced by the public at large on mediums such as Twitter, Facebook, Reddit, Instagram et al are only but a physical manifestation of burning sentiments, which are heavily coloured with personal opinions, all of which have no bearing whatsoever to the law written and the law opined.

Hence, what results is nothing but misinformation, which is perhaps why the judiciary expressed concerns on the impact of such ill-informed and malicious remarks on the overall law and order situation of the country. While such flagellation has tranced a whole generation with misinformation, the comfort of four-walled criticism also casts a duty upon the citizens to understand the context of the entire judgment along with the facts and issues at hand.

What is ironic is that while the judiciary is often lambasted as a remnant of the colonial hangover, the entire trend of social criticism is founded in western ideology. While citizens are equally equipped to alert prejudicial and discriminatory practices or situations wherein judgments are perverse to the very constitutional spirit, dissecting fragmented remarks or conversational observations is ill-advised.

Mahalakshmi Pavani is a Senior Advocate of the Supreme Court of India. Views are personal.