Person can’t exceed right of freedom of speech & expression to scandalise institution, says SC

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August 31, 2020 7:54 PM

The apex court said that when 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 cannot defend themselves publicly, the same cannot be permitted in law.

SC on Prashant Bhushan caseThe remarks were made by the bench which imposed a “nominal fine” of Re 1 on activist lawyer Prashant Bhushan in a contempt case in which he was convicted on August 14 for his two derogatory tweets against the judiciary.

Fair criticism of judgement is permissible in law but a person cannot exceed the right of freedom of speech and expression guaranteed under the Constitution to “scandalise the institution”, the Supreme Court said on Monday.

The apex court said that when 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 cannot defend themselves publicly, the same cannot be permitted in law.

“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,” said a bench comprising Justices Arun Mihra, B R Gavai and Krishna Murari.

It said, “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 scandalise the institution.”

The bench noted that allegations made in the matter were “scandalous” and were “capable of shaking the very edifice of the judicial administration and also shaking the faith of common man in the administration of justice”.

The remarks were made by the bench which imposed a “nominal fine” of Re 1 on activist lawyer Prashant Bhushan in a contempt case in which he was convicted on August 14 for his two derogatory tweets against the judiciary.

It said that argument raised by senior advocate Rajeev Dhavan, who appeared for Bhushan, that free speech is part of Article 19(1)(a) of the Constitution cannot be disputed.

“However, we are not convinced that while exercising power under Article 129 of the Constitution, we are interfering with the rights under Article 19(1)(a) of the Constitution. Supreme Court being a court of record can punish for contempt,” it said.

The bench said it cannot be disputed that free speech is essential to democracy, but it cannot denigrate one of the institutions of the democracy.

“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,” the bench said in its verdict.

It said rights under Article 19(1) of the Constitution are subject to reasonable restrictions and rights of others cannot be infringed in the process.

“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,” it said.

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