Courts should not gag criticism, says top court

The top court emphasised that courts should not issue gag orders against media organisations.

The Supreme Court on Monday emphasised that courts should not issue gag orders against media organisations and underlined that fair criticism of a judicial order cannot be construed as contempt of court, expressing concerns over a Delhi high court directive requiring Wikipedia to remove within 36 hours a page related to a pending ₹2 crore defamation suit filed by news agency Asian News International (ANI) against the platform.

The Supreme Court bench made it clear that judicial criticism, even when directed at a court’s proceedings, does not automatically amount to contempt (ANI)

“Why should courts be touchy about some comments made against their orders in social media?” asked a bench comprising justices Abhay S Oka and Ujjal Bhuyan, highlighting the importance of free speech rights for media organisations. The top court observed that it was “ironical” that ANI, itself a media entity, was seeking a gag order against another platform that disseminates information.

The bench questioned the Delhi high court’s order issued on October 16, 2024, which held that criticism of a judicial order by the crowd-sourced encyclopedia Wikipedia amounted to “interference in court proceedings.”

The bench made it clear that judicial criticism, even when directed at a court’s proceedings, does not automatically amount to contempt as it admitted an appeal filed by Wikimedia Foundation against the high court’s order.

“Sometimes, someone says that you are sitting here with a preconceived mind or that you are not giving a proper hearing. People say things, and we have to tolerate it,” observed the bench . It further questioned why courts should be overly sensitive to remarks made on social media and reaffirmed that passing gag orders against media organizations is not permissible.

“Courts can’t pass gag orders. Someone may be proceeded against under a criminal contempt action, a notice will be issued, and the other side can opt to purge the contempt. But to tell someone to remove something just because there is some criticism of what the court has said or done is not okay,” remarked the bench.

It also pointed out that judges themselves are frequently the subject of public scrutiny and critical remarks but that courts must adjudicate on legal principles rather than take offence. “So much is said about us even as we are judges. Someone says we are prejudiced. That’s their opinion, but we decide on law,” it added.

The Supreme Court’s intervention came after Wikipedia challenged the Delhi high court’s order, which directed the platform to take down a page discussing the defamation suit filed by ANI. ANI initiated legal proceedings against Wikipedia for alleged defamation. After ANI filed a contempt plea alleging that Wikipedia failed to comply with a prior disclosure order from August 20, the high court directed the platform to remove the page, calling it “prima facie contemptuous” and an interference with court proceedings.

The controversy escalated when another Wikipedia page titled “Asian News International vs. Wikimedia Foundation” appeared. This new page claimed that the presiding single judge in the matter had threatened to order the closure of Wikipedia’s business transactions in India if the platform did not comply with court orders. The page further alleged that the single judge’s order directing Wikipedia to reveal details of users who edited ANI’s Wikipedia page amounted to censorship and posed a threat to the free flow of information.

Taking a strong stance against Wikipedia’s handling of the case, the high court stated that the online encyclopedia could not be allowed to “threaten the judge” and reiterated that the sub judice principle had been violated. The court also questioned Wikipedia’s legal protections under Section 79 of the Information Technology Act, which grants intermediary platforms immunity from liability for third-party content.

Wikipedia, through its counsel, senior advocate Kapil Sibal, defended its position in the Supreme Court, arguing that the high court had issued an order without even making a determination on the alleged contempt or defamation.

The Supreme Court took cognisance of these arguments and directed that the matter be examined further. “The question here is about free speech rights of media,” noted the bench, making it clear that courts must not curtail freedom of expression through overly broad or preemptive restrictions.

While the ANI’s counsel contended that Wikipedia had not complied with previous orders of the high court and was thus in contempt, the bench retorted: “Look at the irony here. You are a media organisation and are pressing for a gag order against another media organisation.”

In its order, the bench stated that it was specifically concerned about the legality and validity of that part of the Delhi high court’s order, which declared Wikipedia’s content to be contemptuous. It proceeded to issue a notice to ANI and listed the matter for hearing in the last week of March.