When the legislature restricts speech, courts can review it. When the executive does so, courts can strike it down. But when the Supreme Court itself adopts a speech-restrictive posture, constitutional remedies become limited. There is no appellate forum above it. Constitutional scholars often described this problem as an unchecked censorial power and it becomes particularly serious when the authority exercising it is the final judicial institution.On March 11, a Supreme Court of India bench comprising Chief Justice Surya Kant and Justices Joymalya Bagchi and V.M. Pancholi, while hearing a suo motu petition concerning the Class 8 NCERT Social Science chapter “The Role of the Judiciary in Our Society,” including the disputed section titled “Corruption in the Judiciary,” directed that those involved in drafting the chapter be disassociated from all publicly funded curricular work, observing that there was no reason for them to continue shaping textbooks.Earlier, on February 26, the court ordered the withdrawal of the book containing the chapter and indicated the possibility of contempt proceedings.The constitutional questionThese developments raise a straightforward constitutional question: under what provision of law does a court have the power to ban a book?Article 19(2) of the Constitution of India permits parliament to enact laws imposing reasonable restrictions on freedom of speech on specified grounds. The article states: “nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law…” The operative word is “law”. Restrictions on speech must be traceable to a law enacted by legislature and justified on the grounds listed in Article 19(2). A judicial order is not in itself legislation within the meaning of Article 13 or Article 19(2).Two constitutional powers of the Supreme Court may be relevant in this context. The first is Article 129, which recognises the Supreme Court as a court of record and grants it the power to punish for contempt of court. Contempt proceedings are ordinarily directed against persons who have acted contemptuously, not against books as objects. A finding of contempt normally follows notice, an opportunity to respond and adjudication after hearing the affected party.A blanket pre-emptive ban before such adjudication raises questions about the scope of this power.The second provision is Article 142, which is a “complete justice” power. This is the most expansive judicial power in the constitution and the Chief Justice of India’s apparent implied reliance. However, the Supreme Court itself clarified the limits of this power in Supreme Court Bar Association vs Union of India & Anr, where it held that Article 142 cannot override substantive law or confer powers otherwise unavailable. A book ban, especially a pre-conviction ex-parte and blanket ban with criminal contempt implications, goes well beyond what Article 142 could legitimately sustain.As recorded in the February 26 order, NCERT had already placed distribution of the textbook on hold and undertaken to revise the chapter before the court’s intervention. The entire legal justification for interim relief in contempt proceedings is preservation – freezing a situation so the subject matter is not dissipated while the case is heard. In this case, there was nothing left to preserve. The seizure and blanket ban were therefore not aimed at preservation but punitive, and punishment before conviction, without a hearing, cannot be grounded in either Article 129 or Article 142.The doctrinal basis for the contempt invocation also warrants scrutiny. In P.N. Duda vs P. Shiv Shankar (1988), the Supreme Court held that fair comment on matters of public interest, including criticism of judicial institutions, is protected under Article 19(1)(a) and does not constitute scandalising contempt. The disputed portion of the chapter referred to the existing complaint mechanism under the Centralised Public Grievance Redress and Monitoring System (CPGRAMS), noting that over 1,600 complaints were received between 2017 and 2021, and cited public statements by former chief justices acknowledging shortcomings in transparency. Criticism grounded in such material falls within the protective scope recognised in the P.N. Duda decision.Professional consequence and Article 21The three individuals – Michel Danino, Suparna Diwakar and Alok Prasanna Kumar – have been directed to be disassociated from any curriculum-related work funded by public resources, across the Union, all states, all Union Territories and all public universities. The right to livelihood is constitutionally protected under Article 21, as affirmed by the Supreme Court in Olga Tellis vs Bombay Municipal Corporation (1985). A blanket nationwide professional exclusion imposed before conviction directly engages that protection. The absence of a fixed duration or an independent review mechanism makes the deprivation open-ended and functionally punitive.The contents of the court’s March 11 order also raise concern. Paragraph 8 of the order finds that the authors either lacked “reasonable informed knowledge … and/or” deliberately and knowingly misrepresented the facts. Ignorance and deliberate misrepresentation are mutually exclusive mental states. Criminal contempt requires a finding of deliberate intent. A punitive professional exclusion imposed on a disjunctive finding that cannot determine whether the conduct was negligent or intentional has no secure foundation in either contempt law or natural justice.The “and/or” formulation in the order risks conveying that the reasoning accommodates whichever mental state the facts may ultimately support, rather than clearly identifying one at the threshold.The same paragraph provides that the order is “subject to these members of the TDT approaching this court for modification, along with an explanation, if any, that they wish to tender”. (TDT refers to the textbook development team.) This formulation of th court raises concerns regarding burden allocation. In systems governed by natural justice, the justification for a punitive measure ordinarily lies with the authority imposing it. Here, the affected individuals are required to seek modification before the same forum that has already recorded its prima facie view.If restrictions on speech concerning criticism of the judiciary operate outside the framework of Article 19(2), the practical effect may resemble the creation of a ninth ground of restriction, “criticism of the judiciary”, which is not explicitly recognised in the constitutional text.The appeal vacuumThe institutional context is also important. In India’s constitutional structure, the Supreme Court is the terminus of the legal system. Article 136 gives it discretionary appellate jurisdiction. Article 32 makes it the guardian of fundamental rights. Even the court’s own jurisprudence has repeatedly described itself as the “sentinel on the qui vive” – the watchman who never sleeps.However, when questions arise concerning the court’s own exercise of authority, the available remedies remain limited. Review petitions and curative petitions are heard by the Supreme Court itself. In contempt matters in particular, the court’s determination is generally final. As a result, a person affected by such an order must ordinarily seek reconsideration from the same institution that issued it. This structural feature of the constitutional framework creates what may be described as an appeal vacuum.As we know, the Supreme Court in Kesavananda Bharati vs State of Kerala declared that the “basic structure” of the constitution cannot be amended even by Parliament. Among the elements of basic structure are judicial independence and the rule of law. But judicial independence was conceived as independence from the executive and legislature – it was never meant to be independence from accountability altogether.Institutional trust is not built by silencing doubtDemocratic institutions draw their legitimacy from two sources. Output legitimacy refers to the belief that an institution produces fair and reasoned outcomes. Input legitimacy refers to the openness of the institution to scrutiny and public discussion. Courts do not derive democratic authority through elections. Their legitimacy, therefore, rests largely on the strength of their reasoning and the transparency of their processes.Restrictions on publications addressing institutional shortcomings may have broader consequences, including a potential deterrent effect on journalism and scholarship. Every legal academic, every journalist covering the judiciary, every policy researcher at a think-tank observing the professional consequences imposed without a full hearing may reassess the risks associated with critical writing on the judiciary.This calculation will not make the judiciary stronger. It makes the discourse around the judiciary shallower, more sycophantic and less capable of generating the informed public pressure that historically pushes institutional reform. You cannot have the Law Commission of India recommending impeachment reform if no one can write about why impeachment reform is needed.Paragraph 10 of the March 11 order directs that the rewritten chapter cannot be published until it is approved by a committee of experts, preferably including a former judge. This creates a court-directed pre-publication approval requirement for future curricular material about the judiciary. Indian constitutional jurisprudence has approached prior restraints on publication with caution. In Brij Bhushan vs State of Delhi (1950), the Supreme Court held that pre-censorship restricts the liberty of the press under Article 19(1)(a) and in Romesh Thappar vs State of Madras (1950), it held that prohibiting the circulation of a publication infringes the same freedom unless justified under Article 19(2).Paragraph 10, therefore, raises a constitutional question as to whether such pre-publication approval, absent a statutory basis, is consistent with Article 19. If courts supervise how the judiciary is described in school curricula, the educational narrative presented to students may increasingly reflect a curated institutional perspective. Civic education traditionally includes both the achievements and the challenges of constitutional institutions.Democracy for the few, fear for the manyThere is a democratic dimension to this episode. In practice, the capacity to question institutions of power, like the Supreme Court in this instance, is unevenly distributed. Individuals with professional proximity to the power or substantial legal resources may be better positioned to absorb the consequences of criticism. Journalists, independent researchers and ordinary citizens often play a central role in raising questions that contribute to institutional accountability.When the perceived costs of such criticism include professional exclusion or contempt proceedings, the right to free speech under Article 19(1)(a) may remain on paper while becoming far harder to exercise in reality.The direction issued in paragraph 12 of the March 11 order intensifies this concern. The court has asked the Union government to identify individuals who have acted, in the court’s language, “irresponsibly” on social media in relation to its February 26 order. The difficulty is that irresponsible commentary is not a defined offence under the Contempt of Courts Act, nor a recognised ground for restricting speech under Article 19(2), and lacks a settled legal meaning.The Supreme Court in Shreya Singhal vs Union of India (2015) struck down Section 66A of the Information Technology Act precisely because its operative terms, such as “grossly offensive” and “menacing”, were too vague to provide clear notice of what speech was prohibited.Further, a direction to the executive to identify and report such commentary presents a structural concern within a constitutional framework where the judiciary is designed to act as a check on state power.Courts remain accountable only when the right to criticise them can be exercised in practice. The formal existence of right is not enough; it must be usable by people who lack institutional protection. Where the perceived costs of expression include professional consequences, potential contempt proceedings and the possibility of state identification of critics, the gap between the constitutional guarantee of free speech and its practical availability may widen.Yash Jangid is an advocate practising before the Rajasthan High Court and serves as Asia Pacific Regional Forum Liaison Officer at the International Bar Association. He can be reached on X and LinkedIn at @jangidyash.