Indian Courts Are Managing Free Speech, Not Defending It

Source: The post Indian Courts Are Managing Free Speech, Not Defending It has been created, based on the article “Judicial sensitivity to sentiments is a sign of regression” published in “The Hindu” on 9 June 2025. Indian Courts Are Managing Free Speech, Not Defending It.

UPSC Syllabus Topic: GS Paper2-Constitution of India —historical underpinnings, evolution, features, amendments, significant provisions and basic structure And functioning of the Judiciary.

Context: Indian courts are increasingly managing free speech instead of protecting it. They prioritize civility and sentiment over constitutional liberty. This shift marks a retreat from Article 19(1)(a)’s original intent — where speech, even offensive, was a check on power. Courts now treat speech as behavior to regulate, not a right to defend.

From Constitutional Protection to Sentiment Policing

1. A Shift in Judicial Role: Courts, once defenders of provocative speech, now act as guardians of public decorum. They expect deference and politeness, elevating sentiment over liberty. This weakens their counter-majoritarian role.
2. Redefining the Citizen-State Relationship: In recent rulings, citizens are seen less as rights-holders and more as children needing restraint. The Allahabad High Court rejected quashing an FIR over a critical post about the Prime Minister, citing protection of constitutional authorities from disrepute.
3. Overriding Constitutional Metrics: Courts increasingly use emotional impact as a test for speech, rather than constitutional standards like incitement or public disorder. This inverts the design of Article 19.

Judicial Validation of Outrage and Apologies

1. Apologies as Precedent: Courts recommend apologies for lawful speech, treating outrage as justification. This reinforces public anger rather than guarding liberty, setting a precedent where speech must please the majority.
2. Taste and Vulgarity as Legal Tests: In Ranveer Gautam Allahbadia, the focus was on “vulgar” podcast language, not legality. Similarly, Kamal Haasan was told to apologize for calling Kannada a daughter of Tamil, despite no incitement or hate.
3. Scholarly Critique Under Scrutiny: Historian Ali Khan Mahmudabad faced court action for critiquing the optics of using a woman soldier to explain war. A mere claim of hurt sentiments was enough to trigger judicial investigation.

Constitutional Misreadings and Incentivized Outrage

1. Emotion as Legal Harm: Speech that provokes emotions is wrongly equated with legal harm. Article 19(2) allows restrictions only for incitement to violence or disruption, not for annoyance or hurt.
2. Encouraging Offence-Seeking: By policing language and encouraging apologies, courts create incentives for mobs and serial litigants. More outrage invites more litigation, creating a market for offence.
3. Free Speech and the Armed Forces: The Allahabad High Court refused relief to Rahul Gandhi over remarks about the Army. It claimed speech doesn’t include the freedom to “defame” the military, though defamation standards require stricter scrutiny.

Weaponizing Legal Procedures Against Speech

1. Using Legal Tools to Intimidate: Courts often refuse to quash FIRs, insisting police must investigate. But the legal process itself—summons, charges—becomes punishment. Sarcasm and satire are now targeted under sedition-like laws.
2. Selective Resistance by Courts: Occasionally, courts like the Madras High Court have resisted this drift. But such resistance is rare and lacks consistent structural defense of speech.
3. Sedition and Vagueness: Laws like sedition and vague “public order” clauses enable arbitrary restrictions. Courts often uphold them instead of interpreting them narrowly to protect liberty.

Eroding the Spirit of Free Speech and Democracy

1. Freedom as a Test of Strength: Democracy thrives on dissent, not politeness. Bland speech is not liberty. The strength of a republic lies in tolerating discomfort and disagreement.
2. Chilling Effect and Silent Regression: Self-censorship is rising. From YouTubers to professors, fear of legal action silences dissent. The judiciary’s current approach weakens public confidence in constitutional protection.
3. Role of Judges in a Democracy: Judges must defend rights, not curate public sentiment. Free speech needs no apology or approval. The Republic was born from protest, not politeness.

Question for practice:

Examine how Indian courts are redefining the constitutional protection of free speech in the context of public sentiment and judicial sensitivity.