Context

• India's constitutional promise of free speech, enshrined in Article 19(1)(a), was never meant to guarantee comfort, it was designed to empower dissent.
• However, in recent times, this cornerstone of democratic liberty is facing a quiet but disturbing erosion.
• Indian courts, once envisioned as protectors of fundamental rights, increasingly resemble custodians of cultural sentiment, preoccupied with civility over constitutionalism.
• Rather than shielding citizens from state overreach, the judiciary has begun managing speech, prioritising national pride and public sensitivity over the robust defence of individual liberty.

The Distortion of Free Speech Protection by Courts

• The Shift from Liberty to Licensing
  • The judiciary's approach has undergone a subtle but significant transformation: from viewing speech as a right to treating it as a privilege granted under behavioural conditions.
  • This change is evident in cases such as the Allahabad High Court's refusal to quash an FIR against a young man who criticised Prime Minister Narendra Mod
  • Rather than upholding the constitutional principle that criticism of power, even tasteless or provocative, is protected, the court prioritised national emotions and the dignity of public figures.
  • This reversal of roles, where citizens must prove their civility rather than the state proving its restraint, turns the Constitution on its head.
• Outrage as a Legal Standard
  • An alarming pattern emerging from recent judicial conduct is the validation of public outrage as a legitimate basis for legal action.
  • Courts are increasingly advising apologies for lawful speech, encouraging the idea that offensive or unpopular opinions must be tempered to appease collective sentiment.
  • In Kamal Haasan’s case, where he referred to Kannada as a daughter of Tamil, the Karnataka High Court’s suggestion to apologise reflects not legal reasoning but cultural appeasement.
  • Similarly, podcaster Ranveer Allahbadia and academic Ali Khan Mahmudabad were subjected to judicial scrutiny based on subjective norms of modesty and nationalistic pride rather than objective tests of harm or incitement.
  • This precedent is perilous. It gives strength to mobs and serial litigants who weaponize hurt sentiments to silence dissent.
  • When lawful speech is subjected to popularity tests, the space for honest, critical, and often uncomfortable expression shrinks dramatically.
• Misreading the Constitution
  • The core constitutional standard for restricting speech under Article 19(2) is clear: only speech that incites violence, hatred, or threatens public order may be curtailed.
  • Yet, courts are increasingly conflating emotional reaction with legal harm.
  • The mere fact that a statement offends, irritates, or angers certain groups is becoming sufficient grounds for litigation.
  • This is a gross misinterpretation of constitutional safeguards.
  • In defamation cases involving remarks against state institutions like the military or political leaders, courts have displayed a disturbing readiness to side with sentiment over scrutiny.
  • By invoking stringent provisions like Sections 152 and 353(2) of the Bharatiya Nyaya Sanhita for harmless criticism, the judiciary enables the misuse of sedition-like laws to punish satire and sarcasm.
  • Often, the refusal to quash FIRs is couched in procedural language, let the investigation proceed, but this bureaucratic neutrality is anything but passive.
  • The legal process itself becomes the punishment, chilling speech through intimidation rather than conviction.

The Rise of Judicial Sentimentalism

• Indian courts today are inching closer to becoming confessional booths, where remorse substitutes for rights and apologies are offered not for wrongdoing but for the sake of public decorum.
• This judicial sentimentalism is deeply corrosive. It implies that speech must be sanitised before it can be tolerated, that public figures and institutions are too sacred to be criticised, and that dissent must dress in politeness to be legitimate.
• But democracy is not a culture of uniformity; it is a culture of disagreement.
• From YouTubers being censured for jokes to professors being dragged into legal proceedings for tweets, the underlying message to citizens is unmistakable: avoid provocation, say what is agreeable, and always err on the side of self-censorship.

The Way Forward: Reclaiming the Spirit of Article 19

• What India needs is a return to first principles, a robust, principle-centric approach to free speech that does not cave in to the tyranny of sentiment.
• Courts must recognise that the test for legality is not the depth of offense but the potential for real harm.
• Apologies, if ever necessary, should be voluntary acts of conscience, not judicial directives masquerading as legal remedies.
• The doctrine of the chilling effect well-established in American and European jurisprudence, must find firmer footing in Indian courts.
• The threat is not only to high-profile commentators or celebrities but to every citizen who dares to question, critique, or rebel through words. Judicial deference to sentiment fosters conformity, not confidence; harmony, not democracy.

Conclusion

• Judges are not the guardians of national emotions; they are the stewards of constitutional freedoms.
• By prioritising institutional dignity over individual liberty, Indian courts are drifting dangerously from their democratic mandate.
• Free speech is not a matter of etiquette; it is a matter of right. And that right must be protected not just in principle but in practice, especially when it is uncomfortable, unpopular, or unsettling.
• In the words of B.R. Ambedkar, the world owes much to rebels who would dare to argue in the face of the pontiff and insist that he is not infallible.