Judicial sensitivity to sentiments is a sign of regression

The Hindu

4 days ago

Indian courts today are not defending free speech. They are managing it. And in this curious inversion of constitutional values, we are witnessing a quiet retreat from the principle that animated Article 19(1)(a) of the Constitution: that speech, even provocative, offensive, or unsettling, is the citizen's shield against tyranny — not its tool.
Once envisioned as the counter-majoritarian bulwark of our democracy, the judiciary now increasingly resembles an arbiter of decorum, demanding apologies and deference in the name of civility, sensitivity, or national pride. But when courts focus on what was said rather than why the right to say it must be protected, the Republic is left vulnerable to a new tyranny: that of sentiment, outrage, and the lowest tolerance denominator.
Let us begin with a chillingly ordinary example: a social media post by a 24-year-old man criticising Prime Minister Narendra Modi. after the ceasefire with Pakistan following Operation Sindoor in May 2025. Was this tasteless? Perhaps. But taste is not a constitutional metric. The Allahabad High Court thought otherwise. In rejecting the plea to quash the first information report (FIR), the Bench declared that 'emotions cannot be permitted to overflow to an extent that constitutional authorities of the country are dragged into disrepute'. That is a remarkable formulation. It subtly inverts the constitutional design: the citizen is no longer the source of power holding the state to account, but a child to be reprimanded for speaking too freely.
A validation of outrage
Instead of interpreting Article 19(1)(a) as a liberty that limits state power, courts have begun treating it as a licence that comes with behavioural conditions — conditions defined not by law but by the perceived dignity of public figures and institutions. Take the Kamal Haasan controversy in connection with his film, Thug Life. The actor made a remark about Kannada being a daughter of Tamil. The Karnataka High Court responded not by evaluating whether the actor's statement met the threshold of incitement, defamation, or hate, but by advising him to apologise to the 'sentiments of the masses'. This advice is corrosive. When courts suggest apologies for lawful speech, they set a precedent that expression must pass a popularity test. They validate the very outrage that threatens free speech, rather than shielding expression from it. An apology does not close the loop but only widens it, inviting further claims of offence. In Ranveer Gautam Allahabadia vs Union Of India, the 'digital content creator and podcaster' was confronted with judicial comments bordering on cultural supervision for his use of explicit language in a podcast. The court directed the Union to clarify whether such 'vulgar' language fell outside constitutional protection. Here again, the concern was not whether the speech incited harm, but on whether it offended prevailing norms of taste and modesty — a dangerously subjective threshold. Similarly, historian and a professor, Ali Khan Mahmudabad, was dragged into proceedings after sharing critical views on the optics of India using a woman soldier to explain its war situation with Pakistan. The argument was that his comments hurt sentiments. That it even reached court underscores the problem: invoking hurt feelings is now sufficient to invite judicial scrutiny of constitutionally protected speech. The professor's scholarly critique became a matter for judicial assessment and a special investigation to assess whether there was any dog whistle intent that played on the fragility of the audience.
A misreading
Two disturbing patterns emerge from these cases.
First, the judiciary is increasingly equating speech that provokes emotional reactions with legally actionable harm. This misreads the Constitution and the rationale of a democracy. The test for restricting speech under Article 19(2) is not whether it angers, irritates, or offends but whether it incites violence, hatred or disrupts public order. Second, by encouraging apologies and moral policing of language, courts create a perverse incentive. The more outrage a comment generates, the more likely it is to be litigated. This does not protect society. It emboldens mobs and serial litigants. It creates a market for offence.
This shift is starkly evident in cases that involve the armed forces. In a recent judgment, the Allahabad High Court denied the Leader of the Opposition, Rahul Gandhi, relief in a defamation case on his alleged derogatory remarks about the Indian Army . The High Court said that the freedom of speech does not include the freedom to 'defame' the military. But defamation, as a legal standard, must be carefully assessed particularly when invoked by or on behalf of state institutions by busy-bodies.
Likewise, in a previous first information report against a man using the word 'coward' to describe the Prime Minister after the recent military stand-down, the court saw no issue with Sections 152 and 353(2) of the Bharatiya Nyaya Sanhita being invoked — laws meant for threats to sovereignty and public mischief . These laws, meant for sedition-like scenarios, are being contorted to punish sarcasm and satire. It is telling that courts will routinely deny the quashing of FIRs in such cases, claiming that it is too early to interfere and that police investigations must run their course. But this abdication is neither neutral nor passive. For the citizen facing criminal prosecution, the process itself is the punishment. The system does not need a conviction to chill speech. A summons and a charge sheet do the job. The Madras High Court has occasionally resisted this drift. But this was more about narrative correction than structural protection of speech.
Courts in India must return to a principle-centric model of speech protection. Instead of obsessing over what was said, they must ask whether the speaker's right was violated, and not someone else's sentiment. Apologies should not be judicial recommendations. They should be individual choices. Otherwise, courts become confessional booths where speech is absolved not by legal reasoning but by remorse. And remorse demanded is remorse devalued — it empowers the outraged, not the rational.
The signal to the citizen
Moreover, as long as laws such as sedition or the ever-morphing public order clauses remain vague, courts must lean toward liberty. The doctrine of 'chilling effect' that is robust in American and European jurisprudence, has been acknowledged in India's courts but seldom enforced with spine. This is not just about high-profile speech or celebrities. It is about the slow attrition of constitutional confidence. When a YouTuber is told to bleep a joke, or a professor is dragged to court for a tweet, or a film-maker is told to grovel for linguistic pride the signal to the ordinary citizen is clear: express only what is safe, bland and agreeable.
But democracies are not built on agreeable speech. They thrive on disagreement — noisy, rude, even reckless at times. The test of a society's strength is not how well it tolerates politeness, but how it handles provocation. Free speech is not just about giving offence, but about withstanding it. If India is to preserve its democratic soul, it must restore the dignity of dissent. It must not demand the dignity of institutions at the cost of liberty.
Judges are the guardians of the Constitution, and not the curators of culture. They must protect the right to speak and not the comfort of the listener. Because when speech is chilled in courtrooms, freedom dies not with a bang, but with a sigh of deference. The new age of judicial sensitivity to sentiments is not a sign of progress. It is a sign of regression. It confuses harmony with homogeneity, and respect with restraint. Apologies should never be a legal strategy. And speech should not need blessings to be legitimate. Let our courts not forget that the Republic was not born from politeness but from protest. The Constitution came from the pen of a Dr. B.R. Ambedkar, who also wrote, '…the world owes much to rebels who would dare to argue in the face of the pontiff and insist that he is not infallible'.
Sanjay Hegde is a Senior Advocate of the Supreme Court of India