Judicial Sensitivity to Sentiments: A Threat to Free Speech and Constitutional Morality

Relevance: GS2(Role of Judiciary)

Context

The Indian Constitution, through Article 19(1)(a), guarantees freedom of speech and expression as a cornerstone of democratic citizenship. This freedom is not merely a personal liberty but a vital democratic right that allows critique, dissent, and discourse.

However, recent judicial trends reflect a concerning shift — from protecting free speech to managing and moderating it, particularly in cases involving sentiment, public outrage, or the so-called dignity of institutions.

Senior Advocate Sanjay Hegde’s recent commentary examines this critical drift. The judiciary, once the counter-majoritarian protector of fundamental rights, is now seen yielding to public sentiment and institutional sensitivities, at the cost of constitutional freedoms.

Key Issues Raised

1. Speech as a Risk, Not a Right

Several courts have treated provocative or critical speech as offensive and worthy of penal scrutiny, even if it does not incite violence or hatred, which is the actual constitutional threshold under Article 19(2).

Examples:

A 24-year-old man criticized the Prime Minister on social media — FIR not quashed by the Allahabad High Court.
Actor Kamal Haasan was asked to apologise for remarks on linguistic identity — even though no legal harm was established.
Podcasters and academics have faced judicial scrutiny merely for hurting sentiments or challenging dominant narratives.

2. Encouraging Apologies Undermines Liberty

Courts advising individuals to apologize for lawful expression shifts focus from legality to popularity. This promotes a “market for offence”, emboldening fringe groups and litigants to weaponize emotion.

3. The Process Becomes the Punishment

Even if no conviction occurs, prolonged investigations, summons, and FIRs chill free expression. This creates a culture of fear and self-censorship, especially among activists, artists, and independent thinkers.

4. Judiciary as a Cultural Arbiter

Instead of acting as guardians of the Constitution, some courts are functioning as moral supervisors — enforcing vague standards of civility, modesty, and nationalism. This erodes constitutional confidence and shifts power from the citizen to institutions.

Conclusion

Sanjay Hegde’s article is not just a critique of isolated judicial decisions but a warning about a systemic shift: when the judiciary prioritizes emotion over principle, harmony over liberty, and decorum over dissent, it risks undermining the very constitutional values it is sworn to protect.

Democracy thrives on disagreement, and free speech includes the right to offend, challenge, and provoke. Courts must not become instruments of emotional appeasement or cultural control. Their role is to defend rights, not manage reputations.