In recent years, judicial decisions in India have increasingly reflected a sensitivity to societal sentiments and moral outrage, particularly in cases involving freedom of speech and expression under Article 19(1)(a) of the Constitution. Prioritization of emotional hurt over constitutionally protected freedoms marks a troubling departure from the judiciary’s core role as the guardian of fundamental rights.
Significance of an Effective Judiciary:
- An independent and constitutionally grounded judiciary is a pillar of democratic governance.
- It serves a counter-majoritarian function, protecting individual liberties even against popular will.
- By interpreting laws in the light of constitutional morality, courts uphold civil liberties, ensure accountability, and prevent the misuse of state power.
Issues with Current Judicial Trends:
1. Erosion of Free Speech Protections: Recent judgments indicate a shift from defending provocative and critical speech to enforcing civility and patriotic correctness. India ranked 161 out of 180 in the 2024 World Press Freedom Index (Reporters Without Borders), indicating a shrinking space for free expression.
- For Example, In several instances, comedians, journalists, and authors have faced FIRs and legal sanctions for satire or dissenting views — a trend that has a chilling effect on public discourse.
2. Misreading of Constitutional Design: The judiciary has, at times, conflated hurt sentiments with legal injury, resulting in judicially mandated apologies and bans.
- For Example: In the case involving stand-up comedian Munawar Faruqui, legal action was taken based on anticipated offense rather than actual legal transgression.
3. Subjective Standards Replacing Legal Benchmarks: Use of ambiguous terms such as “vulgar” or “offensive” lacks definitional clarity and invites arbitrary decisions.
- For Example: Films, artworks, and literature are frequently censored or banned based on vague moral or cultural justifications.
4. Inconsistent Judicial Precedents: Courts have shown inconsistency in upholding free speech, sometimes granting bail to dissenters and at other times validating restrictions without solid legal reasoning. This undermines legal predictability and the rule of law.
Implications:
For Democracy:
- Weakens the counter-majoritarian role of the judiciary.
- Encourages mob veto, where outrage becomes a tool to silence dissent.
- Results in self-censorship among media, academia, and civil society.
For Governance:
- Risks turning the judiciary into an agent of repression rather than a protector of rights.
- Reduces public trust in judicial independence and objectivity.
For Civil Society:
- Shrinks space for dissent, satire, and innovation.
- Promotes moral policing and societal regression.
Measures Needed:
- Reaffirm Rights-Based Jurisprudence: Courts must return to objective constitutional interpretation rather than emotional or cultural sentiment.
- Strengthen Article 19(1)(a): Recognize that free speech includes provocative, dissenting, and unpopular expressions.
- Judicial Training and Sensitization: Equip judges with tools to interpret speech-related cases in line with global standards of freedom and expression.
- Disallow Judicially Mandated Apologies: Apologies should not be coercive; they must reflect genuine remorse, not legal compulsion.
- Set Clear Benchmarks for Restrictions (Article 19(2)): Restrictions should be based on clear, objective standards—such as incitement to violence or defamation—not vague notions of sentiment or decorum.
Conclusion:
The judiciary’s increasing deference to hurt sentiments over constitutional principles risks transforming legal institutions into enforcers of moral conformity rather than defenders of liberty. In a diverse democracy like India, freedom of speech must be upheld not in its agreeable forms, but in its ability to provoke, challenge, and reform.
‘+1’ Value addition:
- Prayagraj social media case: A student was reprimanded for criticizing the PM over the Pakistan ceasefire.
- The Kerala film incident (Thugs of Hindustan): A court considered emotional hurt rather than constitutional legality.
- Historian Ali Khan Mahmudabad’s case: Prosecuted for comments on India-Pakistan relations due to public sentiments.
- Rahul Gandhi defamation case: Shows how public officials and institutions are shielded under vague legal standards.
- India ranked 161 out of 180 in the 2024 World Press Freedom Index (Reporters Without Borders), indicating a shrinking space for free expression.
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