‘Offending Sentiments’: A Growing Judicial Trend That Threatens Free Speech

In recent years, Indian courts appear to be nurturing a quiet but troubling shift in the country's free speech jurisprudence: the rise of a sentiment-based censorship standard. While the Constitution guarantees citizens the right to express themselves, judges have increasingly acted to curb lawful speech—not for breaching any law—but simply because someone claimed their sentiments were hurt. This trend has no basis in the text of the Constitution, yet it is slowly being etched into judicial reasoning.

This evolving ‘sentiment standard’ functions like an invisible disclaimer: your speech is protected—as long as it doesn’t offend anyone. It’s not law, but it’s fast becoming a de facto limitation on Article 19(1)(a). Recent judicial pronouncements from 2023 to 2025 reveal a drift away from robust constitutional protections for speech toward a climate where feelings—not facts—can define legality.

The Constitution Does Not Ban ‘Offensive’ Speech—But the Courts Might

India’s constitutional framework, through Article 19(1)(a), promises all citizens the right to free speech. The only valid restrictions are those laid out in Article 19(2): threats to national security, public order, decency, contempt of court, defamation, and similar narrowly defined categories. Notably, “hurt sentiments” are not one of them. The framers of the Constitution, and early judgments by the Supreme Court, acknowledged that in a diverse democracy, offense is inevitable and not a legitimate reason to silence speech.

However, courts today are increasingly prioritizing emotional offense over legal clarity. Consider the Karnataka High Court’s reaction to actor-politician Kamal Haasan’s remark that Kannada had originated from Tamil. Though this was a historical opinion and posed no threat to public order, the court publicly rebuked Haasan, stating, “You may be Kamal Haasan or anybody, you cannot hurt the sentiments of the masses.”

Instead of simply ensuring the safe release of Haasan’s film “Thug Life” amid protests, the court effectively upheld the mob's demand for an apology. It drew parallels to a 1950 incident involving Rajagopalachari and suggested that apology was necessary, even though Haasan had broken no law. The message was unmistakable: speech is lawful only until it causes discomfort.

From Legal Standards to Emotional Policing

This trend isn’t isolated. The courts have shown a repeated tendency to treat the subjective offense of the listener as grounds to curtail lawful speech.

• In the Ali Khan Mahmudabad case, the Ashoka University professor was jailed for anti-war social media posts—even though they praised the Indian Army. The Supreme Court granted bail, but only after silencing him with a gag order and preaching about polite, patriotic speech. The implied message: rights exist, but only for the respectful.

• In June 2025, a student was denied relief by the Allahabad High Court for posting sarcastic comments about Prime Minister Modi after a ceasefire with Pakistan. Though the post reflected political anger, the court refused to quash FIRs filed under the Bharatiya Nyaya Sanhita (BNS), citing that disrespect to national leaders was intolerable—even if no law had been clearly broken.

These instances underscore how the bar for “public disorder” has dropped. Instead of requiring concrete threats or actual violence, the mere anticipation of emotional unrest is enough to trigger judicial intervention—often against the speaker, not the instigators of unrest.

The Rise of the ‘Heckler’s Veto’

This pattern dangerously resembles the heckler’s veto—a phenomenon in free speech theory where the loudest or most easily offended group ends up dictating what can be said. In such situations, the state’s response is not to manage the disruptors but to mute the speaker. This, in effect, empowers the offended to act as censors.

Judicial actions now often validate this approach. The offended mob is not punished—the person expressing dissent is. This reversal of constitutional logic goes against long-standing Supreme Court rulings like Shreya Singhal v. Union of India (2015) and Bhobishyoter Bhoot (2019), where the Court upheld that “offensive speech is not illegal speech” and that the government must protect the speaker from mob threats, not yield to them.

The Chilling Effect is Real—and Growing

The most worrying outcome of this sentiment-centric censorship is the chilling effect it casts on public discourse. Writers, comedians, academics, and journalists increasingly self-censor—not out of fear of violating the law, but because they risk becoming legal targets if someone claims to be offended.

Previously, courts were proactive in discouraging this culture of harassment. For instance, in S. Khushboo v. Kanniammal (2010), the Supreme Court quashed over 20 obscenity cases filed against a

Tamil actress, recognizing the weaponization of offense. Today, that judicial clarity has eroded. Even the apex court, as seen in its 2016 ruling upholding criminal defamation, appears unbothered by the argument that such laws chill speech. It dismissed the concern as speculative and unsupported by evidence.

The Slide into Constitutional Backsliding

The current trajectory signals a backslide from the Constitution’s vision. Free speech in a democracy must encompass the right to criticize, provoke, and challenge. Whether it’s the angry protester, the irreverent comedian, or the controversial academic, their right to express discomforting truths must be protected—not moderated.

B.R. Ambedkar and the framers of the Constitution anticipated that democracy would sometimes mean tolerating speech that stings. The role of the judiciary, they believed, was to safeguard rights—not comfort. Yet today’s courts seem more inclined to act as arbiters of civility and guardians of public emotion.

A Call for Course Correction

India’s democracy is inherently plural and noisy. In such a landscape, offense is unavoidable. But hurt sentiments—real or manufactured—cannot be allowed to suppress constitutionally protected speech. The judiciary must remember that the appropriate response to bad speech is more speech, not judicial restraint or punishment.

Courts must reaffirm that Article 19(1)(a) is not conditional on politeness, tone, or popularity. Unless speech incites violence or threatens public safety as per Article 19(2), it must be protected—even if it offends.

If judges continue to reward the easily offended with legal victories, it won’t be the unruly mob that suffers. It will be Indian democracy—and its commitment to free, fearless discourse.