'Offending Sentiments', A Developing Ground Limiting Free Speech

It is now an “invisible asterisk” hovering over free speech – allowed only if it offends no sentiments and remains polite and neutral. This implicit veto by the easily offended is steadily diluting a once-robust freedom. Judicial trends from 2023–2025 reflect this regression in India's constitutional commitment to speech.

Offense Is Not a Constitutional Ground – But It's Becoming One

Under Article 19(1)(a) of the Constitution, all citizens have the right to freedom of speech and expression, subject only to the narrow restrictions listed in Article 19(2). Those restrictions – security of the State, public order, decency or morality, contempt of court, defamation, incitement to an offense, etc. – notably do not include “hurt sentiments.” The framers understood (as did the Supreme Court in its early decades) that in a plural democracy, merely causing offense or hurting feelings is not a sufficient reason to silence speech.

The Karnataka High Court was dealing with veteran actor-politician Kamal Haasan, who had ruffled feathers with a comment about the Kannada language. At a film event, Haasan casually remarked that “Kannada was born out of Tamil,” sparking outrage among linguistic chauvinists in Karnataka. There were protests, boycott calls and demands for an apology.

Haasan approached the High Court seeking protection for the release of his film “Thug Life” in Karnataka, as pro-Kannada groups threatened to block it. Instead of simply ensuring the film could screen safely, the High Court berated Haasan for his remark. “You may be Kamal Haasan or anybody, you cannot hurt the sentiments of the masses,” the judge reprimanded him.

The court noted that people hold language as an identity and “no citizen has the right to hurt the collective sentiments” of the public. The Court even harked back to a historical incident: in 1950, statesman C. Rajagopalachari had made a similar statement about Kannada and later apologized – “When persons like Rajagopalacharari can apologise why can't Kamal Haasan,” the judge asked.

The High Court's focus was not on any law that Haasan had broken – indeed, stating a debatable opinion about linguistic history is not a crime. Yet the court's emphasis was on the fact of offense caused and the absence of an apology.

By effectively endorsing the demand that Haasan express contrition as a condition for peace, the judge made himself an arbiter of cultural sentiment. The message to Haasan was that his speech, though lawful, was unacceptable until it placated the offended populace. In this, the court handed the “hecklers” a victory: those who threatened unrest over his words were rewarded by the court's stance that the onus was on the speaker to mollify them. As the High Court put it, “What has happened because of [the statement] is unrest, disharmony… People of Karnataka only asked for an apology. Now you come here seeking protection.” Rather than firmly uphold Haasan's right to free expression and direct the state to maintain order, the judge chose to mildly scold the mob but strongly scold the speaker. The constitutional principle – that “public disorder” must be addressed by restraining lawbreakers, not the speaker – was turned on its head.

As recently as January 2023, the Supreme Court reaffirmed this principle, declaring that free speech cannot be curtailed on any grounds outside Article 19(2). That case – Kaushal Kishor v. State of UP, 2023 INSC 4, involving a minister's controversial remarks – ostensibly cemented the rule that no new heads of restriction can be judicially added to the exhaustive list in the Constitution.

Yet even as this doctrine is repeated in theory, the reality in courtrooms is diverging. India's higher judiciary has begun to weave “sentiments” into the analysis of what speech deserves protection. Over the past decade, alongside strong pro-free speech judgments, a new sensitivity to public sentiment has taken hold.

The Supreme Court's landmark decisions like Shreya Singhal v. Union of India [2015] 5 S.C.R. 963 – which struck down the draconian IT Act Section 66A and affirmed that expression cannot be punished just for being “grossly offensive” or annoying – reflect the classical view that the right to offend, shock or disturb is part of free speech.

In 2019, when a satirical film Bhobishyoter Bhoot was effectively banned due to anticipated protests, the Supreme Court thundered that “free speech cannot be gagged for the fear of the mob,” ordering the West Bengal government to ensure the film's release. In these moments, courts acted as neutral guardians of liberty, telling authorities that the correct response to threatened disorder is to protect the speaker, not muzzle them.

What has changed now is an increasing willingness of judges to pivot away from those principles. Instead of asking “Does this speech fall within a permitted restriction of law?”, the question subtly shifts to “How rudely was it said, and who is aggrieved?”.

A multitude of FIRs and complaints against writers, artists and critics for “hurting religious feelings” or “insulting” revered figures are not only being entertained but often allowed to run their course. From the bench, homilies about using “respectful” and “neutral” language have begun to punctuate hearings. In effect, an unwritten civility code is creeping into free speech jurisprudence, tilting the balance towards those who claim offense.

Consider the Ali Khan Mahmudabad case, a political science professor at Ashoka University, was arrested and jailed for two social media posts that were critical of warmongering in the wake of India's military operation “Operation Sindoor” against Pakistan. His posts were anti-war and even included praise for the Indian Army (albeit laced with irony) – hardly incitement or any other recognized offense. Yet the reaction was swift and ferocious: multiple FIRs were filed around the country.

After he spent days behind bars with no bail, the Supreme Court finally heard his plea and granted interim bail – but with extraordinary strings attached. It formed an SIT to examine his posts and restrained him from making any public comments on the case – a judicial gag order on a citizen not convicted of anything. The Court stressed that free speech comes with “responsibility” and a “duty to the nation,” advising him to speak in “polite… neutral” terms. In effect, it upheld his right with one hand, while warning him with the other.

The irony did not go unnoticed. A whole new list of unstated qualifiers now seems appended to Article 19(1)(a): speak freely, so long as you are polite, respectful, inoffensive, and easily understood. The chilling effect of such judicial moralizing is hard to miss. If even the Supreme Court signals that sharp or caustic speech is unwelcome, an academic like Ali Khan Mahmudabad will think twice before speaking—not because the law forbids it, but because the Constitution's guardians have added an unwritten asterisk.

In June 2025, the Allahabad High Court refused to quash an FIR against a 24-year-old student for a Facebook post critical of Prime Minister Narendra Modi. The post came after a brief India-Pakistan military skirmish ended in a ceasefire on the PM's orders. The young petitioner had allegedly used some harsh and derogatory terms for the Prime Minister – calling him a coward, insinuating “Narendra 'Surrender',” and the like. He was promptly booked under a litany of offenses – including several provisions of the newly enacted Bharatiya Nyaya Sanhita (BNS), 2023 (which has replaced the IPC) for insulting, promoting enmity, and causing public mischief.

In court, his lawyer argued that the posts were an emotional outburst in the heat of the moment, and that however intemperate, they were political criticism. The High Court was unmoved. It dismissed his plea and, in doing so, delivered a pronouncement that encapsulates the new judicial attitude. “A post written by the petitioner against the Prime Minister… carries scurrilous language against the head of the government. Emotions cannot be permitted to overflow to an extent that constitutional authorities of the country are dragged into disrepute by… disrespectful words,”

The judges thus elevated “respect for the nation's leaders” to a threshold that speech may not cross. Public emotional injury – here, patriotic sentiment offended by an insult to the PM – was treated as a valid reason to let a prosecution proceed. By privileging patriotic sentiment over the fundamental right of the critic, the court blessed criminal sanction for even sharply worded political dissent.

These examples underscore a common theme. Whether the context is religion, culture, language, or national pride, courts are increasingly willing to insert themselves as referees of acceptable speech based on perceived offense. Often, this is couched in the language of preventing “public disorder” – an established legitimate aim – but the bar for what counts as a danger to public order has dropped perilously low.

We now see judicial action on the mere assertion that sentiments have been hurt, without evidence of any clear and present danger. The protective instinct of the court is triggered not by unlawful actions of a speaker, but by the emotional reactions of certain listeners.

This comes perilously close to a “heckler's veto.” In free speech theory, a heckler's veto is when authorities suppress speech because an audience threatens unrest – effectively giving the most easily provoked listeners the power to shut down discourse. The recent judicial trend legitimizes a mild form of this veto: if enough people claim they are offended or might create a ruckus, courts lean toward silencing or sanctioning the speaker rather than the crowd.

The Chilling Effect on Speech

The rise of sentiment as a de facto censorship tool has dire implications. When judges signal that offensive = unlawful or at least unprotected, it doesn't just punish the speaker at hand – it sends a message to everyone else to self-censor or face consequences. Lawyers often talk about the “chilling effect” – the idea that fear of legal trouble deters people from exercising their rights. Indian courts themselves have acknowledged this concept in the past. In fact, many of the progressive judgments we celebrate – like Shreya Singhal – explicitly aimed to eliminate the chilling effect of vague, overbroad laws that could be used to harass citizens for online speech.

Sadly, the chilling effect is back, and the courts are contributing to it. Observers note that today a writer or artist must worry not only about the text of the law but about whose sentiments might be bruised. In theory, the judiciary should curb such abuse – indeed, in S. Khushboo v. Kanniammal (2010), the Supreme Court quashed 23 identical obscenity cases against a Tamil actress, calling the barrage of private complaints an abuse of process. But in the current climate, courts have been slow to grant relief from these orchestrated legal onslaughts. A journalist or comedian might find herself fighting cases on the same issue in courts across India simply because anyone claiming to be offended can drag the speaker to their local court.

Even the Supreme Court has shown a startling indifference to chilling effects in recent years. A notable example is its 2016 judgment upholding criminal defamation (Sections 499/500 of the IPC). The Supreme Court, however, summarily dismissed the “chilling effect” argument as entirely hypothetical, stating there was no evidence that the law deterred free speech. By waving away the well-documented phenomenon of self-censorship, the Court effectively signaled that it was not overly concerned if the powerful weaponize laws to silence inconvenient speech, so long as those laws could be justified under some official rubric.

A Constitutional Regression

What we are witnessing is, in no uncertain terms, a constitutional regression. The Supreme Court itself once eloquently observed that the blanket of freedom in a democracy must necessarily accommodate and even protect the dissenter, the iconoclast, the rude jester, and the angry young man. Free speech, by design, includes speech that may “offend, shock or disturb” the majority.

The Constitution's framers, like B.R. Ambedkar, were acutely aware that freedom of thought and expression are the bedrock of democracy, even if that means tolerating some social discomfort. Judges are supposed to be guardians of the Constitution, not curators of culture; their role is to protect the right to speak, not the comfort of the offended. The Republic must remember that justice lies in upholding speech, not managing sentiment.

India is a cacophonous democracy where hurt sentiments are inevitable. The answer to speech that offends is more speech, not the heavy hand of state or judicial suppression. Turning courts into arenas for wounded feelings empowers offense as political strategy. If judges continue down this path, the thin-skinned will wield a veto over public discourse.

The judiciary must return to first principles, upholding free speech even when it offends, as long as it causes no real harm. Public order means addressing threats, not sanitizing discourse. The current culture of offense is sustained by official cues but can be dismantled by judicial clarity. Free speech must not bend to sentiment or majoritarian whims—it demands steadfast constitutional fidelity.

Views are personal.