Justice Abhay Oka: Courts Must Protect Free Speech, Not Silence Dissent

August 4, 2026: Calling free speech a cornerstone of constitutional democracy, former Supreme Court judge Justice Abhay S. Oka said constitutional courts must quash criminal cases aimed at silencing dissent. He made the remarks on August 1 while delivering the inaugural Advocate Haroon Solkar Memorial Lecture in Mumbai on the theme 'Article 19(1)(a) and Article 21: Followed or Forgotten?'.

Justice Oka said courts should focus solely on whether an offence has actually been committed and whether a person's fundamental rights have been violated. He emphasised that it is not the role of judges to "preach" or "teach" citizens what they should or should not say. If a court finds that criminal proceedings have been initiated to curb lawful free expression, it is duty-bound to grant relief, he said.

Stressing the importance of freedom of speech in a constitutional democracy, Justice Oka said courts must remain at the forefront of protecting fundamental rights rather than allowing them to be curtailed. He described it as the judiciary's "bounden duty" to ensure that constitutional values are upheld and that freedom of expression is protected rather than stifled.

Referring to the right to peaceful protest, Justice Oka said citizens must be allowed to express their grievances through lawful demonstrations. He noted that the courts should not concern themselves with the subject of a peaceful protest but should instead ensure that constitutional rights are respected. Denying permission for lawful protests based on disagreement with their cause, he suggested, is inconsistent with the principles of democracy.

Justice Oka also expressed concern over the increasing use of criminal provisions to prosecute individuals merely because their opinions are unpopular or critical of those in authority. He pointed to the casual invocation of laws relating to promoting enmity and public order against comedians and other individuals for expressing views that some people dislike. Such actions, he said, often reflect a poor understanding of constitutional protections for free speech, and courts must faithfully apply the legal tests laid down by the Supreme Court.

He further observed that Article 51A of the Constitution, which outlines the fundamental duties of citizens, also places a corresponding responsibility on the State and its institutions to uphold constitutional ideals. These include democracy, secularism, liberty of thought and expression, and respect for fundamental rights. Justice Oka said governments have a duty to consider citizens' views and representations, even if they ultimately choose not to accept them.

Warning that growing intolerance poses a threat to democratic values, Justice Oka said freedom of speech and expression can survive only if constitutional institutions remain vigilant in protecting it. In a democracy, he added, citizens must be able to voice differing opinions without fear of criminal prosecution, while courts must continue to serve as guardians of the rights guaranteed by the Constitution.

Courtesy: LiveLaw