Jain, Anmol (2025) Judicial paternalism and free speech in India. verfassungsblog.
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Abstract
In one of my contributions to Verfassungsblog last year, I analyzed the decision of the Indian Supreme Court in Nipun Malhotra v. Sony Pictures Film India Pvt Ltd to show how, among other things, the Court tends to ‘assume the seat of a social reformer’ by adopting a ‘guidance-laden approach’ while deciding free speech cases, which results in ‘creeping paternalism’. Two decisions of the Court, issued in late February, are a testament to how this approach is deeply ingrained institutionally (or as Gautam Bhatia will call it, it is a part of the ‘constitutional commonsense’), wherein, despite being a polyvocal Court, different judges tend to approach free speech matters in the same fashion. The two cases pertain to the speech acts of two different individuals—a podcaster and a legislator of the Legislative Council of the State of Bihar—and in both cases, the Court chose to reprimand the individuals for their ‘indecent’ and ‘unparliamentary conduct’ and also sanctioned punishments upon them, without any a priori determination of whether their speech acts, in any manner, violated the limits of the right to free speech as guaranteed under the Indian Constitution. The reprimand and the sanction, I argue, emerged from the Court’s false belief that it is tasked to school the citizens on the appropriate and correct ways of using their speech rights. In the paragraphs to follow, I will briefly discuss the factual backdrop of the two cases before proceeding to the general and free speech-related implications of the Court’s approach.
Item Type: | Article in Newspapers and Magazine |
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Subjects: | Social Sciences and humanities > Social Sciences > Social Sciences (General) Social Sciences and humanities > Social Sciences > Law and Legal Studies |
JGU School/Centre: | Jindal Global Law School |
Depositing User: | Dharmveer Modi |
Date Deposited: | 05 Mar 2025 11:10 |
Last Modified: | 05 Mar 2025 11:10 |
Official URL: | https://doi.org/10.59704/025d94afb5032746 |
URI: | https://pure.jgu.edu.in/id/eprint/9208 |
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