Former Supreme Court judge Justice Abhay S Oka has emphasised that constitutional courts cannot assume the role of arbiters of what protesters or dissenters ought to say, stressing that protection of free speech is an essential judicial obligation in a constitutional democracy.
Justice Oka was speaking at the inaugural Advocate Haroon Solkar Memorial Lecture held at KC College in Mumbai on August 1. The event was organised by Lawyers’ Alliance for Justice and also witnessed the conferment of the “Juridical Excellence Award 2026” on Senior Advocate Rafique Dada.
Addressing the issue of dissent and peaceful protest, Justice Oka cautioned that continued criminalisation of dissent by the State could pose a serious threat to democratic governance. He said constitutional courts must intervene where criminal proceedings are initiated against citizens for exercising their fundamental rights, including freedom of speech and expression.
Justice Oka underscored that a court may disagree with or dislike the views expressed by a petitioner, but that cannot become a ground for judicially prescribing the manner in which the person should have spoken.
He stressed that the judicial inquiry in such cases should principally concern whether the alleged conduct constitutes an offence and whether the prosecution infringes the citizen’s fundamental right to freedom of speech and expression. Where such a violation is established, constitutional courts are duty-bound to grant appropriate relief, he said.
The former judge further warned against the excessive use of prohibitory orders to prevent peaceful demonstrations. Referring to an instance in Karnataka involving the invocation of Section 144 of the Code of Criminal Procedure to prevent an anti-Citizenship Amendment Act demonstration at Bengaluru’s Freedom Park, Justice Oka said lawful protests cannot be interdicted merely because the authorities disagree with their cause.
He maintained that where citizens seek to conduct a peaceful demonstration within the constitutional framework and without committing an offence, the State should facilitate the exercise of that right rather than suppress it.
Justice Oka also drew upon the Constituent Assembly debates to underline the constitutional significance of allowing citizens to voice their grievances. According to him, the framers of the Constitution did not contemplate a democratic system in which citizens’ demands could simply be disregarded without allowing them avenues to express dissent.
He observed that the ability of citizens to peacefully communicate their disagreement with those in power is intrinsic to a functioning democracy. Curtailing such avenues, he cautioned, would undermine the very foundations of democratic participation.
The former Supreme Court judge also addressed the issue of criminal cases arising from comments made by citizens, including statements published on social media. He said individuals approaching constitutional courts after being prosecuted for their speech should receive judicial protection where the proceedings amount to an impermissible infringement of fundamental rights.
Justice Oka urged the younger generation to read and understand the Constitution, particularly the guarantees contained in Article 19. He reiterated that peaceful protest is constitutionally protected, subject to the limitations prescribed by law.
He also invoked the words attributed to Irish statesman and writer Sir Thomas More to underscore that citizens in a democracy cannot be expected to confine themselves to expressing only views acceptable to those in authority.
In his concluding remarks, Justice Oka stressed that the survival of democracy depends upon the effective protection of constitutional freedoms, including the rights guaranteed under Articles 19(1)(a) and 21 of the Constitution.
He cautioned that constitutional institutions must remain vigilant in protecting these guarantees, particularly when dissenting voices face criminal prosecution or restrictions, as the failure to safeguard fundamental freedoms risks weakening the constitutional democracy itself.
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