Judicial overreach is choking India’s democratic spirit

THE idea of a question-free democracy is untenable and deeply dangerous in multiple ways. At the heart of any democratic society lies the freedom to question, dissent and demand accountability from those in power. Governments that treat questions as threats and criticism as sedition erode the very foundation of democratic life. A democracy without scrutiny turns slowly, but surely, into authoritarianism, where fear replaces freedom. It begins to reward conformity and punish conviction and creativity. It breeds a stale culture of obedience.

Let us not forget, a democratic culture is not only essential for politics and governance but also for industry and commerce, education and research, arts and culture, and just about everything humans do. When people feel stifled, they cannot create anything of lasting value. It is for a reason that participation, decentralisation, and risk-taking are considered central to innovation and value-creation in all spheres of life.

Similarly, the strength of a nation lies not in the silence of its people but in their active participation in shaping its future through open dialogue and rigorous questioning.

Attempts to delegitimise questioning, whether by branding critics as “anti-national" or portraying dissenters as enemies of the state, are signs of creeping authoritarianism. If democracy is to remain meaningful, it must remain noisy, argumentative and uncomfortable for those in power.

A democracy that cannot tolerate questions will eventually forget how to answer them. That is a loss no free society can afford.

Courts must guard freedom, not ration it

The problem becomes acute as the judiciary steps in to shield the government from criticism and uncomfortable questions. In view of the recent observations made by the Bombay High Court as well as by a judge of the Supreme Court, it is imperative to appeal to them that they must refrain from using patriotism as a shield to protect the government from being questioned.

In a constitutional democracy, the judiciary is expected to stand as the guardian of individual rights and civil liberties, not as an amplifier of executive authority. Courts that invoke the language of patriotism to delegitimise dissent or insulate the government from public scrutiny do a grave disservice to the democratic ethos and the Constitution itself.

Such judicial overreach does not strengthen democracy. It suffocates it. It emboldens the powerful, silences the marginalised and sends a chilling message that free speech exists only on terms approved by authority. A court that tells citizens how and where to use their voice is not defending democracy. It is presiding over its slow burial.

Courts must distinguish between loyalty to the nation and to those in power. The two are never the same. The courtroom must remain a space where the citizens’ right to question the state is protected, not suppressed under the weight of nationalism. To conflate criticism of the government with a lack of patriotism is to silence the very spirit of democracy that the judiciary is meant to uphold.

Courts must also resist the dangerous temptation to police where citizens speak and what they say. Courts that start prescribing venues for dissent or sanitising the content of speech cease to be guardians of freedom and become its gatekeepers. The Constitution entrusts the judiciary with the protection of liberty, not its rationing, and certainly not prescribing where one can speak or assemble.

Judicial overreach: Scripting democracy’s dialogue

The day courts start deciding which causes are worth speaking about is the day democracy is reduced to a performance on a stage whose script is written by authority. The Bombay High Court’s remark questioning why a party does not raise domestic issues instead of organising a meeting on Gaza is regressive. It is an insult to the very idea of free speech and assembly. For a court in a constitutional democracy to tell a political party what it should speak about is an abuse of authority.

In India, no institution, however exalted, has the moral or constitutional right to prescribe the content of political discourse. The right to choose one’s battles, including the right to be silent on some, belongs to the citizen and the political actor, not to the Bench. Such judicial overreach reeks of paternalism, trivialises genuine domestic struggles and reflects an unspoken arrogance that courts can dictate the priorities of politics.

The Supreme Court’s instruction to an elected representative like Rahul Gandhi that he must not speak on national issues on social media but only in Parliament delivers a body blow to the very heart of democracy. The Constitution protects citizens’ freedom to speak in public spaces, both physical and digital, without seeking permission from any authority. Such a prescription is not the court’s mandate.

To suggest that an MP’s voice belongs only within the walls of Parliament is to ignore the fact that democratic debate thrives in the open, not behind procedural barricades. This kind of judicial diktat shrinks the public sphere, silences dissent and hands an unearned gift to the powerful, who would love nothing more than to control how they are criticised.

Courts are meant to be bulwarks against censorship, not its instrument. If the judiciary begins to ration free speech, it will not be long before democracy is left gasping for air.

Defending democracy’s true legacy

In a democracy, governments are transient, elected to serve the people, and their policies and actions are legitimate subjects of public scrutiny. National interest, on the other hand, is a far deeper and more enduring idea that transcends the tenure of any ruling party. Courts that blur this line allow criticism of the government to be misread as an attack on the nation itself. This is a dangerous conflation that chills free speech, stifles dissent and shields those in power from accountability.

Such an approach weakens democratic checks and balances and erodes the very constitutional principles the judiciary is sworn to uphold. The strength of India’s democracy lies in its ability to allow fearless questioning of authority without fear of being branded “anti-national."

Courts are meant to defend the citizens’ right to speak, not to curate or script that speech. Yet, recent judicial remarks suggest a worrying drift towards precisely that kind of overreach. A judiciary that dictates the terms of speech and assembly ceases to be the guardian of liberty and becomes a participant in its erosion.

The Indian judiciary’s legacy of defending freedom is hard-won, and it must not bend to please the government of the day or fear its displeasure. Hence, the courts must draw a firm and unwavering distinction between critiquing the government and undermining national interest.

Manoj Kumar Jha is Rashtriya Janata Dal’s Rajya Sabha MP from Bihar.

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