Speaking at the Jaipur Literature Festival, former Chief Justice of India D Y Chandrachud cautioned against the growing tendency to use arrest as a tool to curb free expression, warning that the criminal justice system is increasingly being deployed to silence dissent rather than to investigate crime. He stressed that in a constitutional democracy, arrest must remain a measure of last resort, not a reflexive response to public outrage or political pressure.
Chandrachud underlined a crucial distinction in law, saying that while offensive or distasteful speech may be uncivil, it does not automatically amount to a criminal offence. He pointed out that the law does not criminalise everything that shocks or angers society, and that courts must be careful not to conflate moral disapproval with legal culpability.
Reflecting on cases from his tenure, he spoke about the worrying trend of treating arrest itself as a form of punishment. He recalled a matter involving a senior opposition leader who had made deeply offensive remarks about the parentage of a political figure. While acknowledging that the comments were unacceptable and uncivil, Chandrachud said the court was clear that the situation did not justify an arrest, and the individual’s liberty was protected.
He said such decisions reveal the true test of judicial independence, as courts are often required to shield unpopular individuals from excessive state action. According to him, judges must consciously resist the pull of public sentiment and political optics, especially when personal liberty is at stake and powerful interests are involved.
Chandrachud also recounted intervening late at night during his tenure to ensure that activist Teesta Setalvad was granted an urgent hearing when she faced the prospect of immediate imprisonment. He clarified that whether or not bail was eventually granted was a matter for judicial determination, but the right to be heard could not be denied, as it lies at the heart of due process.
Another case he referred to involved a man named Ikram, who had been convicted in nine separate cases of electricity theft and sentenced to a cumulative prison term of 18 years, a punishment longer than that imposed on many convicted of serious violent crimes. Chandrachud said such outcomes highlight how mechanical application of law can result in grave injustice if constitutional values are ignored.
Emphasising the importance of proportionality, he said personal liberty is a fundamental right that cannot be casually curtailed. In Ikram’s case, the Supreme Court intervened, recognising that sentencing someone to nearly two decades in prison for such offences violated basic principles of fairness and justice.
Chandrachud noted that cases involving ordinary individuals rarely make headlines, yet they are often the ones that most clearly reveal how the justice system affects everyday lives. He said safeguarding liberty in these situations is as important as deciding high-profile constitutional questions.
Responding to criticism that courts appear inconsistent on bail, he described the Supreme Court as a polyvocal institution shaped by judges with different experiences, perspectives and philosophies. He argued that disagreement among judges is not a weakness but an inherent feature of a democratic judicial system.
Concluding his remarks, Chandrachud said that justice is not meant to chase popularity or public approval. Instead, he said, the true role of the judiciary is to protect individual liberty, particularly in moments when doing so is uncomfortable, unpopular or politically inconvenient.
