Recently retired Chief Justice of India (CJI) Bhushan R Gavai, said on Friday that “process itself becomes punishment” when cases related to freedom of speech remain pending for years and “delay may inflict irreversible damage on liberty” of the accused despite whether he or she gets acquitted in due course.
Justice Gavai said, “increasingly, the Supreme Court has been required to confront situations where the initiation of criminal proceedings, denial of bail, prolonged incarceration, or systemic delays have a direct bearing on a citizen’s expressive freedom.”
He added, “In such cases, the procedural and constitutional law intersect. The criminal process becomes not merely a tool for adjudicating guilt, but a space where fundamental freedoms can be imperilled or protected.”
Justice Gavai emphasised, “When cases involving speech offences remain pending for years, whether at the stage of investigation, trial, or appeal, the process itself becomes a punishment. Even if the accused ultimately secures acquittal, the delay may have already inflicted irreversible damage on their liberty, reputation, and expressive agency. We have to be conscious of such realities.”
The former CJI was speaking on the topic “Freedom of speech and expression: Its scope and limitation under the constitution” at the Justice KT Desai Memorial lecture on Friday evening at Central Court (room number 46) in the Bombay High Court building.
Referring to past landmark judgements, he said that over the last 75 years, the Supreme Court has “steadily shaped and reshaped the contours of the freedom of speech and expression under Article 19(1)(a) of the Constitution, while simultaneously defining the permissible limits under Article 19(2).”
He also referred to the Electoral Bonds judgement by the Constitutional bench of the Supreme Court which he was part of. Justice Gavai said, in the said case, the contest was between voter’s right to know under Article 19 (1) (a) of the Constitution and donor’s claim to privacy under Articles 19 and 21.
“Applying proportionality, the Court struck down the scheme, holding that anonymity in political funding undermined democratic transparency. The voter’s right to make an informed electoral choice, central to free speech and democratic participation, was held to outweigh donors’ interest in confidentiality,” he said.
Justice Gavai said in the last ten years, the Supreme Court and other courts had addressed “intersection of technology, free speech and the internet” and that the “SC had to navigate complexities of digital communication, its unprecedented reach, its potential for misuse, and its fundamental role in shaping public discourse”.
He added, “These judgements reflect a growing recognition that constitutional protections must adapt to new platforms and modes of expression, and that traditional free-speech principles must be recaliberated to respond to the unique challenges posed by the online world, including misinformation, surveillance, and the monopolistic power of digital intermediaries.”
“The evolution of free speech jurisprudence in India reflects a larger constitutional commitment to ensure that the State’s power to restrict expression does not overshadow the citizen’s right to think, speak, and participate freely in the democratic project.
Chief Justice Shree Chandrashekhar of the Bombay High Court, who presided over the event, said that courts have “consistently defended free speech while ensuring that restrictions remain constitutionally disciplined and narrowly tailored”.
He stressed on the “delicate balance between freedom of expression and responsible discourse” and said “while dissent is a cornerstone of democracy, we must guard against its misuse”.
CJ Chandrashekhar added, “In the digital age, social media sometimes intensifies hate speech and cyber bullying. The challenge lies in regulating harmful contents without suppressing dissent. The judiciary’s role is crucial in interpreting restrictions fairly, ensuring that the liberty thrives without chaos.”
Former CJI Bhushan R. Gavai warned that delays in speech-related cases can irreparably damage liberty and reputation, effectively punishing individuals before verdicts. (Express photo by Amit Mehra) 
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