Courts and Freedom of Speech in India: A Constitutional Crossroads
Freedom of speech in India stands at a crucial constitutional crossroads. A recent op-ed by Supreme Court lawyers Kaleeswaram Raj and Thulasi K. Raj has reignited an urgent debate on the judiciary’s evolving approach towards free expression, particularly in the digital sphere. The article raises serious concerns about judicial overreach, especially in cases like Ranveer Allahbadia vs Union of India, where the Supreme Court went beyond adjudication to examine the need for new regulatory frameworks for online content.
At a time when speech is already heavily regulated through laws and executive rules, calls for additional “neutral, autonomous bodies” to govern expression raise fundamental constitutional questions. Is India moving from protecting speech to managing it?
Constitutional Position on Freedom of Speech in India
The freedom of speech and expression in India is guaranteed under Article 19(1)(a) of the Constitution. However, this right is not absolute. The Constitution itself permits reasonable restrictions under Article 19(2) on specific and limited grounds such as public order, sovereignty, security of the State, decency, morality, and defamation.
Importantly, the Supreme Court has consistently held that these grounds are exhaustive, not illustrative. This means neither Parliament nor the judiciary can invent new reasons to curb speech.
This principle was emphatically reaffirmed in Kaushal Kishor vs State of Uttar Pradesh (2023), where the Court clarified that even the need to balance other fundamental rights cannot justify expanding restrictions beyond Article 19(2).
Laws Regulating Freedom of Speech in India
While the Constitution provides the framework, several laws operationalise restrictions on speech:
1. Indian Penal Code (IPC) and Bharatiya Nyaya Sanhita (BNS)
Key provisions regulating speech include:
-
Defamation: Section 499 IPC / Section 356 BNS
-
Public mischief and rumours: Section 505 IPC / Section 197 BNS
-
Outraging religious feelings: Section 295A IPC / Section 308 BNS
-
Obscenity: Section 294 IPC
These provisions continue to be used frequently, often leading to criminalisation of speech rather than proportionate regulation.
2. Information Technology Act, 2000
The IT Act is the primary law governing online speech in India.
-
Section 66A (struck down): Invalidated in Shreya Singhal vs Union of India (2015) for being vague and chilling free speech.
-
Section 67: Penalises obscene content online.
-
Section 69A: Empowers the government to block online content in the interests of national security and public order.
3. IT Rules, 2021: Executive Control Over Digital Speech
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 significantly expand executive oversight by:
-
Imposing strict “due diligence” obligations on intermediaries
-
Mandating content takedowns under broadly defined categories
-
Establishing a three-tier grievance redressal system
Critics argue these rules create a chilling effect on free speech and enable indirect censorship without adequate judicial safeguards.
4. Other Speech-Regulating Laws
Additional statutes regulating speech include:
-
Cinematograph Act, 1952 – film certification and censorship
-
Representation of the People Act, 1951 – election speech restrictions
-
Unlawful Activities (Prevention) Act (UAPA) – criminalization of speech linked to national security
Together, these laws already form a dense regulatory ecosystem.
Why Judicial Calls for More Regulation Are Concerning
The op-ed warns that when courts themselves begin suggesting new regulatory bodies or frameworks, they risk undermining the constitutional balance. The judiciary’s role is to protect fundamental rights, not redesign the regulatory architecture for speech.
When judicial proceedings shift from rights-based adjudication to policy-making, it blurs the separation of powers and weakens speech protections.
Why Freedom of Speech in India Is Essential
1. Pillar of Democratic Governance
Freedom of speech enables citizens to question authority, critique policies, and hold governments accountable. Without it, democracy becomes procedural rather than participatory.
2. Engine of Social Reform
From anti-caste movements to gender justice and minority rights, social change in India has historically depended on the ability to speak freely and challenge dominant narratives.
3. Discovery of Truth
The “marketplace of ideas” thrives only when dissenting voices are allowed to exist. Suppressing speech does not eliminate falsehoods—it entrenches them.
4. Individual Dignity and Autonomy
Speech is central to personal liberty. The ability to express thoughts, beliefs, and identities is intrinsic to human dignity under Article 21.
5. Check on State Power
A free press and vocal citizenry act as safeguards against authoritarian drift. Excessive regulation—whether executive or judicial—erodes this constitutional check.
6. Fulfilment of the Constitutional Vision
The Preamble’s ideals of Justice, Liberty, Equality, and Fraternity are unattainable without open dialogue. Freedom of speech is the connective tissue that binds India’s plural society together.
Conclusion
The debate on freedom of speech in India is no longer only about executive censorship. It now extends to judicial approaches that may unintentionally legitimise greater regulation. As Kaleeswaram Raj and Thulasi K. Raj caution, the solution to problematic speech lies not in expanding control but in reaffirming constitutional limits.
In a democracy as diverse and complex as India, less regulation and stronger constitutional protection—not more oversight—remain the true guarantors of free expression.
Subscribe to our Youtube Channel for more Valuable Content – TheStudyias
Download the App to Subscribe to our Courses – Thestudyias
The Source’s Authority and Ownership of the Article is Claimed By THE STUDY IAS BY MANIKANT SINGH
