Free Speech in India Under Threat: Judiciary, Article 19, and Misuse of Restrictions | The Study IAS
Explore how free speech in India is facing new challenges after the Supreme Court’s decision in the Neha Rathore case. Understand Article 19(1)(a), reasonable restrictions, judicial role, misuse of vague laws, and why protecting dissent is vital for democracy.
Free Speech in India Faces Serious Judicial and Legal Threats
Free speech in India has once again come under scrutiny after the Supreme Court refused to quash the FIR against folk singer Neha Rathore for her social media posts following the Pahalgam attack. This development has reignited discussions on the shrinking space for dissent, the growing misuse of criminal law, and the judiciary’s constitutional responsibility to safeguard fundamental rights.
What is Freedom of Speech?
Constitutional Foundation
Freedom of speech and expression is guaranteed under Article 19(1)(a) of the Indian Constitution. It is the backbone of a democratic society, enabling citizens to question the State and participate in policymaking. The Supreme Court, in Indian Express v. Union of India (1985), termed free speech as the “heart of political liberty.”
Democratic Role
Free speech strengthens institutional transparency, public debate, and government accountability. As highlighted in the Economic Survey 2022–23, the free flow of information improves institutional efficiency and market functioning. A democracy thrives only when criticism—particularly of those in power—is protected.
What Are the Reasonable Restrictions on Free Speech?
Article 19(2) specifies that the State may impose “reasonable restrictions” on free speech in the interests of:
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Sovereignty and integrity of India
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Security of the State
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Public order
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Decency or morality
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Contempt of court
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Defamation
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Incitement to an offence
Judicial precedents strongly limit the misuse of these restrictions:
Incitement and Public Order
In Kedar Nath Singh (1962), the Supreme Court held that only speech that incites violence or public disorder can be criminalised. The landmark judgment in Shreya Singhal (2015) introduced the “incitement test”, differentiating advocacy (which is protected) from incitement (which can be penalised). Speech must pose a proximate and direct threat of lawless action to be restricted.
Need for Narrow Interpretation
Restrictions on morality, defamation, or contempt must be narrowly tailored. Multiple Law Commission reports emphasise that vague or overly broad laws create avenues for abuse by authorities.
Why Is Free Speech Under Threat Today?
1. Misuse of Vague Legal Provisions
Ambiguous offences like “endangering sovereignty” and loosely defined public order clauses allow wide police discretion.
The Neha Rathore case (2025) exemplifies how online criticism—without any element of incitement—can invite FIRs, unlawful interrogation, and prolonged harassment.
2. Judicial Reluctance to Intervene Early
Courts frequently decline to quash FIRs during early stages. This allows the process itself to become punishment, as seen in the case of Ali Khan Mahmudabad, where prolonged content analysis was ordered unnecessarily.
3. Chilling Effect on Citizens
Fear of arrest, custodial interrogation, and lengthy legal battles pushes citizens towards self-censorship, eroding democratic debate and public trust.
Why Must the Judiciary Defend Free Speech?
Constitutional Responsibility
As the guardian of fundamental rights, the judiciary must act as a protective shield against executive excesses. In State of West Bengal v. Anwar Ali Sarkar (1952), the Court affirmed its duty to prevent arbitrary state action.
Preventing Democratic Backsliding
Criminalisation of dissent weakens democratic institutions. International findings, such as those from the World Justice Project Rule of Law Index, show that strong judicial independence is directly linked to better civil liberties protection.
Ensuring Consistent Application of Incitement Standard
Judicial decisions must rely on constitutional tests—not personal discomfort, ideology, or moral judgment. Consistency safeguards democracy and reduces arbitrary policing.
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The Source’s Authority and Ownership of the Article is Claimed By THE STUDY IAS BY MANIKANT SINGH
