Reaffirming Free Speech in a Constitutional Democracy.

This editorial is based on “Courts must protect, not regulate free speech which was published in The Hindus on 15/12/2025. The article brings into picture why courts must protect the right guaranteed under  Article 19(1).Further it delves into what cautions must be taken to regulate Free Speech in the digital era.

For Prelims:Article 19(1)(a),Freedom of Speech & Expression, Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021., Right to Privacy,IT Act 2000,BNS 2023,Separation of power  

For Mains:Freedom of Speech in India, Judicial Overreach, Digital Speech Regulation, Separation of Powers, Constitutional Morality and Fundamental Rights 

Recent Supreme Court discussions on regulating online content have renewed debate over the judiciary’s role in shaping the boundaries of free speech. While freedom of expression under Article 19(1)(a) forms the bedrock of India’s democracy, concerns arise when judicial observations appear to expand regulatory control beyond constitutional limits. In a constitutional framework, any restriction—whether by the executive or judiciary—must remain strictly anchored within Article 19(2), lest the core guarantee of free speech be gradually diluted in the name of order. 

What are the Existing Provisions Regulating Free Speech? 

• Constitutional Guarantee under Article 19(1)(a): All Indian citizens have the fundamental right to freedom of speech and expression, which includes expressing views by words, writing, print, pictures, movies, digital media and the press.  
  • This right also covers the freedom to access and disseminate information and the freedom of the press as an essential part of public discourse. 
• Reasonable Restrictions under Article 19(2): Freedom of speech is not absolute; the State may impose reasonable restrictions in the interests of sovereignty, security of the State, friendly foreign relations, public order, decency or morality, contempt of court, defamation, and incitement to offence. 
  • Any law curbing speech must be legally backed, reasonable, and connected to these grounds. 
• Bharatiya Nyaya Sanhita (BNS), 2023: Section 296: Penalises obscene acts or songs in public places causing annoyance, reinforcing standards of public decency. 
  • Section 299: Punishes deliberate and malicious acts intended to outrage religious feelings, protecting social harmony.  
  • Section 300: Criminalises disturbance of religious assemblies or worship, safeguarding public order and communal peace. 
• Information Technology Act, 2000 – Regulation of Online Speech:The IT Act governs speech in the digital space, where communication is rapid and wide-reaching. 
  • Section 66 addresses computer-related offences such as hacking and unauthorised access, while Section 66E protects individuals from privacy violations through the unauthorised sharing of private images.  
  • Section 67 penalises the publication or transmission of obscene or sexually explicit material online. These provisions ensure that digital freedom does not lead to misuse, exploitation, or harm. 
  • Section 69A authorizes Central and State governments  to issue directions “to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer resource”. 
• IT Rules, 2021 – Intermediary and Digital Media Regulation: The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, establish accountability for online platforms. They require social media intermediaries and digital news publishers to follow due diligence norms, remove unlawful content when directed, and appoint grievance officers to address user complaints. 
  • The rules also mandate a code of ethics and a three-tier grievance redressal mechanism involving self-regulation, oversight bodies, and government supervision, ensuring responsible digital communication.

Judicial Interpretation

• Romesh Thapar v. State of Madras (1950): The Supreme Court struck down a ban on a journal, holding that restrictions must be narrowly defined and cannot be used to curb free expression on weak grounds. This case laid the foundation for robust protection of free speech and press. 
• Brij Bhushan Sharma v. State of Delhi (1950): The Court invalidated prior censorship on a newspaper, reinforcing that pre-publication restraints violate free speech unless there is clear danger to public order.  
• Sakal Papers Ltd v. Union of India (1961): The Supreme Court struck down restrictions on newspaper pricing and advertising, emphasising that economic burdens imposed on the press can amount to unreasonable interference with freedom of speech. 
• Shreya Singhal v. Union of India (2015): The Supreme Court struck down Section 66A of the IT Act for being vague and overly broad, holding that arrests for online speech violated Article 19(1)(a) and could not be justified under Article 19(2). 
• Anuradha Bhasin v. Union of India (2020): The Supreme Court held that freedom of speech and trade through the internet is protected under Article 19(1)(a) and 19(1)(g). It ruled that indefinite internet shutdowns are unconstitutional and must meet the tests of necessity and proportionality. The judgment also mandated periodic review of suspension orders, strengthening safeguards against arbitrary restrictions. 

What Are the Key Issues Affecting Freedom of Speech in India? 

• Rising Free Speech Violations and the Chilling Effect on Dissent: India witnessed a sharp rise in documented free speech violations, with the Free Speech Collective recording 14,875 incidents in 2025, including 117 arrests and 9 deaths linked to expression-related activities.  
  • This highlights that threats to free speech extend beyond online censorship to physical safety, creating a climate of fear that discourages dissent and democratic participation. 
• Frequent Internet Shutdowns Curtailing Access to Information: According to Access Now, India imposed 84 internet shutdowns in 2024, the highest among democratic nations.  
  • Such disruptions severely affect access to information, education, healthcare, and livelihoods, while raising serious concerns over proportionality, transparency, and due process in digital governance. 
• Mass Platform Blocking and Executive Control Over Online Speech: In May 2025, reports revealed that over 8,000 social media accounts were ordered to be blocked under government directives. Large-scale takedown powers exercised through executive orders illustrate how state authority can significantly shape digital discourse, often with limited judicial oversight. 
• Opaque Takedown Mechanisms and Expanding Enforcement Infrastructure: The government’s “Sahyog” portal recorded 294 takedown requests covering 3,276 URLs between October 2024 and June 2025.  
  • While framed as a coordination mechanism, the lack of transparency, independent review, and clear appeal processes has raised concerns about overreach and procedural fairness. 
• Impact on News Access and Media Freedom: In July 2025, the temporary blocking of the Reuters News account on X following a legal demand—later restored—highlighted how takedown actions can disrupt access to credible journalism. 
  •  Such incidents deepen uncertainty for media platforms and raise questions about editorial independence and public access to verified information. 
• Moral Responsibility in Exercising Free Speech: Cases like the Ranveer Allahabadia controversy highlight that free speech carries ethical responsibilities beyond legal limits. Influencers with large audiences shape public discourse, making restraint and sensitivity essential. 
  •  Even when speech is lawful, irresponsible expression can harm social harmony and public trust. Such cases underline the need for self-regulation and ethical accountability alongside legal safeguards in the digital age. 
• Judicial Endorsement of Tighter Content Regulation:Karnataka High Court ruling in  X Corp v. Union of India & Others, upholding the government’s expanded takedown powers. 
  • The court reinforced the legal obligation of platforms to comply "expeditiously" with state directives, ruling that failure to do so results in the loss of "safe harbor" protection. 
  • While affirming sovereignty and public order, the judgment intensified debates over balancing regulatory authority with constitutional protections for free speech. 
• Surveillance and Data Requests Intensifying Self-Censorship: Transparency reports from Meta and other platforms indicate very high volumes of government data requests from India, raising concerns over privacy erosion.  
  • India ranked second worldwide (behind only the United States) in the volume of user information disclosure requests sent to Google during the first half of the year 2024. 
  • Extensive surveillance capabilities can create a chilling effect, where users self-censor due to fear of identification, monitoring, or legal repercussions. 

How Can Freedom of Speech Be Safeguarded in India? 

• Strengthening Judicial Oversight and Proportionality Tests:  Courts must strictly apply the tests of legality, necessity, and proportionality laid down in judgments such as Shreya Singhal v. Union of India (2015) and Anuradha Bhasin v. Union of India (2020).  
  • These rulings emphasise that restrictions on speech must be the least restrictive means and backed by clear legal authority. Regular judicial review of speech-related executive actions can prevent misuse of vague or excessive restrictions. 
• Reforming and Clarifying Speech-Related Laws: Laws dealing with public order, obscenity, and online speech—such as Sections 296, 299, and 300 of the Bharatiya Nyaya Sanhita and provisions under the IT Act, must be narrowly defined to prevent misuse. Clear statutory definitions and safeguards against arbitrary interpretation can reduce the chilling effect on legitimate speech. 
  • For example, Germany’s Network Enforcement Act (NetzDG) provides a model for procedural safeguards in content moderation. Rather than using vague terms like "anti-national," the law lists 22 specific criminal offenses (e.g., incitement to hatred, defamation, using symbols of unconstitutional organizations) that justify a takedown. 
• Ensuring Transparency in Content Takedown and Blocking Orders:Government takedown requests under IT Rules should follow transparent procedures, including written reasons, public disclosure (except in sensitive cases), and a right to appeal.  
  • Countries like the UK and EU follow disclosure-based models that balance security concerns with free expression ,an approach India can emulate. 
• Strengthening Institutional Safeguards for Media Freedom: Independent regulatory bodies such as the Press Council of India and News Broadcasting Standards Authority should be empowered with greater autonomy and enforcement capacity.  
  • This reduces executive overreach while ensuring ethical journalism and accountability. 
• Protecting Journalists and Whistle-blowers: Legal safeguards are required to prevent harassment, arbitrary arrests, or intimidation of journalists and whistle-blowers.  
  • Ensure the operationalization of the Whistle Blowers Protection Act and stronger witness-protection frameworks, in letter and spirit, to create a safer environment for investigative reporting. 
• Regulating Digital Platforms Without Overreach: Social media regulation must balance harm prevention with freedom of expression. Instead of blanket takedowns, graded responses such as content labelling, fact-checking, and algorithmic transparency should be prioritised.  
  • The EU’s Digital Services Act offers a useful reference model. 
• Limiting Internet Shutdowns Through Clear Standards: Internet shutdowns should be used only as a last resort, following the principles of necessity, proportionality, and temporariness laid down by the Supreme Court in Anuradha Bhasin case.  
  • Mandatory periodic review and judicial oversight can prevent misuse. 
• Promoting Media Literacy and Civic Awareness: Long-term protection of free speech requires empowering citizens to critically evaluate information. Integrating media literacy into education curricula can reduce misinformation while strengthening democratic discourse. 
  • For example, Finland provides a leading example of the effective, long-term implementation of media literacy. Media literacy is not taught as a standalone subject but is integrated across all school subjects from preschool onwards. 
• Ensuring Independent Oversight Mechanisms: Establishing an independent digital rights or media ombudsman can help adjudicate disputes, oversee government actions, and protect citizens’ expressive freedoms without politicisation. 
  • For example, countries like France use the neutral ARCOM authority (Audiovisual and Digital Communication Regulatory Authority)to ensure all decisions are made fairly, not politically, protecting citizens' right to speak freely. 

Conclusion:  

Freedom of speech is central to India’s democracy, enabling dissent, accountability, and informed public debate. While constitutional safeguards exist, emerging challenges such as digital regulation and security concerns require careful balancing. Ensuring transparent laws, judicial oversight, and proportional restrictions is essential to protect this fundamental right while maintaining public order. 

Drishti Mains Question

In the digital era, freedom of speech in India is increasingly influenced by executive action and judicial interpretation. Examine the constitutional framework governing free speech, analyse recent challenges such as judicial overreach and digital regulation, and suggest measures to safeguard this right without undermining public order.

FAQs

1. What does Article 19(1)(a) guarantee?
It guarantees the freedom of speech and expression, including the right to express opinions, disseminate information, and engage in artistic, political, and digital expression.

2. Can free speech be restricted in India?
Yes, but only on the specific grounds listed in Article 19(2), such as public order, decency, defamation, or incitement to an offence.

3. Why is judicial overreach in speech regulation a concern?
Because courts may move beyond adjudication into policy-making, undermining separation of powers and democratic accountability.

4. What is the chilling effect on free speech?
It refers to self-censorship by individuals due to fear of legal action, FIRs, or surveillance.

5. How can India balance free speech and regulation?
By prioritising post-publication remedies, judicial restraint, precise laws, and a rights-centric digital governance framework.

UPSC Civil Services Examination, Previous Year Questions (PYQs) 

Prelims

Q. ‘Right to Privacy’ is protected under which Article of the Constitution of India? (2021)  

(a) Article 15  

(b) Article 19  

(c) Article 21  

(d) Article 29 

Ans: ( c ) 

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Mains 

Q. What do you understand about the concept “freedom of speech and expression”? Does it cover hate speech also? Why do the films in India stand on a slightly different plane from other forms of expression? Discuss. (2014)