UPSC Syllabus Topic: GS Paper 3-Fundamental Rights
Introduction
Freedom of speech is central to democracy and individual liberty. Threats to this right usually come from the executive or legislature. Recent judicial proceedings have raised concern that courts themselves may begin shaping regulation. When courts move from protecting speech to suggesting regulatory frameworks, it raises serious constitutional and democratic questions about institutional roles and limits.
What is Freedom of Speech and Expression?
- Freedom of speech and expression is broadly understood as the notion that every person has the natural right to freely express themselves through any media andwithout outside interference, such as censorship, and without fear of reprisal, such as threats and persecutions.
- Freedom of expression is a complex right as freedom of expression is not absolute.
- It carries with it special duties and responsibilitiestherefore it may be subject to certain restrictions provided by law.
Constitutional and Legal Backing of Free Speech
- Constitutional backing
Article 19(1)(a) and its protection: The Constitution guarantees freedom of speech and expression under Article 19(1)(a). This right forms part of the basic framework of democratic participation and accountability.
Exhaustive limits under Article 19(2): Restrictions on free speech are strictly limited to grounds listed in Article 19(2), such as sovereignty, security of the State, public order, defamation, and morality. These grounds are exhaustive and not illustrative.
- Existing statutory regulation of speech
Information Technology Act, 2000
Section 67 penalises the publication or transmission of obscene content in electronic form.
Section 66 addresses computer-related offences such as hacking.
Section 66E penalises the publication of personal images without consent.
Section 66F deals with cyber terrorism.
Bharatiya Nyaya Sanhita, 2023
Sections 294, 295, and 296 penalise obscene acts and content in public spaces.
- Intermediary Rules and concerns
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 create an oversight mechanism and impose obligations on publishers.
Judicial Interpretation of Free Speech in India
- Courts as constitutional umpires: The Constitution assigns courts the role of examining whether restrictions on free speech are reasonable. During the Constituent Assembly debates, it was clearly stated that the Supreme Court must act as the final arbiter on the validity of restrictions, not as a law-maker.
- Judicial self-restraint as a guiding principle: The Court has earlier shown restraint in matters affecting expression. In Adarsh Co-operative Housing Society Ltd. vs Union of India (2018), it refused to direct filmmakers to add disclaimers. It held that such decisions lie with statutory authorities and must follow due process.
- Exhaustive nature of Article 19(2): In Kaushal Kishor vs State of Uttar Pradesh (2023), a five-judge Bench clearly held that the grounds listed in Article 19(2) are exhaustive. It ruled that no additional restrictions can be imposed under the guise of competing fundamental rights.
- Regulation versus unlawful restraint: In Sahara India Real Estate Corp. Ltd. vs SEBI (2012), the Court examined media regulation in detail. It warned against blanket prohibitions and held that pre-censorship must be avoided. Any postponement of publication must be a last resort and meet a high standard of reasonableness.
- Caution against judicial overreach: In Common Cause vs Union of India (2008), the Court cautioned itself against entering areas beyond its institutional competence. It acknowledged that many policy problems are better addressed by the legislature, especially where technical expertise is required.
Challenges in Regulating Free Speech in India
- Risk of prior restraint: Broad and preventive regulatory measures can silence speech even before any legal violation occurs. This undermines democratic debate and contradicts the Court’s caution against pre-censorship, as stressed in Sahara India Real Estate Corp. Ltd. vs SEBI (2012).
- Vague and subjective standards: Terms such as “morality,” “offensiveness,” or “well-known moral standards of society” lack clear definition. Such indeterminate standards allow arbitrary enforcement and create uncertainty for speakers.
- Chilling effect on legitimate speech: Fear of FIRs, prosecution, takedowns, or sanctions discourages citizens, journalists, and creators from expressing criticism or unpopular views. This indirect suppression weakens the marketplace of ideas.
- Overlap with existing statutory controls: India already has multiple legal provisions regulating speech under the IT Act and the Bharatiya Nyaya Sanhita. Additional regulation risks duplication and excessive control rather than better enforcement.
- Judicial expansion beyond case limits: When courts extend the scope of individual cases to examine broader regulatory needs, they risk entering the policy domain. This concern echoes the Court’s own warning in Common Cause vs Union of India (2008).
- Erosion of constitutional boundaries: Judicial involvement in designing regulatory frameworks blurs the separation of powers. The Constitution assigns law-making to the legislature and review of reasonableness to courts.
- Technical complexity of digital speech: Online platforms operate at massive scale and speed, involving algorithms and evolving technologies. Courts face institutional limits in handling such technical regulation.
- Risk of normalising stricter controls: Repeated judicial calls for stringent laws, coupled with executive readiness, may normalise statutory gags. This risks shrinking constitutional freedoms beyond Article 19(2), contrary to Kaushal Kishor (2023).
Comparative Global Practices
- Democratic model:
- Major democracies mainly follow a takedown-based approach. The EU’s Digital Services Act, 2022 sets content removal protocols.
- Germany’s Network Enforcement Act, 2017 pushes prompt action on harmful content without harming free speech.
- The UK Online Safety Act, 2023 and Australia’s Online Safety Act, 2021 focus on removal duties and fines for non-compliance.
- Authoritarian model: China and Russia rely more on surveillance and pre-censorship, using harsh laws to restrict online speech.
Way Forward
- Stay within Article 19(2): Courts should test restrictions only on the expressly listed grounds and avoid adding new limits. It should not be judged by shifting moral standards
- Do not widen cases into policy: In FIR-challenge matters, when the Court says it will “extend the scope” to decide what regulation is needed, it crosses into the legislative space. Even suggestions like publishing draft guidelines and inviting comments show this policy drift, which should be avoided.
- Avoid pre-censorship: Any prior restraint should be shunned; postponement or similar orders must be a last resort with a high reasonableness threshold.
- Use existing laws first: Enforce current provisions on obscenity and cyber offences under the IT Act and BNS, instead of seeking fresh controls.
- Review the 2021 IT Rules strictly: Oversight and “due caution” clauses should be examined for overreach and penal excess.
- Prefer removal-based compliance Follow democratic practice that focuses on takedown protocols and penalties for non-compliance, not statutory gags.
- Preserve institutional separations: Legislatures should debate and frame laws, executives should implement them, and courts should review them for constitutionality.
Conclusion
Freedom of speech survives only when courts respect their constitutional role as guardians, not regulators. The Constitution clearly limits restrictions under Article 19(2), and existing laws already address misuse. Judicial expansion into regulation risks prior restraint and democratic erosion. Courts must protect liberty through constitutional review, not policy design.
Question for practice:
Discuss how judicial intervention in regulating free speech can blur constitutional boundaries and affect democratic freedoms in India.
Source: The Hindu
