Abstract
India is the largest democracy, and it is crucial to protect free speech and expression. The paper traces the origins of free speech before its formal inclusion under Article 19(1)(a) and the significance of free speech in India, detailing how it is crucial for a healthy society. The article examines the recent developments and the judiciary’s role in safeguarding the rights, and further acknowledges that there needs to be a balance between individual rights and state control.The study aims to analyse and understand the significance of Article 19(1)(a) and further, to analyse the recent challenges in India on the matter of free speech and expression.The article addresses the questions by employing a doctrinal methodology drawing on secondary resources to provide a deep understanding of the importance of free speech and expression in a democratic society by analysing contemporary issues and the role of the judiciary.The study is essential as it presents a nuanced understanding of free speech that is essential in a democracy, the contemporary issues, and the role of the judiciary in safeguarding free speech and expression.
Keywords: Freedom of Speech and Expression, Article 19, Developments and Challenges, Censorship.
- Introduction
In India, one can trace the right to freedom of speech and expression in the Rig Veda, the teachings of Buddha and the edicts of Ashoka. Later, during the British rule and the freedom struggle, penal action was taken under the draconian laws, such as the Press Act of 1910 and Section 124A of the Indian Penal Code, 1860.[1] These were used to control and prevent anti-colonial views and dissent.[2]The framers of the Indian Constitution expressly added the freedom of speech and expression as a fundamental right in the Indian Constitution. Article 19(1)(a) must be read with the preamble words “liberty of thought, expression, belief, faith and worship.”[3]
M.P. Jain, in his book states that freedom of speech is essential for democracy to function correctly.[4] The citizens have the right to freedom of speech and expression, subject to reasonable restrictions under Article 19(2).[5] Reasonable restrictions are under the purview of judicial review.[6] The Constitution provides for a system of judicial control to safeguard the rights of individuals even against the popular majority.[7] Freedom of speech and expression also includes the right to be free from censorship, the right to profess information, and access to information.[8] Free speech provides a mechanism that helps strike a balance between stability and social change. In a society, the people must be able to have their own beliefs and communicate them freely.[9]
There must be a balance between free speech and state control. There are issues of privacy, censorship, and other issues that complicate such a balance. However, the Judiciary has interpreted to safeguard the rights of the people. The Judiciary, from landmark cases such as Romesh Thapper to recent cases like Shreya Singhal, has interpreted free speech. The digital revolution and globalisation have brought about an information revolution. The consistent rulings on these recent challenges will ensure a vibrant democracy in India, where free speech can thrive.
- Meaning and Significance of Free Speech
Freedom of speech means expressing one’s own ideas through a visible representation, such as gestures, signs, or a communicable medium.[10] Freedom of speech and expression also includes the right to be free from censorship, the right to profess information, and access to information.[11] Freedom of the press and the right to circulation are also included.[12] Free speech provides protection for all liberties, and it is called the mother of all other liberties.[13] The freedom of speech and expression has a broad meaning and the judiciary plays a crucial role in safeguarding the right.[14]
- Role of the Judiciary
The Supreme Court in India has repeatedly upheld that freedom of speech and expression are essential in a democracy. A law affecting a fundamental right can be held bad for its vagueness and uncertainty.[15] The Court has stated that vague sections in enactments must be struck down as unreasonable and arbitrary.[16] The courts must balance state control and free speech.
- Interpretation of Reasonableness by the Judiciary
All citizens are guaranteed the right to freedom of speech and expression as enumerated in Article 19(1)(a).[17]The freedoms are not absolute, the Constitution imposes reasonable restrictions on grounds such as sovereignty and integrity, friendly relations with foreign states, security of the state, decency or morality, public order or contempt of court.[18] The restrictions can only be imposed by the authority of law and cannot be imposed by executive action.[19] The term “restriction” means regulation and may extend to the limits of total prohibition.[20] However, the limitation imposed on the enjoyment of the right must not be arbitrary or beyond an excessive nature than what is required in the public interest.[21] The restriction must satisfy the test of judicial review under the grounds mentioned under Article 19(2).[22] The legislature’s determination as to what constitutes a reasonable restriction is not final, it is subject to the supervision of the courts.[23] The restrictions that impact the liberty and dignity guaranteed under Article 21, as well, will have a chilling effect on freedom of speech and expression guaranteed under Article 19(1)(a).[24] There might not be any violations under Article 19, but there might be violations under Article 14 of the Constitution,[25] and they must not be arbitrary. The following are the guidelines to determine a test for reasonableness:
- The court has to bear in mind the Directive Principles of State Policy
- The restrictions must not be arbitrary, going beyond the requirements of the interests of the general public.
- The pattern will vary from case to case.
- There must be a just balance between restrictions and social control envisaged by the relevant clause
- A direct nexus between restrictions and the object sought to be achieved must exist.
- The court must look into the social values prevailing whose needs are satisfied by restrictions meant to protect social welfare.
- It must be viewed from the point of the citizen, the problem before the legislature, and the object sought to be achieved.[26]
The proportionality test has also been applied to determine the reasonableness of having a legitimate goal, means of furthering the goal, no disproportionate impact on the right holder and must not be a less restrictive but equally effective alternative.[27]
- Developments in Free Speech
Romesh Thapper v. State of Madras[28]
Facts of the Case: Romesh Thappar, the editor and publisher of a weekly journal, challenged an order by the Madras government that banned the entry and circulation of his journal in the state. The government’s action was taken under the Madras Maintenance of Public Order Act, 1949, citing “public safety” as the reason. Thappar argued that this ban violated his fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution.
Judgment: The Supreme Courtstruck down the Madras government’s order. The Court made a crucial distinction between “public safety” and “public order,” and determined that “public safety” was not one of the “reasonable restrictions” permitted under Article 19(2) of the Constitution.[29] The Court emphasised that freedom of speech and expression is essential for a democracy and can only be restricted on narrow grounds, such as those that undermine the “security of the State.”
This case established that a law restricting freedom of speech on grounds more expansive than those specified in the Constitution is unconstitutional. Following this judgment, the Constitution was amended to include “public order” and “incitement to an offence” as grounds for restricting free speech.
Shreya Singhal v. UOI[30]
Facts of the Case: This case challenged the constitutional validity of section 66A of the Information Technology Act, 2000. This provision criminalised sending “offensive” or “menacing” messages via electronic communication.
Judgment: The Supreme Court struck down section 66A, declaring it unconstitutional. The Court found that the terms used in the provision, such as grossly offensive and annoying, were vague and could be interpreted arbitrarily, thus violating the right to freedom of speech and expression.[31] The Court also highlighted the “chilling effect” that such a vague and overbroad law could have on free speech, as individuals would be hesitant to express themselves for fear of prosecution.[32]
This judgment was a significant victory for online freedom of expression in India, as it differentiated between discussion,advocacy and incitement, reaffirming that the state can only restrict speech on narrowly defined and constitutional grounds.
KS Puttaswamy v. UOI[33]
The Puttaswamy case was a landmark judgment where the Indian Supreme Court declared privacy a fundamental right. The government had argued against this right while defending its Aadhaar project, which collects biometric data. The court unanimously ruled that privacy is essential to the right to life and liberty.[34] This decision is crucial for free speech because a lack of privacy, primarily through government surveillance, can create a “chilling effect” where people are too afraid to express their opinions freely. By protecting privacy, the court strengthened the foundations for a genuinely open and democratic society where people can think and speak without fear of being watched.
Anuradha Bhasin v. UOI[35]
Facts of the Case: This case arose from the internet and movement restrictions imposed in Jammu and Kashmir in 2019, following the abrogation of Article 370. Anuradha Bhasin, a journalist, challenged the indefinite internet shutdown, arguing that it violated the fundamental rights of freedom of speech and expression and freedom to practice any profession or occupation.
Judgment: The Court held that the right to freedom of speech and expression and the freedom to practice any profession or occupation over the internet are constitutionally protected rights under Article 19(1)(a) and 19(1)(g).[36] The Court ruled that an indefinite internet shutdown is illegal and that any order imposing such a restriction must be made public, be temporary, and satisfy the tests of necessity and proportionality.
This judgment established that the internet is a vital medium for exercising fundamental rights and that any government action to restrict access to it must be necessary and proportionate to the threat it aims to address.
Kaushal Kishore v. State of Uttar Pradesh[37]
Facts of the Case: Ministers from the state of Uttar Pradesh and Kerala had made offensive remarks against the victims in a sexual assault incident.Petitions were filed against them for violation of article 21, which provides for right to dignity.[38]
Judgment: The Supreme Court in 4:1 majority held that restrictions provided under Article 19(2) are exhaustive and additional restrictions that are not mentioned under this clause can’t be invoked to restrict rights under article 19(1)(a).[39] Further held that articles 19 and 21 are enforceable even against private individuals and not just the state. The court held that liability arises only when there is actual harm. The statements of a minister can’t make the government collectively responsible. However, the partial dissent by Justice B.V. Nagarathna stated that if statements made by a minister in an official capacity, then the government must be held vicariously liable.[40]
Madhyamam Broadcasting Ltd. v. Union of India[41]
Facts of the Case: The news channel was denied the renewal of its license from the Ministry of Information and Broadcasting as there were concerns about national security from sealed reports.[42] It was stated that the editorial was critical of government policies. The writ in high court of Keralawas dismissed and hence the petitioner approached the Supreme Court.
Judgment: The Supreme Court held that national security can not be used to deny rights without proper evidence. The court further held that criticising the government is not anti-national. In case of confidentiality claims, one must opt for less restrictive alternatives.[43]
Javed Ahmad Hajam v. State of Maharashtra[44]
The Supreme Court quashed an FIR against the petitioner who had posted WhatsApp status calling out the abrogation of Article 370 as black day.[45] The Court held that every citizen has the right to dissent and criticize the State and it is essential in a democracy. Further held that the test for causing public disorder must be based on its effect on a reasonable person and not on someone who is highly sensitive.[46]
Imran Pratapgarhi v. State of Gujarat[47]
The petitioner, a Rajya Sabha MP and a poet had featured a poem “ae khoonkepyasebaatsuno” in the background of an Instagram video.[48] A FIR was registered as it promoted communal enmity and was against the national integrity. The Gujarat High Court had refused to quash the FIR and hence an appeal was filed to Supreme Court. The Court held that poem did not cause any harm and must be judged by a reasonable person. Furtherheld that preliminary enquiry must be conducted to ensure prima facie offence exists or not.[49]
Challenges
Legal Challenges
Sedation was initially introduced to prevent anti-colonial dissent under Section 124A IPC. However, under BNS, under section 152, it has provided broader penal powers under national sovereignty and integrity. There can be a “chilling effect” that such a vague and overbroad law could have on free speech, as individuals would be hesitant to express themselves for fear of prosecution.
Digital Challenges
Social Media: There is a fast dissemination of information on social media, including fake information, and it is easily accessible. These can create unrest and shape opinions.
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021: The Rules have broad powers to check misinformation and others.
Digital Personal Data Protection Act, 2023: The Act, under section 17, has broad powers wherein public authorities are exempt under national security, sovereignty, and public order.
Privacy Challenges
Rapid digitalisation has raised privacy concerns, especially under Aadhaar. A large amount of data is collected, which can be exploited.
Surveillance: Technological advancements have brought various surveillance tools that monitor citizens, violating their privacy rights.
Media Challenges
There is an increasing trend of media censorship and intimidation, defamation faced by journalists. There are instances where, under vague provisions, digital news has been blocked. This inhibits the power of the fourth pillar in a democracy.
Societal Challenges
Hate speech: Hate speech laws aim to prevent communal violence, but they must be carefully enforced so that it does not stifle minority voices and dissenting opinions.
Protests: The recent CAA and farmers’ protests showcased the limitations of public dissent, wherein Section 144 was imposed, where public gatherings were restricted.
Conclusion
Free speech is the cornerstone of a democratic society. The Constitution guarantees the right to free speech, but it is not absolute. The Indian judiciary has been instrumental in protecting free speech, consistently balancing legitimate state interests. So we can say free speech and expression are essential in a democracy, and the judiciary has balanced the right of the people and the state’s interest. The digital age has brought in new laws that need careful judicial oversight. The ongoing issues of censorship, surveillance and restrictions on protests underscore the delicate relationship between the citizens and the state. The future of India depends on a robust and continuous judicial interpretation that upholds constitutional values in a vibrant democracy.
[1]Indian Penal Code, No. 45 of 1860, § 124A (India).
[2]Subhajit Basu & Shameek Sen, Silenced Voices: Unravelling India’s Dissent Crisis Through Historical and Contemporary Analysis of Free Speech and Suppression, 33 INFO. & COMM. TECH. L. 42 (2024).
[3]INDIA CONST.
[4]M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1185 (LexisNexis 2025).
[5]INDIA CONST. art. 19, cls. 1(a) & 2.
[6]T.K. TOPE, CONSTITUTIONAL LAW OF INDIA 141 (3d ed., EBC 2010).
[7]P.K. Tripathi, Free Speech in the Indian Constitution: Background and Prospect, 67 YALE L.J. (1958).
[8]Narayan Chandra Sarangi & Dolly Jabbal, An Analysis of Post-modern Free Expression: A Philosophical Argument for Press Freedom in India in the Era of Digital Revolution, 9 NUJS J. REGUL. STUD. 31 (2024).
[9]J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA 212 (Central Law Agency 2020).
[10]Lowell v. Griffin, 303 US 444(1938).
[11]Narayan Chandra Sarangi & Dolly Jabbal, An Analysis of Post-modern Free Expression: A Philosophical Argument for Press Freedom in India in the Era of Digital Revolution, 9 NUJS J. REGUL. STUD. 31 (2024).
[12]Romesh Thapper v. State of Madras, AIR 1950 SC 124 (India).
[13]Report of the second press commission, Vol I, (India).
[14]P.K. Tripathi, Free Speech in the Indian Constitution: Background and Prospect, 67 YALE L.J. (1958).
[15]KA Abbas v. UOI, AIR 1973 SC 123, (India).
[16]Shreya Singhal v. Union of India, (2015) 5 SCC 1 (India).
[17]INDIA CONST. art. 19, cl. 1(a).
[18]INDIA CONST. art. 19, cl. 2.
[19]Kharak Singh v. State of U P., AIR 1963 SC 1295, (India).
[20]T.K. TOPE, CONSTITUTIONAL LAW OF INDIA 141 (3d ed., EBC 2010); Narendra Kumar v. Union of India, AIR. 1960 SC 430 (India).
[21]Madras Dental College & Research Centre v. State of MP., AIR 2016 SC 2601, (India).
[22]INDIA CONST. art. 19, cl. 2; K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1 (India).
[23]K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1 (India).
[24]Id.
[25]Maneka Gandhi v. UOI, AIR 1978 SC 597, (India).
[26]Pathumma v. State of Kerala, (1978) 2 SCC 1 (India).
[27]K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1 (India).
[28]Romesh Thapper v. State of Madras, AIR 1950 SC 124 (India).
[29]Id.
[30]Shreya Singhal v. Union of India, (2015) 5 SCC 1 (India).
[31]Id.
[32]Id.
[33]K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1 (India).
[34]Id.
[35] Anuradha Bhasin v. UOI, (2020) 3 SCC 637, (India).
[36]Id.
[37]Kaushal Kishore v. State of Uttar Pradesh, (2023) 4 SCC 1, (India).
[38]Id.
[39]Id.
[40]Id.
[41]Madhyamam Broadcasting Ltd. v. Union of India, 2023 SCC OnLine SC 366 (India).
[42]Id.
[43]Id.
[44]Javed Ahmad Hajam v. State of Maharashtra, (2024) 4 SCC 156, (India).
[45]Id.
[46]Id.
[47]Imran Pratapgarhi v. State of Gujarat, 2025 INSC 410, (India).
[48]Id.
[49]Id.
