Context

• Freedom of speech is a foundational pillar of democracy, ensuring dissent, accountability, and the exchange of ideas.
• Recent proceedings of the Supreme Court of India, particularly in RanveerAllahbadia v. Union of India and allied cases, have raised concerns that judicial interventions themselves may endanger free expression.
• Recently, the Court questioned the adequacy of existing regulatory bodies for online content and suggested the creation of neutral, autonomous authorities along with draft regulatory guidelines.
• These developments raise serious constitutional questions regarding separation of powers and judicial restraint.

Existing Legal Framework and Regulatory Saturation

• India already has an extensive legal framework regulating speech, including online expression.
• The Information Technology Act, 2000 penalises obscenity, privacy violations, cyber terrorism, and computer-related offences through Sections 66, 66E, 66F, and 67.
• Similarly, Sections 294, 295, and 296 of the Bharatiya Nyaya Sanhita criminalise obscene and offensive conduct.
• In addition, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 impose oversight mechanisms and obligations on digital publishers.
• These Rules have been criticised for overreach and prior restraint, particularly provisions requiring publishers to exercise “due caution and discretion” when addressing religious or racial issues.
• Given this already dense regulatory environment, further restrictions risk compounding censorship rather than addressing regulatory gaps.

Judicial Overreach and Expansion of Scope

• A core concern arises from the nature of the case itself. The matter originally involved challenges to FIRs filed against individuals accused of publishing improper or obscene content.
• Online content regulation was not the original subject matter. Nevertheless, in proceedings dated March 3, 2025, the Court expanded the scope to examine regulatory measures to prevent content offensive to well-known moral standards of our society.
• This expansion raises constitutional red flags. Determining societal morality and designing regulatory frameworks fall squarely within the legislative domain.
• The Supreme Court has previously cautioned against such overreach. In Common Cause v. Union of India (2008), the Court acknowledged that certain problems lie beyond judicial capacity.
• Online media regulation involves technical expertise, evolving norms, and democratic deliberation, areas where courts face inherent institutional limitations.

Regulation versus Unlawful Restraint

• The line between reasonable regulation and unconstitutional restraint is extremely thin.
• In Sahara India Real Estate Corp. Ltd. v. SEBI (2012), a five-judge Bench strongly cautioned against pre-censorship, holding that it must be avoided at all costs.
• Even postponement orders on court reporting were permitted only as a last resort and subject to strict standards of necessity and proportionality.
• Judicial encouragement of stricter laws risks crossing this line, potentially legitimising prior censorship and statutory gag orders, especially in the fast-evolving digital sphere.

Constitutional Limits under Article 19(2)

• The Constitution clearly defines the permissible limits on free speech. Article 19(2) exhaustively lists grounds such as sovereignty, security of the State, public order, and defamation.
• In Kaushal Kishor v. State of Uttar Pradesh (2023), a five-judge Bench reaffirmed that no additional restrictions beyond those expressly mentioned in Article 19(2) are constitutionally permissible.
• The Court categorically held that restrictions cannot be expanded under the guise of competing fundamental rights or vague moral considerations.
• This constitutional clarity leaves no scope for judicially inspired expansion of speech restrictions.

Judicial Self-Restraint and Constitutional Propriety

• The Supreme Court has previously demonstrated restraint in matters of expression.
• In Adarsh Co-operative Housing Society Ltd. v. Union of India (2018), the Court rejected a plea to direct filmmakers to add disclaimers, holding that such decisions fall within the jurisdiction of the Censor Board, and only after hearing affected parties.
• This approach aligns with the constitutional vision. During the Constituent Assembly Debates, it was emphasised that the Supreme Court’s role is to adjudicate the reasonableness of restrictions, not to initiate or design them.
• Article 19 envisages the Court as a constitutional umpire, not a law-maker.

Comparative Perspectives and Democratic Backsliding

• Comparative democratic practice underscores the risks of overregulation.
• The European Union, Germany, the United Kingdom, and Australia focus primarily on content removal and penalties for non-compliance, rather than prior censorship.
• In contrast, authoritarian regimes such as China and Russia rely heavily on surveillance and pre-censorship.
• Scholarly research by David Landau and Rosalind Dixon demonstrates how courts can become instruments of democratic erosion when aligned with authoritarian impulses, intentionally or otherwise.

Conclusion

• Judicial calls for stringent online content regulation, coupled with executive acquiescence, pose a serious threat to free expression.
• While regulation of harmful content is necessary, constitutional propriety demands judicial restraint.
• The Supreme Court must confine itself to evaluating the constitutionality of laws, not advocating their creation. As Salman Rushdie observed, Free speech is the whole thing, the whole ball game.
• Safeguarding it requires vigilance not only against legislative and executive excesses, but also against judicial overreach.