Author: Cheshta Vashishtha
College: Narsee Monjee Institute of Management Studies, Chandigarh
Introduction
Once people needed all the things a printing press, a newspaper column or a TV studio to speak into a mass audience. In today’s world, a cell phone will suffice.
Freedom of expression is no longer a right that is primarily used in traditional institutions, but is used by almost everyone because of the digital revolution. A student can criticise a government policy using the platform X, a comedian can reach millions of people on YouTube without having to set up a newsroom, a journalist can publish without a newsroom and a normal citizen can make a post that suddenly becomes ‘nationally consequential’ in a matter of hours.
The Internet has accomplished a great deal for the democratization of speech. It’s also one of its constitutional challenges.
It is not simply a question of whether or not a citizen can talk. The more difficult one is: When is protected expression “legally regulable conduct”?
The constitutional solution to India’s problem starts with Article 19(1)(a) of the Constitution which guarantees people freedom of speech and expression. However, in the same way, this freedom is subject to the reasonable restrictions set out in Article 19(2). The difficulty is putting the constitution made in 1950 into a digital world where everything is virile, anonymous, algorithmic, trendsetting, artificial intelligence and digital permanent.
This has been brought to the fore in recent controversies over India’s Got Latent, involving both Ranveer Allahbadia and Samay Raina. Taking note of the efforts by all the comedians, including Raina, to address the issue of awareness and social responsibility, the Supreme Court dismissed the criminal proceedings arising out of the controversy on 14 August 2026.
The development isn’t important because it establishes there is no limit on freedom of expression in the online world in certain circumstances, it’s important because it shows how difficult it is to draw a principled line between freedom of expression and social responsibility and criminal liability.
The law, therefore, has to address a seemingly simple question:
What is the maximum level of offence that a democracy can endure before it is permissible for the State to step in?
The “Right to Speak” Is Not a “Right to Approval”: I. Article 19(1)(a). The “Right to Speak” Is Not a “Right to Approval”: I. Article 19(1)(a).
Freedom of speech and expression is a right protected by article 19(1)(a). This guarantee has been broad in scope as it is essential to the democratic framework of India.
Freedom of speech is not restricted to opinion that is popular or agreeable, but it is protected for criticism, dissent, satire and unconventional ideas. In a constitutional democracy, it is not necessary for the social approval of all citizens to be gained before an opinion can be expressed.
Concurrently, the Constitution acknowledges that speech can sometimes do harm that is cognisable by law. Article 19(2) therefore, allows reasonable restrictions in the interests of the sovereignty and integrity of India, security of the State, public order, decency or morality, contempt of court, defamation and incitement of an offence.
This makes an important constitutional difference.
Whether or not speech is offensive is not the question. The issue is whether this restriction placed on it would be consistent with Article 19(2) and meet constitutional requirements of reasonableness and proportionality.
Social outrage can form quickly in the online world, even faster than a legal analysis, and this is where this difference is crucial. There can be thousands of complaints that seem to come in in a couple of hours. But the number of people who are offended can not, by itself, establish a new exception to article 19(1)(a).
Otherwise, the constitutional standard would be:
The more people are offended the less freedom the speaker has.The principle would have the fundamental rights follow the whims of the people.
II. The Internet now constitutes a constitutional medium.
In the recent past, the Supreme Court had held that the Constitution does not provide any specific definition for ‘digital’ in Anuradha Bhasin v Union of India (2020), significantly contributing to the discourse on digital constitutional adjudication in the country.
The case was triggered by curbs on communication and internet usage in Jammu and Kashmir after the details of the incidents of August, 2019. The Supreme Court acknowledged that the medium of the internet falls under the ambit of freedom of speech/expression under Article 19(1)(a). It also ruled that it was not permissible to suspend the internet services indefinitely, and that restrictions should meet the criteria of proportionality.
Anuradha Bhasin has an importance beyond internet shutdowns.
The ruling is part of a constitutional principle that is broader than the one at stake here: the form in which a right is asserted does not mean that the right itself does not exist.
The digital copy of a newspaper article is not automatically unprotected speech due to the fact that it can be seen by 10 million people versus 10 thousand.
While criticism of a political figure is constitutionally protected if it is given at a public meeting, it is not necessarily constitutionally unprotected because it is expressed on social media.
The internet should thus not be considered as a constitutional void.
III. Shreya Singhal – The Case that Changed Digital Free Speech
Shreya Singhal v. Union of India (2015) is a case that should not be missed from the list of any discussion on free speech in India.
The case was against the Section 66A of the Information Technology Act, 2000. Amongst other things, communications were criminalised that were grossly offensive, annoying, inconvenient or insulting.
Supreme Court had thrown out Section 66A completely.
Vagueness was one of the main issues that the Court came across. Words like ‘annoyance’ and ‘inconvenience’ were vague and might be used to prosecute as many expressions as were deemed ‘inconvenient’ and ‘annoying’. The provision was also not in the grounds referred to in Article 19(2).
More importantly, the Court made a distinction between discussion, advocacy and incitement, that was constitutional.
Talking about things you don’t like may be difficult.
Advocacy can sometimes be controversial.
However, once expression crosses the constitutional rubric into incitement then the power of the State to regulate expression becomes significantly enhanced.
This is an important point to keep in mind in today’s digital world.
If any and all controversial tweets, memes, jokes or videos could be criminalised because they were deemed “offensive” by someone, then Section 66A’s constitutional issue will be back in a new guise.
So, the lesson that Shreya Singhal has left us is a well-knownone:
A democracy should never have laws targeting “uncivil” speech because it offends them.
IV. Comedy and Constitutional Responsibility is the India’s Got Latent Controversy.
India’s Got Latent has sparked controversy regarding how the principles can be applied to today’s content creators.
In February 2025, YouTuber and podcaster Ranveer Allahbadia showed up on the show and made a pornographic and sexually explicit statement. This led to disturbances amongst the public, various complaints to the police and subsequent charges.
The Supreme Court then stepped in and ordered Allahabadia not to be arrested till the case was heard.
The controversy eventually spread from the initial comments. Complaints made over the allegedly insensitive jokes targeting persons with disabilities and a rare genetic disorder. The Supreme Court addressed the larger issue of how online creators are to deal with content that impacts vulnerable groups. The Court in August, 2025 ordered Samay Raina and other comedians to issue unconditional apology for comments made against people with disabilities and spoke about the need for guidelines on online speech.
The Court’s comments that were made during the proceedings, brought a new constitutional conflict between Article 19 and Article 21.
The right to dignity is also part of the fundamental right to life and personal freedom as guaranteed under Article 21. For this reason, the right to freedom of expression cannot be considered as a right that outweighs all other competing constitutional interests.
However, it is also crucial that the opposite is true:
Article 21 cannot be used as a blanket regulation to ban all types of speech which are “degrading” or “offensive” to another.
There must still be a legally established basis for State interference.
V. The August 2026 Supreme Court Development: An Important Constitutional Cue
The latest news adds to the intrigue of the debate.
The Supreme Court, on 14 August 2026, struck down the criminal proceedings against Samay Raina and four other comedians for making insensitive comments about the PWD fraternity in the India’s Got Latent controversy. The Court noted the subsequent steps taken by the respondents such as awareness and support measures for persons with disabilities.
The decision is important because it does not apply the “one-to-one” concept of “offensive speech” to criminal law.
When dealing with controversial speech there is at least three possible routes to take:
Take care of it as a fully protected expression.
Secondly, consider it as criminal activity.
Third, be aware that Social Judgement, Restorative Response and civil/corrective action might be more fitting than criminal charges.
Consideration should be given to the third method.
The State’s most strict means of action is criminal law. When such a joke that was once a controversy and a subject of usage is subjected to police investigation and prosecution for several slander offences, the matter isn’t only for the fact that the joke was not appropriate or funny.
It results in a question of proportional use of State power being a constitutional question.
The recent ruling, then, is an opportunity to rethink if the criminal approach should be state policy when fighting offensive and provocative digital expression.
VI. The difference between criminal and offensive speech,
It is this difference that is at the core of the debate.
All that is immoral is not illegal.
Not all of the entities that offend are criminal.
The State can’t punish anything that is socially unacceptable.
There are already certain situations that are covered under Indian law where the speech could legitimately warranted by the consequences. This includes threats, obscenity (in some forms), defamation and other specific acts of law which prohibit such behavior.
The problem is that such unquantifiable terms as “hurt sentiments” or “indecency” or “offensiveness” can be stand-ins for the requirements of the statute. It is important to remember, here, the Supreme Court’s decision in S. Rangarajan’s case versus P. Jagjivan Ram, 1989. The Court saw the significance of free speech and found that the suppression of speech was not appropriate because they anticipated that audiences, who were hostile, may respond violently.
It should thus be up to the State to set the basis for restriction in the Constitution. Otherwise, he/she is the lawmaker.
VII. The issue of obscenity and the notion of context. The concept of obscenity and the place of context.
Digital speech also presents some hard questions relating to obscenity.
In the recent case of Aveek Sarkar v. State of West Bengal (2014), the Supreme Court abandoned the strict Hicklin standard and held that more modern community standards and context in which the works in question are considered can be taken into account.
This is even more significant in an electronic setting.
A short performance fragment may be filmed from a longer performance.
Normally a satirical statement can be detached from its surrounding context so that one can focus on it without getting attached to the detailed context.
A fanciful character of a comedian’s can be interpreted as his/her personal belief about the creator.
Educational notes can be transmitted by a meme, without the explanation itself.
It is therefore necessary for there to be a context within the legal inquiry. A law that merely examines the “very worst” sentence in a digital expression sets up a “screenshot jurisprudence” where constitutional interpretation is based on the “worst” part of the message displayed on a computer screen.
VIII. Social Media Platforms: The new Constitutional Gate Keepers!
The problem goes beyond the boundaries of the State.
Now private platforms have thus become extremely powerful when it comes to speech.
The decision of what content is recommended, demonetised, restricted, labelled and removed is made by social-media companies. Their algorithms decide which expressions are able to be visible and which become digitalise.
Under the term “intermediary safe harbour” in Companies House, Section 79 of the Information Technology Act offers protection to the intermediaries, on condition that certain statutory criteria are met. Additionally, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 lays down other obligations on intermediaries, all according to due diligence.
The regulatory system has been continually developed. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2026 have added new obligations regarding compliance/filtering of intermediaries and certain types of content.
It’s clear that a policy dilemma exists.
Too much immunity on platforms can lead to the growth of negative content.
However, giving them a high degree of liability could give them the incentive of removing legal material in order to escape liability.
This puts the risk of private censorship which could be the result of an over-compliant actor.
The solution must then be to moderate, notify, provide reasons, and have grievance systems in place that are both accessible and meaningful, and above all, it must be transparent — not increased to the pain level of schools.
IX. How Protectionism Affects Farmers’ Markets: A Government Regulation F&D Coup de Main.
The State has even more constitutional problems with regulating online speech due to its ability to coerce.
You can delete a post from a platform!
The State has the power to prosecute him/her.
The distinction matters.
For instance, India’s experience with Section 66A makes it clear how problematic it is for speech control measures to be not specific. It is for this reason that in Shreya Singhal, it had to be eliminated – because that very same meaning is achieved when categories are broad and undefined.
In recent years, court challenges to government interference with content have remained on the frontlines of the free expression vs. fighting misinformation debate. The problem is particularly acute in a context in which it is the government itself that is the institution which decides if criticism is to be deemed “false” or if it is “objectionable”.
Governments have an “obvious interest” in reducing real misinformation, especially one that poses a risk to the public’s peace and safety.
But the State shouldn’t be the last to judge itself.
One thing is for sure: a democracy can never have a constitutional framework such that it explicit allows the people to criticize it, as long as they do so in a way they like!
X. Pupil Rights to Freedom of Speech in Schools: The Constitutional Test – Five Questions Before Speech is Restricted.
Absolute freedom, as well as absolute regulation is not necessary for India. It must be governed in a way that is based on principles.
There should be five questions asked before stopping the expression on the Internet.
2. Do any of the principles of sovereignty apply?
The limitation shall have to be from law. A lack of clear statutory guidance is no substitute for good judgment by the executive.
2. Is the restriction of this kind an “added level of restriction” as envisaged in Article 19(2)?
Specific constitutional basis for the restriction must be determined by the State.
3. Does actual harm exist, is there an identifiable and real harm?
Generally, there should be no less than offense, embarrassment or disagreement.
4. Is the restriction justified and suitable?
The State should take the least restrictive measure which will be effective. The go-to option should NOT be a criminal prosecution.
5. Do reasonable procedural safeguards exist?
There should be reasons – notice there if any; there should be judicial remedies available for review.
Both sides need to be respected in the constitutional equation: The Speakers freedom and the dignity of the person involved.
XI. Freedom of Speech Will Not Suffice.
But there is another aspect which cannot be addressed by the law.
There is a social responsibility, and the freedom granted under the Constitution does not take away the social responsibility.
There’s a legal right to a joker to make a joke, and there’s an audience right to the capacity of condemning it. An opinion submitted by a journalist which is controversial can be lawfully published, although the accuracy of that opinion may be challenged by the readers. A politician(s) can attack opponents, but the citizens can vote against the rhetoric at a vote.
This is where “legal censorship” and “social accountability” differ.
Mature Democracy does not demand the State to resolve all ‘offensive speech’ conflicts.
At times, more speech is the right answer when it comes to bad speech.
Criticism.
Debate.
Boycott.
Fact-checking.
Counter-speech.
Public disagreement.
Facilitate the use of the criminal law as a tool of last resort.
Similarities and Contradictions: The Line Must Be Drawn by the Constitution, Not by Outrage
Freedom of speech is stronger and weaker in the digital age.
More powerful because, everyone can talk to millions.
This is easier to do on any platform, as anyone can be reported, targeted, de-platformed and even prosecuted in mere few minutes.
The situation in India is a conflict that is set in their constitution. Article 19(1)(a) includes the protection of expression. Article 19(2) allows for narrowly drawn limitations. Shreya Singhal speaks out against general criminalisation. Anuradha Bhasin understands the importance of the internet from a constitutional perspective. Courts should not forget the context, Aveek Sarkar reminds them. In fact, it has become clear that courts, in leading the way in the brave new world of ‘Digital Expression’, have to ensure liberty and dignity, with responsibility. And the recent India’s Got Latent shows that digital expression is now every increasingly an area where courts must exercise a balance of liberty, dignity and responsibility.
Nothing that couldn’t have any consequences would be freedom of speech.
The other error would be equally deadly: thinking that constitutional freedom ends where speech offends is making.
A democracy will not guarantee that “citizens won’t be offended. It can however, guarantee them liberty from “arbitrary” punishment by the State.
The line should not therefore be drawn at points of discomfort.
It should be drawn in a way that is based on legally recognised harm, based on the law, takes into account context and only with measures that are necessary and proportionate.
There is no need for a new Constitution for the internet.
It calls for implementation of old constitutional values in new ways.
Whether India is dedicated to free speech will not come down to whether it protects polite speech.
It will be if it can hold up an unpopular, uncomfortable and provocative speech while not hurting dignity, equality and individual rights.
Difficult balance indeed,
That’s the deal struck in the Constitution.
But in the digital era the right to free expression must be balanced by the duty to regulate, not become consumed by it.
