Author: Shalin Saurav, Lloyd School of Law
To the Point
From Romesh Thapar to Raina and Kamra, the Free Speech Tug-of-War in India is not hidden from anyone. Free Speech is often called the cornerstone of a democratic society. It what gives people the right to question power, express dissent, and hold governments accountable. But what happens when this right begins to clash with the state’s version of “public order” or “morality”? How free is free speech in India really? To answer this, we need to go back to one of the earliest and most foundational cases in Indian constitutional law: Romesh Thapar v. State of Madras (1950). Fast forward to the 21st century, and similar questions are resurfacing – albeit in different forms – with modern-day comedians like Samay Raina and Kunal Kamra being pulled up for exercising their right to speech and satire.
This article aims to analyze the Romesh Thapar case in detail, trace the evolution of free speech in India, and draw parallels with current landscape, particularly focusing on Raina-Kamra incident. The connection is not legally relevant but also socially significant in understanding the state of freedom of expression in contemporary India.
Use of Legal Jargons
To better grasp the legal nuances of cases like Romesh Thapar v. State of Madras and the more recent issues involving Samay Raina and Kunal Kamra, it is essential to understand certain legal terms that frequently appear in constitutional law and judicial discourse.
Freedom of Speech and Expression is a fundamental right guaranteed under Article 19(1)(a) of the Indian Constitution. However, this right is subject to reasonable restrictions under Article 19(2), which allows the state to limit speech in the interests of public order, morality, decency, and other concerns. The term “reasonable restriction” implies that any limitation must be proportionate, justified, and not arbitrary or excessive in nature. The concept of Public Order refers to the maintenance of peace and tranquility in society. In Romesh Thapar, this term was central to the legal argument, as the government attempted to ban a publication claiming it disrupted public order. However, at the time, public order was not a listed ground for restricting free speech, making the government’s action ultra vires, or beyond the legal authority conferred by the Constitution. In the case of Kunal Kamra, the issue revolved around contempt of court, which is the offence of disobeying or disrespecting a court of law. However, critics argue that such provisions are often vaguely defined and prone to misuse, raising questions under the vagueness doctrine, which holds that laws must be clear and precise to avoid arbitrary enforcement. Another key term is the chilling effect, which refers to the discouragement of the of legitimate expression due to fear of legal or social retaliation. Even in the absence of direct legal action, comedians like Raina have faced cancelled shows and online abuse, leading to self-censorship – a real-world manifestation of this chilling effect. Additionally, terms like judicial review (the power of courts to examine the constitutionality of legislative or executive actions), de facto censorship (unofficial suppression of speech through indirect means).
The Proof
In 1950, Romesh Thapar, editor of the leftist journal Cross Roads, found his magazine barred from circulation in the then-State of Madras. The government invoked Section 9(1-A) OF THE Madras Maintenance of Public Order Act, 1949, claiming the publication’s content posed a threat to public order – a concept not yet expressly included in the constitutional text as a ground for restricting speech. Thapar challenged the government’s action, contending that it was ultra vires (beyond the legal powers) of the constitution. The Supreme Court, in a pathbreaking judgement agreed. It held that the impugned section of the Act violated Article 19(1)(a) and could not be saved under Article 19(2), as ‘public order” was not listed among the exceptions at the time.
Justice Patanjali Sastri famously held that:
“Freedom of speech and expression lays at the foundation of all democratic organizations. Without free political discussion, no public education, so essential for the proper functioning of the processes of popular government, is possible”
The judgement laid down a narrow interpretation of permissible restrictions, emphasizing that only those which directly and imminently threaten state security or public decency could be validly imposed. The case became a cornerstone in Indian constitutional jurisprudence, asserting the principle of constitutional supremacy over legislative or executive action.
Now, fast forward to 2025. A group of stand-up comedians including Ranveer, Apoorva and Samay Raina, during a segment of a show, one of them asked a provocative question to a contestant. The clip quickly went viral across the social media. Multiple FIRs were registered in Assam, Mumbai, and other states. Political leaders throughout the nation were condemning it. Samay Raina removed all episodes of his show from the YouTube. Kunal Kamra, known for his sharp political satire and raise critical issues through humor, had previously faced contempt proceedings for tweeting about the Supreme Court’s handling of certain politically sensitive cases. The Raina-Kamra incident may seem like a storm in a teacup to some, but at its core, it’s a test case for how India handles criticism and humor in a digital, post-truth era. The legal basis may have shifted since Romesh Thapar, but the central issue remains: should dissent be silenced under the pretext of maintaining public order?
Abstract
The people censor themselves out of fear of legal or social repercussions, broadly known as “chilling effect” in constitutional law. Whether it’s a journalist in the 1950s or a comedian in 2025, the fear of overstepping an invisible line limits honest expression. The irony is hard to miss: India, which once prided itself on upholding the values enshrined in Romesh Thapar, is now grappling with an ecosystem where comedians are watched more closely than corrupt politicians. The shift from judicial protection to public persecution has been gradual but alarming. What is needed today is not more regulation, but more resilience – by the state, the judiciary, and the public. A democracy should not be so brittle that it shatters at the sound of a joke or the stroke of a pen. The Romesh Thapar case reminds us that the right to offend is part of the right to speak. Similarly, the Kamras and Rainas of our times remind us that comedy can be critique, and dissent can wear a smile. Educational institutions, Bar councils, and Media should revisit landmark judgements and bring constitutional values into the mainstream discourse.
Case Laws and Author’s Point of View
The filing of multiple FIRs in different cities against Raina and his associates as well as Kamra was the deliberate attempt to harass and silence them, said by youths and many open-minded peoples. In TT Antony v. State of Kerela (2001), the Indian Supreme Court ruled that multiple FIRs for the same incident amount to harassment and violate the right to a fair legal process. Similarly, in Arnab Ranjan Goswami v. Union of India (2020), the court quashed multiple FIRs filed in different states, holding that they were an abuse of process.
Satire has historically been one of the most powerful tools of social critique. Satire is meant to provoke thought, challenge social taboos. It further moves towards judicial oversight to prevent content regulations rather than discretionary administrative control.
The recent controversy of Kunal Kamra a renowned satirist. It clearly depicts how a political group or a sect of conservative mindset of people repress an artist and infringe his fundamental rights. Chanting Murdabad (Death Slogans) after the name and giving death threats to an artist is okay but raising critical issues through satire or humor become an amount of culprit activities and criminal charges. In Aveek Sarkar v. State of West Bengal (2014), the Indian supreme court ruled that content must be viewed in its entirety and within the context of modern societal norms. The great philosopher John Stuart Mill, in On Liberty (1859), warned against the “tyranny of the majority”, where public opinion stifles individual thought.
The Indian supreme court, in S. Rangarajan v. P. Jagjivan Ram (1989), held that free speech cannot be suppressed merely because it offends or disturbs certain sections of society. Point of View: Prior certification isn’t even close to the solution. When a government of any country bans something, it is a government-imposed censorship. It is more harmful than its beneficials. Taking examples from the Indian cinemas, Bandit Queens, Lipstick under my burkha, Udta Punjab, Paanch or India’s daughter. These meaningful and sensitive films had to deal with censorship. Whereas vulgar films like Kya kool hai hum, Grand Masti, Hate story, they get a pass quite easily.
Conclusion
India’s journey with free speech is far from over. From Romesh Thapar’s banned publication to Kunal Kamra’s Twitter posts and Samay Raina’s comedic commentary, the questions remain the same: Who decides what’s acceptable speech? How far can the state go in the name of order and respect? And at what cost to the democracy we claim to be? The judiciary must continue to be the torchbearer of constitutional values. The citizen must continue to speak, question, and joke – even when it is uncomfortable. Because that is hoe democracy grow. That is how they heal. That is how they remain free.
Frequently Asked Questions (FAQs)
Why is the Romesh Thapar case being still relevant today?
It set a foundational precedent by affirming that freedom of the press is integral to freedom of expression. Its interpretation of “public order” and constitutional limitations on state power is frequently cited in cases involving censorship, including those against comedians and journalists today.
Why is satire often misunderstood in legal discourse?
Satire uses humor and exaggeration to criticize power, making it a high-risk form of expression in sensitive environments. In India, the lack of clear boundaries between humor and offence often leads to overreach by authorities or vigilante outrage.
How does the Constitution balances free speech with public order and morality?
Article 19(2) allows the government on free speech in the interest of public order, morality, decency, and other concerns. Courts use the doctrine of proportionality to determine whether such restrictions are justified.
