Author : Utsab Sengupta, Siksha ‘O’ Anusandhan National Institute of Law
ABSTRACT
The freedom to voice opposing views is a fundamental right in a democracy. However, political pressure from both the opposition and the ruling government makes it difficult to exercise this right in India. Because of this, many people decide to keep quiet or to be defensive out of concern for possible legal or social repercussions. In the current digital era, social media platforms—once praised as unrestricted forums for public debate—are increasingly being censored, with content frequently being deemed “offensive” without providing a convincing explanation. Who is it offensive to, the public, the opposition, or the government? Nobody really makes it clear. After all, the simplest way to avoid taking criticism directly is to label someone as “offensive.”
Opinions expressed within the constitutional parameters of Article 19(1)(a) should be protected, even though hate speech and defamation must legitimately be controlled. The spirit of constitutional democracy is undermined, and public confidence in democratic institutions is weakened, when dissent is labelled as “anti-national” or criticism of those in power is suppressed. The purpose of this article is to examine the flaws in India’s current interpretation and application of free speech. It attempts to give a more comprehensive view of the brittleness and politicisation of the right to freedom of speech and expression in modern India by highlighting the ways in which legal protections are occasionally disregarded in the name of upholding order.
INTRODUCTION
A thriving democracy is built on its capacity to maintain free discourse, promote the free flow of ideas, and stimulate critical examination of those in positions of authority. Democratic societies develop as a result of this system of dissent and expression, which guarantees their elected officials’ responsiveness, accountability, and transparency. Recent events in India, however, indicate a growing intolerance for opposing viewpoints, particularly those that contradict the prevailing political narrative. Article 19(1)(a) of the constitution guarantees the right to free speech, which extends beyond official political discourse. It includes commentary on social media, artistic expression, interviews, and even comedy or satire.
This range of expression must be maintained in the true spirit of democracy—not just praised when it praises the government and denounced when it criticises it. Regretfully, this ideal is frequently compromised. Expressions of dissatisfaction or opposition are usually met with hostility, censorship, or punitive legal action, even though praise for government policies is encouraged. The controversy surrounding the BBC documentary that questioned Prime Minister Narendra Modi’s involvement in the management of the Gujarat riots in 2002 serves as an example. Instead of permitting public discussion, the government took action to limit its screening in public and academic settings, characterising it as “anti-national” and politically driven. These acts raise questions about whether the State is moving towards repressing dissent in the name of upholding law and order.
On occasion, the judiciary has served as a barrier to prevent these intrusions. In a recent historic ruling, the Supreme Court—represented by a bench that included Justices Abhay S. Oka and Ujjal Bhuyan—stated that every citizen has the right to criticise any government action, including landmark rulings like the repeal of Article 370. The Court underlined that discontent with the State is a democratic right and not a crime or a threat to sovereignty. An FIR filed in Kolhapur, Maharashtra, against a barber who sent Independence Day greetings to Pakistan prompted the application of this principle. Despite being contentious, the Supreme Court’s intervention highlighted an important reality: in a democracy, even uncomfortable or unpopular viewpoints must be protected, lest the very basis of free expression be undermined.
USE OF LEGAL JARGON
Article 19(1)(a) of the Indian Constitution guarantees citizens the fundamental right to freedom of speech and expression, which includes the ability to criticise the government and its policies. In a constitutional democracy, where dissent serves as a check on majoritarianism and executive overreach, this right is essential. Article 19(2), which allows the State to impose limitations in the interests of public order, decency, sovereignty and integrity of India, and other specified grounds, does, however, allow for reasonable restrictions on this right. The courts have repeatedly ruled that these kinds of restrictions must adhere to the principles of proportionality, which guarantee that the restrictions are least restrictive, necessary, and serving a justifiable purpose.
In defending this right, Indian courts have been crucial. In the 2015 case of Shreya Singhal v. Union of India, the Supreme Court declared Section 66A of the IT Act unconstitutional, ruling that ambiguous terms like “grossly offensive” could be abused to stifle dissent and restrict free speech. In a similar vein, the Court has confirmed in recent observations that speech that is controversial or unpopular is protected as long as it does not incite violence or disrupt public order. Notwithstanding this body of precedent, there has been an increasing trend to use criminal laws against critics, journalists, and comedians, such as sedition (Section 124A IPC), defamation, or contempt of court.Such acts raise grave concerns about the abuse of state power, even though they are frequently justified as matters of national interest.
Therefore, even though the law acknowledges the right to criticise the government, the current political environment still has a significant impact on how the law is actually applied.
PROOF
Even though the Indian Constitution protects the right to free speech and expression, there have been several incidents that point to a growing trend of stifling criticism and dissent. Threats against public figures and internet shutdowns are examples of actions that violate fundamental human rights in addition to undermining democratic values. Internet blackouts, which are frequently enforced under the guise of upholding law and order, have become more frequent in India. However, in Anuradha Bhasin v. Union of India (2020), the Supreme Court of India ruled that such shutdowns could not be arbitrary and had to pass the proportionality and necessity tests. Nevertheless, an internet outage that lasted almost 80 days coincided with the Manipur incident in early 2023, in which a woman was viciously gang-raped and killed.
The public was consequently kept in the dark for weeks, which raised serious questions regarding state transparency and the censorship of important information. Another concerning instance involved comedian Kunal Kamra, who came under fire for calling Maharashtra Chief Minister Eknath Shinde a “traitor.” After that, Thane political party members threatened Kamra’s life, burned Kamra’s pictures, and damaged public property. Political actors’ violent and illegal response, regardless of whether his statement was considered offensive, shows a dangerous decline in tolerance in public discourse.
Additionally, it has become a concerning trend to label opposing viewpoints as “anti-national.” Diverse beliefs are unavoidable in a pluralistic society like India. However, constitutional democracy and the freedom of expression guaranteed by Article 19(1)(a) are undermined when any opinion that deviates from the prevailing narrative is met with indignation or repression. Together, these incidents show how democratic values are undermined when criticism is met with animosity rather than discussion.
CASE LAWS
Union of India v. Shreya Singhal (2015)
Reference: (2015) 5 SCC 1 Section 66A of the Information Technology Act, which made sending “offensive” messages via electronic communication illegal, was overturned in this historic ruling. The case started when two women were taken into custody for posting on Facebook that questioned the Mumbai bandh after the death of Shiv Sena leader Bal Thackeray. Legitimate criticism and satire were suppressed when the Supreme Court declared that Section 66A was unconstitutional, ambiguous, and overbroad. The Court explained that unless speech incites violence or violates Article 19(2), it cannot be restricted based solely on annoyance or discomfort. This case was significant because it established a precedent that political criticism, humour, and online public discourse are protected under Article 19(1)(a) making it milestone in India’s digital free speech jurisprudence
Union of India v. Vinod Dua (2021)
Reference: SCC OnLine SC 414 (2021) In this instance, senior journalist Vinod Dua was charged with sedition and inciting hatred after he expressed disapproval of the government’s response to the COVID-19 pandemic in a YouTube video. The FIR was filed by a local BJP leader. The Supreme Court dismissed the charges, ruling that, unless it provokes violence or public unrest, criticism of government policy—no matter how severe—does not qualify as sedition. The Court reaffirmed that the sedition law cannot be used to suppress dissent by relying on the principle established in Kedar Nath Singh v. State of Bihar (1962). The idea that political criticism and press freedom are essential in a democracy was reaffirmed by this case, and harassment through criminal law is unconstitutional
The 2018–2021 Kishorechandra Wangkhem Case
Manipur High Court, numerous petitions Manipur journalist Kishorechandra Wangkhem was arrested multiple times under the National Security Act (NSA) and charged with sedition for posting critical remarks about the state’s chief minister and the BJP-led government on social media. Despite using strong language, his Facebook videos did not encourage violence or disturbances in the public. He was held for months in spite of this, which raised concerns about the capricious application of preventive detention. He was eventually given bail by the courts, but the abuse of the NSA exposed how political speech, particularly criticism of influential people, can be made illegal by sweeping and ambiguous legislation. This case came to represent the way that free speech in India can be restricted at the expense of due process, particularly when authority is unbridled.
State of Madhya Pradesh v. Munawar Faruqui (2021)
Authority: Petition for Special Leave of the Supreme Court During a stand-up show in Indore, comedian Munawar Faruqui was arrested on suspicion of planning to make derogatory remarks about Hindu deities and political figures, including Home Minister Amit Shah. The police acknowledged they had no proof, so there was no real joke. However, he was imprisoned without a trial for almost a month. Due to a complete lack of relevant evidence and a breach of procedural safeguards, the Supreme Court granted him bail. This case demonstrated how police power, religious offence laws, and public sentiment can be abused to stifle artistic expression. It highlighted how the presumption of innocence and the freedom of speech protected by Article 19(1)(a) can be compromised by political pressure and intolerance.
The 2020 Kunal Kamra Contempt Notice
Supreme Court of India jurisdiction (no official ruling; AG agreed to contempt proceedings) After making satirical remarks on Twitter accusing the Supreme Court of favouring journalist Arnab Goswami, comedian Kunal Kamra was found in contempt of court. Some politicians and attorneys were outraged by his tweets. Although the remarks were part of public criticism rather than a formal disruption of judicial proceedings, the Attorney General gave permission to start contempt proceedings. Even though there was no conviction, the case sparked a national discussion about the boundaries of free speech, satire, and judicial criticism. It sparked worries that using contempt jurisdiction against comedians and artists might stifle reasonable criticism, undermining democratic dialogue and the constitutional right to challenge establishments, including the judiciary
CONCLUSION
India has long been praised for its diversity, tolerance, and rich cultural heritage. Throughout history, the nation’s diversity—in terms of religion, language, caste, and ideology—has been evidence of its democratic vitality. However, narratives of political rigidity and cultural superiority are progressively overshadowing this celebrated diversity in recent years due to the rise of sectarian politics and ideological polarisation. Because of this change, dissenting opinions are now frequently silenced and labelled as “offensive,” “anti-national,” or disruptive. These strategies are used to further the narrow political agendas of those in authority as well as to stifle criticism.
In,so far as it does not incite violence or unlawfully defame, this directly violates the spirit of Article 19(1)(a) of the Indian Constitution, which guarantees freedom of speech and expression, including the right to dissent, protest, and critique government policies. The government is answerable to the people in any functioning democracy, and their complaints must be addressed rather than taken advantage of or made illegal. “If our democracy is to flourish, it must have criticism; if our government is to function, it must have dissent,” as Henry Steele Commager so eloquently stated. The democratic foundation is weakened and public trust is undermined when criticism is suppressed. It is necessary to recognise that the freedom to express complaints, hold nonviolent demonstrations, or even parody leaders is a fundamental democratic practice.
Independent media, a robust opposition, and an engaged civil society are not dangers; rather, they are essential components of a robust democracy. It is precisely because dissent is valued rather than feared that developed democracies flourish. Sadly, India’s overworked judiciary delays justice and deters many people from claiming their rights. Policymakers, the media, the government, and opposition leaders must all pledge to protect free speech and democratic values if we are to make progress. Only then will India be able to fulfil its original goal of becoming a country that proudly stands as a beacon of “unity in diversity,” thriving not by stifling difference but by embracing it.
FAQS
Is there complete freedom of speech in India?
– No. While freedom of speech is guaranteed by Article 19(1)(a), reasonable restrictions in the interest of public order, security, or decency are permitted by Article 19(2). These limitations must not, however, be abused to stifle reasonable objections or dissent.
2. Can voicing disapproval of the government result in legal action?
– Unless it provokes violence or hatred, criticism by itself cannot lead to legal action. Courts have ruled time and time again that dissent, no matter how severe, is constitutionally protected and is not the same as defamation or sedition.
3. Is it acceptable and lawful to shut down the internet?
– Only when internet shutdowns satisfy the requirements of proportionality and necessity are they permitted. Since arbitrary shutdowns infringe upon the right to free and fair access to information, the Supreme Court requires regular review and transparency.
4. Are comedy and satire protected by law?
– Indeed. Free speech protects comedy, parody, and satire as long as they don’t incite hatred or defamation. Political jokes directed at comedians endanger free speech and artistic expression.
5. Why does free speech depend on opposition?
– A robust opposition protects civil liberties and holds the government responsible. The balance of democracy is threatened when its voice is silenced. Debate, reform, and making sure that no authority is left unquestioned all depend on dissent.
