Judicial Overreach and Free Speech

Context

1. The Supreme Court’s proceedings in Ranveer Allahbadia vs Union of India and connected cases raised concerns about the judiciary’s role in shaping online speech regulation.
2. These observations triggered a debate on whether judicial interventions themselves could endanger the constitutionally guaranteed freedom of speech.

Freedom of speech in the constitutional framework

1. Article 19(1)(a) guarantees freedom of speech and expression.
2. Article 19(2) permits restrictions only on explicitly listed grounds such as sovereignty, security of the State, public order, decency, morality, defamation, and incitement to an offence.
3. The Supreme Court’s constitutional role is to review the validity of restrictions, not to design or advocate new regulatory frameworks.

Existing legal and regulatory framework

• IT Act, 2000:
  • Section 67 – obscenity
  • Sections 66, 66E – cyber offences and privacy violations
  • Section 66F – cyber terrorism
• Bharatiya Nyaya Sanhita (BNS): Sections 294, 295, 296 penalise obscenity-related offences.
• IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021:
  • Provide Central government oversight.
  • Impose prior restraint through vague standards such as “due caution and discretion” in matters involving religion or beliefs.
• These laws already regulate online speech, though many are criticised as excessive or vague.

Why the Supreme Court’s Approach Raises Constitutional Concerns

• Judicial expansion of case scope
  • The original case concerned challenges to FIRs alleging obscene content.
  • On March 3, 2025, the Court expanded the scope to examine broader online content regulation, despite this not being the subject matter of the petition.
• Separation of powers
  • Identifying regulatory needs lies within the legislative domain.
  • In Common Cause v. Union of India (2008), the Court cautioned against courts solving policy problems beyond their institutional competence.
• Risk of prior restraint
  • Judicial endorsement of stricter regulation may legitimise pre-censorship, historically viewed as constitutionally suspect.
• Institutional limitations
  • Courts lack technical expertise in evolving areas such as digital media regulation.

Judicial precedents on restraint and free speech

• Sahara India v. SEBI (2012):
  • A Constitution Bench held that pre-censorship must be avoided.
  • Postponement orders are permissible only as a last resort and must meet a high standard of reasonableness.
• Kaushal Kishor (2023):
  • Held that the grounds under Article 19(2) are exhaustive.
  • No additional restrictions can be imposed under the guise of competing fundamental rights.
• Adarsh Co-operative Housing Society (2018):
  • The Court refused to direct filmmakers to add disclaimers, recognising that such decisions lie with statutory bodies, not courts.

Constitutional role of the Court

1. Constituent Assembly Debates (December 1, 1948) clarify that the Supreme Court is the final arbiter of reasonableness, not a law-maker.
2. Constitutional propriety requires judicial abstention from proposing or deliberating on new restrictions affecting citizens’ freedoms.

Comparative Global Practice

• European Union (Digital Services Act, 2022): Focus on content removal mechanisms.
• Germany (Network Enforcement Act, 2017): Ensures swift takedown of unlawful content without prior censorship.
• United Kingdom (Online Safety Act, 2023) and Australia (Online Safety Act, 2021):
  • Emphasise post-publication accountability and fines for non-compliance.
• Authoritarian regimes (China, Russia):
  • Use surveillance and pre-censorship.
• Academic research warns that courts can be co-opted in democratic erosion through “abusive judicial review.”

Implications

1. Threat to free speech: Judicial advocacy for stringent laws may legitimise overbroad restrictions.
2. Erosion of separation of powers: Courts risk entering legislative and policy-making domains.
3. Normalisation of prior restraint: Could chill speech and dissent.
4. Democratic backsliding risk: Excessive regulation may align India with illiberal global practices.
5. Citizen trust deficit: Perception of shrinking freedoms undermines constitutional faith.

Challenges and Way Forward

Conclusion

Freedom of speech is the foundation of constitutional democracy. While digital harms are real, constitutional discipline demands that regulation remain within Article 19(2) and legislative competence. The Supreme Court’s legitimacy lies in acting as a constitutional umpire, not a regulator-in-chief. Judicial restraint, not expansion, is essential to preserve liberty in the digital age.