Courts must protect, not regulate free speech

The Hindu: - Published on 15 December 2025

WHY IN NEWS

Recently, during hearings in Ranveer Allahbadia vs Union of India, the Supreme Court raised concerns about unregulated online content and suggested the creation of neutral autonomous bodies for digital content regulation. The Court also questioned the effectiveness of existing self-regulatory mechanisms and asked the government to publish draft regulatory guidelines for public consultation. This intervention has sparked debate on judicial overreach, prior restraint, and the constitutional limits of regulating free speech.

EXISTING LEGAL FRAMEWORK FOR SPEECH REGULATION

India already has a comprehensive statutory framework to regulate speech: -

• The Information Technology Act, 2000 addresses cyber offences such as hacking, privacy violations, cyber terrorism and obscenity.
• The Bharatiya Nyaya Sanhita, 2023 deals with offences related to obscenity and hurting religious sentiments.
• The Information Technology Rules, 2021 prescribe intermediary guidelines and a digital media ethics code, including grievance redressal mechanisms for online content.

A major concern is that the IT Rules, 2021 introduce elements of prior restraint by requiring publishers to exercise “due caution” while publishing content. Such vague standards risk chilling free speech. In Anuradha Bhasin vs Union of India (2020), the Supreme Court held that restrictions on speech must satisfy the proportionality test.

JUDICIAL OVERREACH AND EXPANSION OF SCOPE

The present case reflects a gradual expansion of judicial intervention. Initially confined to FIRs against alleged obscene content creators, the scope was widened in March 2025 to examine broader regulation of offensive broadcasting. In November 2025, the Court went further by suggesting autonomous regulatory bodies. This raises concerns regarding violation of the doctrine of separation of powers. In Common Cause vs Union of India (2008), the Supreme Court cautioned that courts cannot assume legislative functions. Courts also lack specialised technical expertise to design digital content regulation frameworks.

CONSTITUTIONAL LIMITS UNDER ARTICLE 19

• Article 19(1)(a) guarantees freedom of speech and expression, while Article 19(2) permits restrictions only on specific and exhaustive grounds such as sovereignty and integrity of India, security of the state, public order, decency and morality, contempt of court, defamation, and incitement to an offence. No additional grounds can be added through judicial or executive action.
• In Kaushal Kishor vs State of Uttar Pradesh (2023), a five-judge bench held that the grounds under Article 19(2) are exhaustive. In Sahara India Real Estate Corporation (2012), the Court ruled that prior censorship is unconstitutional and postponement of publication can be ordered only as a last resort.

GLOBAL COMPARATIVE PERSPECTIVE

• Democratic countries regulate online content without resorting to blanket pre-censorship. The European Union’s Digital Services Act focuses on platform accountability and post-publication removal mechanisms.
• Germany’s Network Enforcement Act mandates timely removal of unlawful content with penalties.
• The UK’s Online Safety Act and Australia’s Online Safety Act adopt harm-based regulation. In contrast, authoritarian regimes such as China and Russia rely on surveillance and pre-censorship.

JUDICIAL SELF-RESTRAINT IN INDIAN PRACTICE

Indian constitutional jurisprudence emphasises judicial restraint. In the Adarsh Housing Society case (2018), the Supreme Court refused to issue directions on film disclaimers, holding that such matters fall within the domain of statutory authorities. Constituent Assembly debates also show that courts were envisioned as final arbiters on the reasonableness of restrictions, not as law-makers. Pandit Thakur Das Bhargava stressed that the judiciary must judge the validity of restrictions, not create them.

RISKS OF JUDICIAL REGULATION OF SPEECH

Excessive judicial intervention in speech regulation may lead to prior restraint, mission creep from case adjudication to policy formulation, and misuse by authoritarian tendencies. Courts may also face technical limitations in understanding the dynamics of digital platforms. Constitutional scholar David Landau warns that courts can be captured for democratic erosion when they move beyond their constitutional role.

WAY FORWARD

• A balanced approach is required to protect free speech in a digital democracy.
• Courts should act as constitutional umpires rather than regulators.
• Parliament must frame content regulation laws through democratic debate.
• The preferred model should focus on post-publication accountability through content removal and penalties rather than pre-censorship.
• Self-regulation by industry, supported by independent grievance redressal mechanisms, should be strengthened.
• Technology-based moderation using artificial intelligence with human oversight can assist without undermining constitutional freedoms.

CONCLUSION

Courts best protect freedom of speech not by regulating content but by ensuring that all restrictions strictly comply with Article 19(2). Judicial restraint, legislative responsibility, and democratic accountability together form the strongest safeguards for free expression in the digital age.