New Delhi: A growing number of cases, often involving “cheap” satire, impersonation, parody, or criticism, are now landing in courtrooms as criminal cases, putting judges at the crossroads of individual liberties and public order. In courtroom after courtroom, judges have to tread a razor’s edge: where does free speech end, and criminality begin?
Earlier this week, Supreme Court judge Justice B.V. Nagarathna, stressed that while the Constitution protects speech from State action, citizens also bear responsibility. She questioned whether protections under Article 19 (for free speech) should also apply in citizen-versus-citizen scenarios (a concept known as horizontal application).
While hearing a case related to online hate speech, the bench, also comprising Justice K.V. Viswanathan, said it was not proposing censorship but may explore the possibility of issuing broader guidelines in the “interest of fraternity, secularism, and dignity of individuals”.
Justice Nagarathna added that cases of unchecked online abuse were clogging the courts with avoidable litigation, diverting police attention from more serious crimes.
Amid this struggle to draw the line between humour and harm, the judiciary finds itself navigating a minefield of digital expression and political sensitivities.
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Where does criticism end and criminality begin?
From impersonation claims involving celebrities to criminal cases arising from political satire, judges are now routinely being asked to decide whether a meme is merely distasteful or defamatory, inviting a criminal action. With no clear legislative definition, the burden of interpreting what gets the protection of constitutional free speech in the new digital world has fallen heavily on the courts.
In January this year, poet and Congress MP Imran Pratapgarhi was booked for sharing a 46-second video and poem on social media after a mass marriage event in Jamnagar, Gujarat. The charges among others included that he allegedly insulted religious sentiments while criticising the government.
The Supreme Court eventually quashed the FIR, holding that political critique through poetry, however uncomfortable, falls within the protective umbrella of Article 19(1)(a).
“75 years into our republic, we cannot be seen to be so shaky on our fundamentals that mere recital of a poem, or for that matter any form of art or entertainment, such as stand-up comedy, can be alleged to lead to animosity or hatred among different communities,” Justices Abhay S. Oka and Ujjal Bhuyan said.
More recently, the Calcutta High Court gave relief to 22-year-old law student Sharmistha Panoli who was arrested in June for allegedly hurting religious sentiments by sharing posts about Operation Sindoor. The HC, however, said freedom of speech is not absolute and does not permit one to hurt religious sentiments.
The man who filed the FIR against her—Wajahat Khan—was missing and on the run. In an interesting development later, he was arrested for allegedly spreading hate speech and hurting religious sentiments through his social media activity. There are four FIRs registered against him in Assam, Maharashtra, Delhi and Haryana.
As Khan approached the Supreme Court to club these FIRs arising from the same posts, the top court deliberated on the ensuing face-off between two Articles—19 (right to free speech) and 21 (right to liberty, including dignity).
“Freedom of speech and expression is a very, very important freedom and a fundamental right. But if there is abuse of that freedom, it leads to litigation and clogs courts,” the SC said.
Protecting Indore-based cartoonist Hemant Malviya, the Supreme Court described one of his multiple works as “objectionable”. Malviya had drawn a bunch of cartoons and caricatures involving the Rashtriya Swayamsevak Sangh and Prime Minister Narendra Modi.
The SC felt “there must be self-restraint and regulation to enjoy the valuable freedom, and not like this abuse”.
In another case, members of the India’s Got Latent show were booked for allegedly making derogatory remarks about persons with disabilities.
On 15 July, while hearing a batch of petitions concerning influencers, podcasters and YouTubers, including Samay Raina and Ranveer Allahabadia, a Supreme Court bench of justices Surya Kant and Joymalya Bagchi said, “The right to dignity flows from another’s claimed right as well, when there’s a conflict, Article 19 cannot override Article 21, Article 21 takes precedence.”
In May, the Supreme Court extended the interim bail for Ashoka University professor Ali Khan Mahmudabad, arrested over alleged inflammatory posts about Operation Sindoor, but barred him from commenting on the ongoing matter.
The court also ordered an SIT investigation and said, “Everybody talks about rights. Have some respect for the sentiments of others. Use a simple and neutral kind of language, respecting others”.
When does free speech become hate speech?
At the heart of these cases lies an unresolved tension: in the age of social media, where citizens express their views on every development, situation, personality or politician, how should courts strike the right balance between Article 19(1)(a), which guarantees freedom of speech, and Article 19(2), which puts “reasonable restrictions” in the interests of public order, decency, or morality?
Speaking with ThePrint, Supreme Court senior advocate Sunil Fernandes explained the biggest challenge is to determine what constitutes free speech and when does it degenerate into hate speech.
“With such increasing social media and such weaponisation of cases against those who hold a contrary point of view to the political class—that is where the problem of free speech has come about. Essentially, because the political class has now learnt to weaponise it against the citizens.”
“If you make a statement where you know that the State or the central government is in your favour—you wouldn’t have to face an FIR. On the TV, the ones belonging to the party in power can be so abrasive right to the extent of being abusive – because they know there will be no FIR against them,” he added.
It starts with FIRs
Legal experts feel the root cause of this chaos isn’t the grey area between freedom of speech and reasonable restrictions. The real problem lies way down the ladder, when the local police register such FIRs.
“The recent trend of the police entertaining FIRs just because somebody is upset or annoyed needs to be brought to halt,” Senior Supreme Court advocate Gopal Sankaranarayanan told ThePrint.
He said state authorities should be made responsible and they should not be registering an FIR as per convenience, he said.
Delhi High Court senior advocate Saurabh Kirpal told ThePrint people are getting offended easily these days and FIRs are being filed unnecessarily.
“The way to stop it is not by refusal to offer protection but to discourage prosecution. Why should FIRs be filed for matters which are of any offensive nature? If it is offensive and irritating – that is not a criminal offense.”
Fernandes said it is very easy to get an FIR registered today. “The courts instead of coming down heavily on those making such comments, should come down (heavily) on those who get them registered as an FIR. The Court should not be motivated by whosoever has filed a case.”
“Every disagreeable speech does not automatically become hate speech,” he added.
Advocate Kirpal said, “The real way to declog (courts) is to ensure that complaints for matters which are offensive, but not criminal, are not filed.”
Courts cannot go from failure to protect to actively prosecute, he added, “Your failure to protect is punishment enough for the person who you are failing to grant relief to.”
Senior advocate Sankaranarayan said, “The reason it is clogging courts is because the courts are not taking up the question of who the complainant/informant is whose sentiments are hurt.”
Hence, placing responsibility on the complainant and even imposing heavy costs will deter this, he added.
Will SC guidelines help at this stage?
As the SC explores the possibility of issuing broader guidelines in the “interest of fraternity, secularism, and dignity of individuals, Kirpal said the top court doing so would be a breach of the constitutional framework.
“This is not a collaborative exercise between the executive, judiciary and the legislature as to how to control constitutional rights for free speech. The court isn’t going to step into a domain which is ridden with complexities and political tickets. If the very authority who is supposed to determine the constitutionality of these guidelines is making these guidelines then where will a citizen challenge them?”
“It is not the role of the court to advise the citizens, no matter how well intentioned, what to say or what not to say. It is for them to come or not to come to the aid of the citizens when their free speech rights are violated,” he added.
As Indian democracy becomes more digital—and more divided—the judiciary’s role in defining the outer limits of permissible speech will become ever more consequential, said another advocate.
(Edited by Ajeet Tiwari)
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