The Supreme Court of India, since its inception, has been conceived as the sentinel on the qui vive—the ultimate guardian of the fundamental rights enshrined in Part III of the Constitution. Central to this protective mandate is the freedom of speech and expression under Article 19 (1)(a), a right the Court has historically interpreted with expansive solicitude, recognizing it as the foundational liberty upon which a functioning democracy rests. This freedom, while not absolute, can only be curtailed by “reasonable restrictions” under Article 19(2), imposed strictly on the grounds enumerated therein. The judiciary’s constitutional obligation is to police the boundaries of these restrictions, ensuring they are not merely reasonable in principle but also in their application, remaining narrow, proportionate, and demonstrably necessary.
However, an examination of the Court’s free speech jurisprudence in recent months reveals a disquieting pattern of contradiction and inconsistency. Alongside landmark judgments that have robustly defended expressive freedoms, there has emerged a parallel and conflicting stream of pronouncements, delivered through interim orders and expansive bail conditions. These orders have imposed sweeping prior restraints on speech, frequently without substantive reasoning and based on subjective assessments of morality or public sentiment. This trend represents a significant deviation from the Court’s larger constitutional role. It departs from established doctrines that demand a high threshold for restricting speech and, in doing so, fosters a climate of legal uncertainty. This analysis contends that this jurisprudential dissonance not only undermines the predictability of law but also creates a tangible “chilling effect” on public discourse, thereby weakening the very democratic fabric the Court is duty-bound to protect.
The doctrinal anchor: Article 19(1)(a) and the high bar for restriction
The Supreme Court’s traditional role as a bulwark for free expression is rooted in a series of foundational precedents. In Romesh Thappar v. State of Madras (1950), the Court established that the freedom of speech lies at the core of all democratic organizations. It held that any restriction must be evaluated from the perspective of its directness and proximity to the specified grounds in Article 19(2), such as public order or the security of the State. This principle evolved over decades, culminating in the landmark verdict in Shreya Singhal v. Union of India (2015).
In Shreya Singhal, the Court struck down Section 66A of the Information Technology Act, 2000, for being unconstitutionally vague and overbroad.[1] Crucially, it fortified the “incitement” standard, clarifying that speech can only be restricted when it rises to the level of “incitement to an offence.” This test requires a clear nexus between the expression and the likelihood of imminent lawless action. Mere advocacy, discussion, or even offensive and unpopular speech is constitutionally protected.[2] This judgment, along with the effective suspension of the colonial-era sedition law (Section 124A of the Indian Penal Code) in May 2022 due to its rampant misuse, represents the doctrinal high-water mark of free speech protection in India. Whether the Court should have suspended the provision or not, in the context of the discourse around judicial activism and overreach is a different debate.
These rulings firmly embody the Court’s constitutional role: to set clear, objective, and high standards for any State action that seeks to curtail expression. It is against this established doctrinal backdrop that the recent developments must be assessed.
The changing trajectory: Judicial paternalism and unreasoned restraints
The recent cases of Ranveer Allahabadia and Professor Ali Khan Mahmudabad serve as stark illustrations of a judicial approach that appears untethered from the principles laid down in Shreya Singhal.
In the matter involving podcaster Ranveer Allahabadia, the Court was approached for the consolidation of multiple First Information Reports (FIRs) filed against him for allegedly obscene content in an online show. While granting interim protection from arrest, the bench imposed a blanket, unreasoned gag order, prohibiting him from airing any shows on any platform. This order was a classic act of prior restraint, imposed without any adjudicatory finding that the content was, in fact, legally obscene. The Court’s oral remarks, condemning the language as “dirty” and “perverted” suggested a departure from objective legal analysis towards a subjective, moralistic critique. While this sweeping ban was later modified, it was conditioned on an undertaking that future content would “maintain the desired standards of decency and morality so that viewers of any age group can watch.” Such a condition is inherently vague and places the judiciary in the role of a super-censor, dictating amorphous “societal norms” for creative expression. This judicial paternalism (as Anmol Jain mentions it) stands in direct conflict with the principle that the Court’s role is to be a legal arbiter, not a moral guardian. Furthermore, the bench’s stated inclination to expand the scope of this proceeding to devise regulatory measures for online content signals a potential overstepping of the judicial function into the legislative domain.
Even more troubling is the case of Professor Ali Khan Mahmudabad, who faced multiple FIRs, including for sedition, over a Facebook post commenting on India’s recent military operation—Operation Sindhoor. The Supreme Court, while granting interim bail, imposed an exceptionally broad gag order, restraining him from expressing any opinion on the underlying conflict. It also directed the confiscation of his passport. Critically, the Court refrained from undertaking a prima facie analysis of whether the speech in question met the stringent incitement-to-violence threshold. It delegated the task of interpreting the “complexity of the phraseology” to a Special Investigation Team (SIT) of police officers. For this very broad set of restrictions to have been put, one would expect a deep reasoning as to why a person’s free speech is being restricted on this level for a simple Facebook post that has not incited any violence anywhere. However, the Court finds a way to not meet this reasonable expectation by giving a 2-page order. Not even a prima facie mentioning of the remarks or saying how they engaged with them is done by the Court. While it is a simple interim bail order, the restrictions placed on the petitioner warrant the reasoning, something that would not have been expected of the Court if not for the restrictions.
This raises a pertinent question. Does the Supreme Court not have the responsibility to be well reasoned it its order, especially in an order that curtails the freedom of speech of a person? In a democracy like India, the Court does have such responsibility.
These cases demonstrate a worrying departure from constitutional first principles. They prioritize executive concerns over individual liberty, impose prior restraints without robust reasoning, and apply vague, subjective standards of decency or propriety that are alien to the rigorous tests established in prior judgments.
The counter-Narrative: enduring fidelity to constitutional principles
The restrictive turn is, however, not a complete narrative. The Supreme Court has also delivered powerful judgments that reaffirm its commitment to free expression, creating a landscape of profound jurisprudential dissonance.
In Mohammed Zubair v. State of NCT of Delhi (2022), the Court was faced with a similar situation of multiple FIRs filed against a journalist for his tweets. The State explicitly requested a bail condition barring him from tweeting. The bench, which notably included one of the same justices as in the Allahabadia case, unequivocally rejected this plea. It reasoned that such a gag order would be a “disproportionate.” The Court declared that a blanket ban on expression could not be imposed as a condition of liberty.
Similarly, in Imran Pratapgarhi v. State of Gujarat (2025), the Court quashed an FIR against a Member of Parliament over a poem alleged to have promoted disharmony. Justice Abhay S. Oka, writing for the bench, asserted that speech must be judged by the standards of a “strong-minded, firm and courageous” individual, not those of a “weak and oscillating” mind prone to taking offense.
These judgments stand as a testament to the enduring strength of the constitutional framework. They apply the high-threshold tests for restricting speech, reject the notion of pre-emptive gags as a routine measure, and refuse to entertain the “heckler’s veto” by protecting speech from the easily offended. Yet, their co-existence with the orders in Allahabadia and Mahmudabad creates an environment of acute legal uncertainty.
The chilling cascade: consequences of jurisprudential inconsistency
The primary casualty of this judicial inconsistency is the rule of law itself. When the country’s apex court applies contradictory principles to similar fact patterns, it becomes impossible for citizens, journalists, artists, and academics to predict the legal boundaries of permissible speech. This unpredictability is the very engine of the “chilling effect.” Expression is not only chilled by direct censorship but also by the fear that a legitimate, constitutionally protected opinion could be ensnared in a web of litigation, culminating in a restrictive gag order issued at the interim stage by the highest court itself.
This phenomenon has a cascading impact. When the Supreme Court imposes gag orders as bail conditions, it normalises such practices, signalling to lower courts and law enforcement agencies that these are acceptable tools for managing speech-related offenses. The result is a systemic shift where bail, a mechanism intended to secure liberty, is weaponised to curtail it. The core constitutional role of the Supreme Court is not merely to adjudicate disputes but to provide clear, consistent, and principled legal guidance for the entire nation by functioning as the supreme interpreter of the Constitution. By issuing contradictory pronouncements, the Court detours from this vital function, leaving a vacuum filled by uncertainty and fear. This leads to a public sphere characterized by self-censorship, where critical inquiry and challenging discourse are stifled, not by authoritarian laws, but by an unpredictable judiciary.
Conclusion: A call for constitutional reaffirmation
The Supreme Court of India stands at a critical juncture. The recent inconsistent rulings on free speech threatens to erode its legacy as the unwavering protector of fundamental rights. While landmark decisions continue to uphold the sanctity of Article 19(1)(a), the parallel trend of imposing ad-hoc, unreasoned, and paternalistic restrictions represents a significant deviation from its constitutional charter. This inconsistency is more than a mere academic curiosity; it has profound real-world consequences for the health of India’s democracy.
To restore constitutional equilibrium, the Court must return to a position of principled consistency. This requires a steadfast refusal to impose prior restraints without satisfying the highest standards of justification. It demands that all restrictions on speech be grounded in clear, reasoned orders that adhere to the established tests of necessity and proportionality. The judiciary must consciously resist the temptation to act as a moral arbiter, grounding its decisions in objective legal standards, not subjective notions of public taste.
The freedom of speech is too vital to be left to the vagaries of shifting judicial moods. The responsibility rests squarely with the Supreme Court to reaffirm its constitutional role, ensuring that the marketplace of ideas remains open and that its gavel serves to protect, not inadvertently gag, the diverse voices that animate the world’s largest democracy.
(The author is part of the legal research team of the organisation)
[1] Para 98, (2013) 12 S.C.C. 73
[2] Ibid, Para 44
Related:
Free Speech Upheld: Bombay HC strikes down IT (Amendment) Rules, 2023 as unconstitutional