Syllabus: Functioning of the Judiciary
Context and Core Argument
- Freedom of speech is central to democratic functioning and constitutional governance.
- Traditionally, threats to free speech arise from the executive or legislature, not courts.
- Recent Supreme Court proceedings raise concerns of judicial intrusion into speech regulation.
- In Ranveer Allahbadia vs Union of India (2025), the Court suggested new regulatory bodies.
- The Court also urged the government to draft and publish new online content regulations.
Existing Legal Framework on Speech Regulation
- Section 67, IT Act penalises publication and transmission of obscene online material.
- Sections 294, 295, 296 BNS criminalise obscenity and religious insult.
- Sections 66, 66E, 66F IT Act address hacking, privacy violations and cyber-terrorism.
- IT Rules, 2021 impose content regulation and government oversight mechanisms.
- These rules enable prior restraint, criticised for excessive executive interference.
Judicial Expansion of Regulatory Scope
- The case originally concerned quashing FIRs related to allegedly obscene content.
- On March 3, 2025, the Court expanded scope to examine moral regulation of content.
- Identifying “offensive moral standards” falls within the legislative domain, not judicial.
- In Common Cause v. Union of India (2008), the Court warned against institutional overreach.
- Courts lack technical expertise required for complex online media regulation.
Regulation vs Unlawful Restraint
- In Sahara India v. SEBI (2012), the Court cautioned against pre-censorship of media.
- Blanket prohibitions were held constitutionally impermissible except in exceptional situations.
- Postponement or restraint orders must satisfy strict necessity and proportionality tests.
- Judicial insistence on regulation risks sliding into unconstitutional prior censorship.
Constitutional Limits on Free Speech Restrictions
- Article 19(2) exhaustively lists permissible grounds for restricting free speech.
- In Kaushal Kishor (2023), the Court barred adding new restriction grounds.
- Courts cannot impose limitations beyond those explicitly enumerated in the Constitution.
- Free speech must be protected even when competing rights are invoked.
Judicial Self-Restraint and Precedents
- In Adarsh Cooperative Housing Society (2018), the Court rejected imposing film disclaimers.
- The Court held content regulation lies with statutory authorities, not judicial directions.
- Constituent Assembly debates affirmed courts as arbiters of reasonableness, not lawmakers.
Global Practices and Risks
- Democracies like EU, UK, Germany, Australia focus on content removal, not pre-censorship.
- Fines follow non-compliance, preserving speech while enforcing accountability.
- Authoritarian regimes use surveillance and gag laws to suppress online speech.
- Scholars warn courts can be misused for democratic erosion through abusive review.
Conclusion
- Courts must act as guardians of liberty, not regulators of expression.
- Judicial encouragement of stringent laws risks statutory gags and prior restraint.
- Constitutional propriety demands restraint to preserve free speech as the essence of democracy.