"Courts must protect, not regulate free speech" reflects a principle central to modern democracies, emphasizing the judiciary's role as a guardian of constitutional rights against potential overreach by the legislature or executive. This concept is currently a major point of debate in India, particularly regarding the Supreme Court's recent observations on regulating online content.

Context of the Debate in India

The recent discussion stems from proceedings in the Supreme Court of India, notably in cases like Ranveer Allahabadia v. Union of India (2025). The court was dealing with pleas challenging First Information Reports (FIRs) against individuals, including comedians, accused of posting obscene or derogatory content online.
 
Key aspects of the debate include:

• Judicial Observations: The Court expressed concern over the "unrestrained freedom of speech" and the high volume of social media-related litigation.
• Separation of Powers: Critics argue that identifying and creating new laws for content regulation falls within the legislature's purview, not the judiciary's.
• Constitutional Boundaries: India's Constitution, under Article 19(2), permits "reasonable restrictions" on free speech only on specific, exhaustive grounds (e.g., national security, public order, defamation, incitement to an offence).
• Balancing Rights: The Court has increasingly balanced freedom of speech (Article 19(1)(a)) with the right to dignity (Article 21). 

The Existing Legal Framework in India

India already possesses a robust set of laws to penalize various forms of harmful or objectionable content across both offline and online platforms. 

• Indian Penal Code / Bharatiya Nyaya Sanhita (BNS): Existing sections criminalize specific harmful actions:
  • Obscenity: Sections 294, 295, and 296 of the BNS penalize obscene and offensive conduct.
  • Defamation: The law already provides recourse for individuals whose reputations are harmed.
  • Incitement: Laws prohibit speech that incites an offence, promotes enmity between different groups, or threatens public order.

• Information Technology (IT) Act, 2000: This Act specifically addresses online content issues:
  • Obscenity and Privacy: Section 67 penalizes publishing obscene material, and Section 66E prohibits publishing private images without consent.
  • Cyber Threats: Sections also cover hacking (Section 66) and cyber terrorism (Section 66F).

• IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021: These rules, already in place, impose significant obligations on digital platforms, including content take-down requirements and an oversight mechanism by the government.

Judicial overreach and “super‑regulator” role

• Commentators argue that Indian courts increasingly act as “super‑regulators” of speech, prioritising civility and sentiment over constitutional liberty and treating speech as behaviour to manage.​
• This is labelled overreach because the constitutional design expects courts to police the limits of restrictions, not to proactively shape content norms or moral standards for society.​

Expansion of scope in Ranveer Allahbadia case

• In the Ranveer Allahbadia matter, the Supreme Court stated it was “inclined to expand the scope of this proceeding” and asked the government to propose a regulatory mechanism for social‑media content to keep it within “bounds”.​
• Critics say this goes beyond the original FIR‑based dispute and turns the Court into a policy‑initiator for online speech regulation, displacing Parliament and existing regulators.

Regulation versus Unlawful Restraint

Regulation of speech is constitutionally permissible only as a narrow, post‑facto control within Article 19(2), whereas unlawful restraint—especially prior restraint—blocks speech at its source and is presumptively unconstitutional.​

What counts as legitimate regulation

• Article 19(2) allows “reasonable restrictions” by law on specific grounds such as security of the State, public order, decency, defamation, etc., and courts accept post‑publication liability (e.g., criminal law, civil damages, take‑down orders) when these thresholds are met.​
• Such regulation assumes speech is free by default, lets it enter the marketplace of ideas, and then holds speakers or intermediaries accountable if there is a clear, proximate link between the expression and a constitutionally recognised harm.​

What makes a restraint “unlawful”

• Prior restraint mechanisms—pre‑clearance, licensing for content, blanket pre‑screening or broad gag orders—stop speech before it is made public, invert the presumption in favour of free expression and are therefore treated as “suspect” and usually unconstitutional.​
• Indian jurisprudence in cases like R. Rajagopal and Shreya Singhal rejects vague or overbroad restraints, holding that the State cannot justify pre‑publication bans or open‑ended blocking simply on speculative harm or embarrassment grounds.​

Judicial Self-Restraint and Constitutional Propriety

Idea of judicial self‑restraint

• Supreme Court has in earlier instances refused to micromanage content or dictate moral standards, recognising that broad questions of taste, decency and social values lie primarily with the legislature and society.​
• Self‑restraint here means deciding only the dispute before the Court, applying Article 19(2) strictly, and resisting invitations to draft codes of conduct or “guidelines” that function like new speech laws.​

Constitutional propriety and separation of powers

• Under the separation‑of‑powers scheme, the legislature designs regulatory frameworks, the executive implements them, and the judiciary reviews their compatibility with fundamental rights; when courts themselves design regulatory architectures, they blur these lines.​
• The editorial argues that constitutional propriety demands that any new limits on speech come through democratically accountable processes, with courts acting as “sentinels on the qui vive” to strike down excess, not as architects of fresh restrictions.​

Linking Kaushal Kishor and current trends

• Analyses of Kaushal Kishor stress that Article 19(2) is exhaustive and that only “law” made by the legislature can restrict speech, leaving no room for courts to add informal but coercive standards in the name of dignity or civility.​
• The concern in recent digital‑speech proceedings is that judicial suggestions for new regulatory bodies or guidelines, even if well‑intentioned, effectively introduce extra‑textual speech limits and so offend both the Kaushal Kishor logic and separation‑of‑powers principles.​

Comparative Perspectives and Democratic Backsliding

Comparative Perspectives on Content Regulation

• Different democracies have varied approaches to online content, but a crucial distinction exists between democratic and authoritarian models: 

• Democratic Models (EU, UK, Australia, US): These jurisdictions prioritize post-facto mechanisms for content removal and penalization, generally avoiding pre-censorship.
• EU (Digital Services Act, 2022): Prescribes clear content removal protocols while emphasizing user rights and platform accountability.
• Germany (Network Enforcement Act, 2017) and UK (Online Safety Act, 2023): Focus on prompt removal of harmful content and fines for non-compliance, maintaining high thresholds for state intervention.
• US (First Amendment): Employs the most liberal attitude, with robust judicial protection against government interference in speech, relying primarily on private platform self-regulation and minimal state intervention.

• Authoritarian Models (China, Russia): These countries employ stringent, draconian laws that involve extensive surveillance and pre-censorship. The state control over the narrative is pervasive, using law as a tool to silence dissent. 

The Link to Democratic Backsliding
When the judiciary moves from protecting rights to actively creating regulations, critics argue it embarks on a path that parallels processes observed in countries experiencing democratic erosion. 

• Judicial Complacency or Capture: Research by scholars like David Landau and Rosalind Dixon suggests that "would-be authoritarians at times seek to capture courts and deploy them in abusive ways as part of a broader project of democratic erosion". When the judiciary's suggestions for stringent laws are readily agreed upon by the executive, it raises serious concerns about the separation of powers and an emerging "executive-controlled authorization" of restrictions.
• Erosion of Independent Institutions: Democratic backsliding often involves weakening independent checks and balances, including the judiciary and media freedom. An independent judiciary acts as a vital bulwark against executive overreach; compromising this independence by turning courts into regulatory bodies weakens the entire democratic structure.
• Silencing Dissent: A robust democracy requires a "free trade in ideas and ideologies". If courts create legal uncertainty and a "chilling effect" on free expression through vague, subjective standards (like "morality"), the public is discouraged from voicing dissent or unpopular opinions, leading to a stifled public sphere characteristic of illiberal regimes. 

The comparative perspective serves as a warning: the primary duty of courts in a democracy is to be the ultimate arbiter and sentinel of freedom, not an architect of regulation, to prevent the transition from a free society to an autocratic one

Conclusion
The argument concludes that the judiciary's fundamental and indispensable role in a democracy is that of a sentinel of liberty and a constitutional umpire, not a policy-maker or a regulatory body.

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