Where does the Supreme Court really stand on free speech?

On 28 March 2025, a Bench led by former Justice A.S. Oka and Ujjal Bhuyan quashed an FIR filed against MP Imran Pratapgarhi for reciting an Urdu poem that allegedly promoted enmity between communities under Section 196 of the Bharatiya Nyay Sanhita (BNS), 2023. Pratapgarhi contested the charge, saying that the poem carried the message of “love and non-violence”. 

The Bench emphatically noted that the poem didn’t promote communal tension, by any “stretch of imagination.” At the time of registration of an FIR in such cases, the Bench said, the police must “read or hear the words written or spoken.” The Judgement also noted that a police officer must keep Article 19(1)(a) of the Constitution and its reasonable restrictions in mind while interpreting the text. It went on to state that Courts are duty-bound to protect literature such as “poetry, dramas, films, stage shows including stand-up comedy, satire and art,” as they make the “lives of human beings more meaningful.” 

An unsigned editorial in The Hindu referred to the Judgement as a “welcome intervention in favour of free speech.” In the Hindustan Times, Gautam Bhatia noted that the “substantive and procedural” aspects of the decision should reduce the ease with which speech is criminalised in India. An opinion in The Times of India described it as “a clear guide to cops, trial courts and HC on all free speech cases.”

The Judgement came at a time when YouTube videos featuring comedian Kunal Kamra and Ranveer Allahbadia had made national headlines. The Eknath Shinde-led faction of the Shiv Sena had caused damage to property at the venue where Kamra had shot a show that poked fun at the Deputy CM of Maharashtra. FIRs had been filed against Allahbadia for making an incest joke on the YouTube show India’s Got Latent. 

The Mahmudabad case: A blip? 

A couple of months after the Judgement in Pratapgarhi, a Bench of Justices Surya Kant and N.K. Singh granted interim bail to Ashoka University Professor Ali Khan Mahmudabad, who had been arrested for online posts concerning Operation Sindoor. But the bail order included conditions gagging Mahmudabad from making any online posts, articles, or oral speech related to the military operation. The Bench also tasked a Special Investigation Team (SIT) with interpreting the “hidden meaning” behind Mahmudabad’s posts. It was the same Bench which directed Ranveer Allahbadia to hand over his passport and restrained him from publishing any content after the India’s Got Latent controversy. 

In the Indian Express, Pratap Bhanu Mehta argued that the Court’s order could “send a chill down the spine of those who care for constitutional values.” An unsigned editorial in the same newspaper asserted that the Supreme Court had embarked on a “disturbing course-reversal” from its own tradition of expanding the scope of free speech. In The Hindu, Senior Advocate Sanjay Hegde criticised the order by describing the Court as “an arbiter of decorum, demanding apologies and deference in the name of civility, sensitivity, or national pride.” 

Much of the discussion revolved around the perception that the Court succumbed to protecting the sentiments of a group of people who disagreed with Mahmudabad’s comments. Hegde’s commentary suggested that the Court tested speech based on prevailing norms of “taste and modesty,” effectively making “hurt feelings” sufficient grounds for curtailing constitutionally protected speech. 

‘Thug Life’: SC back in the good books 

A few weeks after the Mahmudabad order, the release of Kamal Haasan’s film Thug Life was obstructed in Karnataka following his comments that Kannada was born from Tamil. The Karnataka High Court asked the actor to tender an apology. Justice M. Nagaprasanna stated that “citizens have no right to hurt the sentiments of the masses” as people are “emotional” about “nela, jala, bhaashe.” (Land, water, language). 

The matter came to the Supreme Court as a PIL seeking protection for those theatres in Karnataka that were planning to release Thug Life. A Bench comprising Justices Bhuyan and Manmohan didn’t mince words. Firstly, it pointed out that an extra-judicial ban on a movie was illegal. Secondly, it asserted that it was not appropriate for the High Court to demand an apology from Haasan. These comments by the Bench came within a month of the Mahmudabad order. 

Dailies published opinions hailing the Court’s protection of freedom of speech and expression. An editorial in The Indian Express, headlined “On Thug Life and freedom of speech, listen to the Supreme Court”, noted that the Court had underlined the diversity of views while upholding free speech. An editorial in The Times of India stated that the Court could not have been “clearer” when it held that “hurt sentiments” cannot be a ground to restrict speech. It further noted that all High Courts and trial courts “must follow the SC’s line of free speech.” 

An opinion in the Hindustan Times shared a similar sentiment, contending that the High Courts and district judiciary should not side with “populist, majoritarian or conservative viewpoints” when it comes to free speech. The censure of the extra-judicial ban was also lauded in the Deccan Herald, which lauded the Court’s observation that “mob vigilantes” should not be permitted to take over the streets.

Making sense of the polyvocal Court

The Indian Supreme Court is distinctly polyvocal, articulating its legal interpretations through various judicial voices and approaches. At any given time, the 30-plus (the sanctioned strength is 34) judges of the Court are divided across 16 to 17 courtrooms, typically consisting of benches of two to three judges. Their different approaches to adjudication often result in decisions that may be at cross purposes with each other. Critics have often argued that these multiple opinions have led to inconsistency in the Court’s free speech jurisprudence. 

This article, for instance, looks at three recent free speech orders delivered by different judges. In the Pratapgarhi case, the Justice Oka-led Bench advised the police to read the text while keeping the freedom of expression provisions of the Constitution in mind. The tone was entirely different in the Mahmudabad case. There, Justice Kant directed the police to go beyond and decipher the “hidden meaning” behind the online posts. In the Thug Life matter, Justice Bhuyan unequivocally stated that mob vigilantism and sentiments cannot justify restrictions on free speech. 

In 2017, Gautam Bhatia observed that the polyvocality of the Court can result in “patchwork jurisprudence” that is “internally inconsistent.” This situation leaves specific legal domains, such as free speech, entirely to the discretion of individual judges who may choose to disregard established precedents. 

The lay reader who primarily relies on mainstream publications to stay abreast with the Court may be forgiven for wondering where the Court stands on free speech. Inconsistent orders in cases involving similar principles result in fragmented understanding, doctrinal blurring and added uncertainty over how the Court will decide individual cases in the future.