Freedom of expression: bans, censorship and hate speech

Detail

1. Why freedom of expression matters

• Freedom of expression means the right to speak, write, paint, act or show films with your own ideas. It also covers the right to hold and share opinions others dislike.
• Expression belongs to the minimum area of non-interference. This is the zone of personal life where the state and society should not step in.
• So society must bear some inconvenience to protect it. Speech that annoys or offends people is not, on that ground alone, a reason to ban it.
• In India it is a Fundamental Right under Art. 19(1)(a). Art. 19(2) lets the State place "reasonable restrictions" on it on fixed grounds [7].
• The words "reasonable restrictions" were added during the Constituent Assembly debates. Because of them, courts can review a law and strike down a restriction that is arbitrary (unfair or without good reason) [7].

2. Mill's defence of freedom of expression

• J.S. Mill (On Liberty, 1859) argued that even "false" ideas must be tolerated. He gave four reasons: 1. No idea is wholly false. Most ideas hold a grain of truth. If we ban the idea, we lose that grain. 2. Truth emerges from the clash of views. Truth is not found alone. It comes out of the conflict between opposing ideas. 3. The clash keeps truth alive. If a true idea is never challenged, people repeat it without thinking. It becomes a cliché (a phrase repeated so often that it loses its meaning). 4. What seems false may later prove true. History has many ideas that were once rejected and later accepted. Banning them would block the progress of knowledge.

• The Voltaire line. NCERT quotes: "I disapprove of what you say but I will defend to death your right to say it."

• Voltaire did not write these words himself.
• Evelyn Beatrice Hall wrote them in 1906 to sum up Voltaire's attitude.
• The point: we protect free speech most of all when we disagree with the speaker.

3. Bans and censorship

• Censorship means suppressing a book, film, play or speech, either fully (a ban) or partly (cutting scenes, limiting who can watch).
• NCERT's examples of bans or attempted bans:

Work	What happened
Deepa Mehta's Water (film on widows in Varanasi)	Protests stopped the shoot in Varanasi in 2000. It was later shot in Sri Lanka.
Aubrey Menen's Rama Retold	Book banned
Salman Rushdie's The Satanic Verses	Import banned in 1988. A Delhi High Court challenge was closed in 2024 because the ban notification could not be produced (verify).
The Last Temptation of Christ (film)	Banned
Me Nathuram Godse Boltoy (Marathi play)	Banned

• NCERT's warning: banning is an easy short-term fix. It may calm a protest today. But it builds a habit of banning, and each ban makes the next one easier.
• Voluntary limits are not coercion. A person may freely accept limits, such as an employee of the royal household who signs a contract not to write about the family. Since the person chose the limit, it is not an attack on their freedom.

4. Film certification: a partial ban

• Films are certified by the Central Board of Film Certification (CBFC) under the Cinematograph Act, 1952. A film cannot be shown in public without a certificate.
• Cinematograph (Amendment) Act, 2023 (Act No. 12 of 2023, dated 4 August 2023) [2]:
• It split the "UA" category into three age-based markers: UA 7+, UA 13+ and UA 16+. Parents use the marker to decide what children may watch [2].
• New ss. 6AA and 6AB ban unauthorised recording and transmission of films (piracy) [2][3].
• Penalty: 3 months to 3 years in jail, and a fine from ₹3 lakh up to 5% of the audited gross production cost [2][3].
• Under these provisions, intermediaries (online platforms) were directed to disable 7,393 URLs, including 1,263 websites and 4,996 Telegram channels [3].

5. Key Supreme Court cases on expression

Case (year)	Principle
Romesh Thappar v. State of Madras (26 May 1950)	Freedom of speech includes freedom of the press. The State's ban was struck down because the original Art. 19(2) did not cover "public order" [8]. This led to the 1st Amendment (1951).
K.A. Abbas v. Union of India (1970)	Pre-censorship of films (checking a film before release) is valid, because films affect viewers more strongly than print.
S. Rangarajan v. P. Jagjivan Ram (1989)	Expression cannot be suppressed just because people threaten to protest. The danger must be close and direct, like "a spark in a powder keg". The State must protect the speaker, not silence them.
Shreya Singhal v. Union of India (2015)	Struck down s. 66A of the IT Act, 2000 (punished "offensive" online messages). Only incitement can be punished. Discussion and advocacy, however unpopular, are protected.
Anuradha Bhasin v. Union of India (10 January 2020) [9]	Expression through the internet is protected under Art. 19(1)(a). Internet shutdowns must be proportionate (no harsher than needed), temporary and reviewed from time to time.
Subramanian Swamy v. Union of India (2016)	Criminal defamation (making harming someone's reputation a crime) upheld as a reasonable restriction.
Kaushal Kishor v. State of U.P. (3 January 2023) [10]	The Art. 19(2) grounds are exhaustive. Courts cannot add new grounds for limiting speech.

6. Limits: Art. 19(2) grounds

• The State may restrict speech only on these grounds [7]:

Ground	Added by
Sovereignty and integrity of India	16th Amendment, 1963
Security of the State	Original text
Friendly relations with foreign States	1st Amendment, 1951
Public order	1st Amendment, 1951 (after Romesh Thappar, 1950)
Incitement to an offence	1st Amendment, 1951
Decency or morality	Original text
Contempt of court	Original text
Defamation	Original text (criminal defamation upheld in Subramanian Swamy, 2016)

• The 1st Amendment also added the word "reasonable" before "restrictions". This lets courts check whether each limit is fair.

7. Sedition

• Sedition (old IPC s. 124A) meant bringing hatred, contempt or disaffection against the government by words or signs.
• Kedar Nath Singh v. State of Bihar (1962): the law was upheld but read down. Only speech that incites violence or public disorder counts as sedition. Strong criticism of the government does not.
• S.G. Vombatkere v. Union of India (May 2022): the Supreme Court put s. 124A in abeyance (on hold). No new cases were to be filed under it.
• Bharatiya Nyaya Sanhita (BNS), 2023 (Act No. 45 of 2023):
• Sedition is no longer an offence [6].
• New s. 152 punishes acts endangering the sovereignty, unity and integrity of India: exciting secession, armed rebellion or subversive activities, or encouraging separatist feelings. This includes acts done through electronic communication or money [6].
• Punishment: up to 7 years or life imprisonment, plus fine [6].
• Challenges to s. 152 are pending (verify current).

8. Hate speech

• Hate speech is speech that stirs up hatred against a group (by religion, race, caste, language and so on) or puts people in danger.
• Tolerance has limits. Society does not have to tolerate hate campaigns that put people in danger or spread hatred.
• But the penalty must be proportionate (in line with the harm):
• Suitable: limits on the person's movement or on holding public meetings.

• Not suitable: life imprisonment for a speech.

• Current criminal law:

• BNS s. 196: promoting enmity between groups on grounds of religion, race, place of birth, residence, language and so on, and acts that harm harmony (ex-IPC s. 153A) [6].

• BNS s. 299: deliberate acts meant to outrage religious feelings (ex-IPC s. 295A).

• Law Commission's 267th Report ("Hate Speech", submitted 23 March 2017) [4]:

• The Supreme Court had asked the Commission to consider defining hate speech and to suggest how to give the Election Commission more power against it [4][5].
• It proposed new IPC sections after s. 153B and s. 505A, i.e. dedicated offences on inciting hatred and causing fear or alarm [4].

• Before restricting speech, courts should weigh: the context, the status of the victim, the status of the speaker, and whether the speech can cause discrimination or disorder [4].

• Ashwini Kumar Upadhyay v. Union of India (hate-speech batch, 29 April 2026):

• Courts cannot create new offences. Only the legislature can.
• Existing law covers the field. The real problem is weak enforcement.
• Registering an FIR is mandatory when a complaint shows a crime. If police fail to act, the complainant can use remedies under the BNSS (Bharatiya Nagarik Suraksha Sanhita), 2023 (verify later developments).

9. Online speech

• IT Rules, 2021 govern how intermediaries (social media, OTT and digital news platforms) handle content.
• A 2023 amendment let a government fact-check unit mark online content about the government as "fake". The Bombay High Court struck it down in Kunal Kamra v. Union of India (2024) (verify current).

Prelims Hooks

• Mill's four reasons for tolerating "false" ideas appear in On Liberty (1859). "Truth emerges from the clash of views" is one of them.
• "I disapprove of what you say but I will defend to death your right to say it" was written by Evelyn Beatrice Hall (1906), not by Voltaire himself.
• 16th Amendment (1963) added "sovereignty and integrity of India" to Art. 19(2). 1st Amendment (1951) added public order, friendly relations with foreign States and incitement to an offence.
• Cinematograph (Amendment) Act, 2023: UA 7+, UA 13+, UA 16+; piracy punished with up to 3 years in jail and a fine up to 5% of the audited gross production cost [2][3].
• S. Rangarajan (1989) = "spark in a powder keg". Shreya Singhal (2015) = s. 66A struck down. Anuradha Bhasin (2020) = internet shutdowns must be proportionate. Kaushal Kishor (2023) = Art. 19(2) grounds are exhaustive.
• Trap: the BNS 2023 does not keep "sedition". s. 152 covers acts endangering sovereignty, unity and integrity, with punishment up to life imprisonment [6].
• BNS s. 196 = ex-IPC 153A (promoting enmity). BNS s. 299 = ex-IPC 295A (outraging religious feelings).
• Law Commission 267th Report (2017) = hate speech. It proposed new sections after IPC 153B and 505A [4].
• Kedar Nath Singh (1962) upheld s. 124A but limited it to incitement to violence. It did not strike the law down.

Mains Points

• Ban versus "more speech". Mill and S. Rangarajan say the answer to bad speech is more speech and police protection for the speaker, not giving in to mobs. Bans like The Satanic Verses (1988) and the halting of Water (2000) show a "heckler's veto": whoever protests loudest decides. NCERT's warning that bans build a habit of banning supports a narrow use of Art. 19(2).
• Hate speech: new law or better enforcement? The Law Commission's 267th Report (2017) wanted dedicated offences that weigh context and the status of speaker and victim [4]. The Supreme Court in Ashwini Kumar Upadhyay (2026) said BNS ss. 196 and 299 are enough and the gap lies in police inaction. A balanced answer: mandatory FIRs, accountability for police, fast trials, and punishments that fit the harm (limits on meetings rather than life imprisonment).
• Sedition renamed or reformed? Kedar Nath Singh, the 2022 abeyance and the BNS 2023 show the trend away from punishing criticism. But s. 152's wide wording ("subversive activities", "separatist feelings") and its life-imprisonment ceiling [6] raise the risk of chilling dissent unless courts confine it to incitement to violence, as Shreya Singhal requires.
• The digital state. Internet shutdowns, website blocking (7,393 piracy URLs disabled [3]) and fact-check units test proportionality. Anuradha Bhasin requires orders that are published, temporary and reviewed. Kunal Kamra (2024) shows courts striking down cases where the State acts as judge of truth about itself.