“Silenced Voices: Examining India’s Free Speech Crisis Through Historical and Contemporary Lenses”

ABSTRACT

India, the world’s largest democracy, is facing growing challenges to the right to express differing opinions. Government responses to protests and opposition, both peaceful and violent, have led to concerns about free speech. Many individuals and groups are now self-censoring, fearing the consequences of speaking out. This issue extends to social media, where laws often censor or regulate content deemed “offensive” or “objectionable.” These rules are vague and inconsistently applied, discouraging open dialogue and dissent. Additionally, India lacks a clear legal framework to address hate speech, relying on scattered laws in the Indian Penal Code, which fail to define it clearly. To preserve India’s democratic and diverse nature, stronger legal protection for the “freedom to criticize” is essential, allowing people to voice opinions without fear.

I. Introduction

The growing intolerance towards differing opinions in India has raised concerns about democracy. A healthy democracy depends on the free exchange of ideas, which promotes criticism, accountability, and change. However, recent actions by the Indian government have led to fears that dissenting voices are being suppressed, making society less inclusive. For example, in January 2023, the government launched a campaign to stop citizens from watching a BBC documentary about Prime Minister Narendra Modi’s role in the 2002 religious riots. Officials warned universities not to screen the documentary, saying it promoted an antigovernmental message. Such actions raise important questions about the limits of free speech in India, as protected by the Constitution.

While a fair legal system should protect free speech, this right is not absolute and can be influenced by political agendas. This paper supports John Stuart Mill’s idea of the “marketplace of ideas,” which promotes unrestricted free speech, believing that all voices, no matter their views, contribute to a dynamic exchange of ideas. This approach is crucial in India’s pluralistic democracy, where different viewpoints are vital for a healthy society. It aligns with two key principles: individual choice and activism and supporting democracy. The internet’s vast reach makes it easier than ever to share ideas, reinforcing the importance of free and diverse discourse for India’s social, political, and intellectual growth.

Article 19 of the Indian Constitution is meant to protect national interests, but its broad scope has been criticized for allowing the government to suppress dissent. The state can restrict free speech for reasons such as “national security,” “public order,” “decency,” “incitement to crime,” and “relations with foreign countries.” In India, these broad restrictions can weaken the fundamental protections guaranteed by the Constitution, making it easier for the government to silence voices of opposition.

Since the Indian Constitution was created in 1950, it has set clear boundaries for individual rights. However, there have been attempts to expand these boundaries to include restrictions based on “offensiveness.” These restrictions have led to problems in India, where political, cultural, and religious diversity makes it easy to offend someone’s beliefs or views unintentionally. Despite claims of supporting democracy, there is a growing culture of intolerance towards criticism, especially among nationalist and religious groups. These groups often confuse threats to public order with threats to their beliefs. As a result, many individuals, groups, and media outlets have faced intimidation, harassment, and violence for expressing differing opinions. The government and its supporters have been accused of using legal action, internet shutdowns, arrests, and even violence to suppress dissent.

The increasing use of internet shutdowns in India, often used by the government to silence opposition and control public opinion, needs urgent attention. These shutdowns not only harm democracy but also lead to human rights violations, such as stopping protests and hiding instances of violence and injustice. Regardless of political party, state governments often use internet shutdowns to suppress dissent and create the illusion of maintaining order. Sadly, the government values its image over true law and order. These shutdowns also prevent access to essential education and healthcare, harming vulnerable communities. For example, in early 2023, Manipur experienced horrific incidents, including the brutal assault of women during an 80-day internet blackout, which delayed news of these atrocities for months.

The Supreme Court of India has ruled that internet shutdowns must be necessary and proportional, emphasizing the need to follow constitutional guidelines. However, these rules are often ignored, showing a lack of accountability. The Review Committee oversees shutdown orders and is not transparent or impartial. There has never been a case where the committee reversed a shutdown or criticized a violation. Recently, the government has shifted to banning specific social media apps instead of full internet shutdowns, which still limits free speech. It offers the government another way to control expression and manage its public image.

India is not the only country that has experienced internet shutdowns. In 2022, 35 countries experienced at least 187 internet disruptions, with over 100 shutdowns across nations like Bangladesh, Iran, Jordan, Libya, Myanmar, Sudan, Turkmenistan, and Ukraine. These shutdowns often occur during times of violence and have become longer, particularly when connectivity is most needed—during crises, protests, elections, and political instability—to control and silence opposition.

This article argues that the “freedom to criticize” should be better protected to ensure that diverse opinions can be freely expressed, reflecting the pluralistic nature of Indian democracy. In the world’s largest democracy, people should be able to speak up, but many are now afraid to voice their opinions due to fear of mob attacks and government punishment. In several cases, there have been attempts to regulate or censor social media content as “offensive” or “objectionable,” even though these claims are often unclear. Additionally, India lacks a clear legal framework for handling hate speech. The Indian Penal Code (IPC), created during British colonial rule in 1860, has vague provisions on hate speech, which have been criticized for limiting free speech. These outdated laws were designed to control dissent under colonial rule and continue to be used to suppress free expression in India today.

It isn’t very pleasant that after India gained independence, the leaders who fought against British laws that suppressed freedoms adopted and reinforced similar laws. While some courts have tried to protect the right to dissent, various factors have led to a weak and inconsistent approach to protecting free speech. This is worsened by the rise of right-wing online vigilantism and growing intolerance fueled by divisive groups on social media. These groups spread communal hatred, which threatens India’s secular democracy and creates an environment of “cultural policing.”

Social media has become a major force in promoting religion-based political division in India. While there are no laws restricting thoughts in India, the rise of right-wing populism has sparked a backlash against opinions that do not align with ‘Hindutva’—an ideology that promotes Hindu supremacy. This narrative is being used to exclude minorities and push a narrow version of Hinduism. Hindu revivalists are also attempting to rewrite history by distorting facts and promoting extreme views. In a ‘saffronised’ India, practices like Hindu syncretism, secularism, and dissent are portrayed as ‘impure’ or ‘foreign.’ At the same time, Hindutva claims to be tolerant, especially in areas where diversity is seen as beneficial.

This article looks at the ongoing issue of dissent in India in two stages. First, we explore the early debates on free speech during the framing of the Constitution between 1946 and 1950. We discuss the first amendment to the Indian Constitution, which broadened the restrictions on free speech under Article 19, making these limits subject to being ‘reasonable’. Second, we focus on modern cases where free speech has been limited. These cases often involve exploiting loopholes to suppress dissent and limit public engagement on important issues. We also examine policies for social media companies and how they regulate discourse to prevent hate speech and maintain public order. A key issue highlighted is the consistent targeting of secular voices, which are often labeled as ‘anti-national’ because they challenge the views of the majority. Despite some attempts by courts to protect free speech, the lack of independence in reviewing these matters has hindered meaningful change.

The rise of ultra-nationalist ideology has deeply influenced the state machinery in India. Following the global impact of the ‘9/11 effect,’ fear of the ‘other’ has led countries like India to implement restrictive laws, not only to address terrorism but also to control political dissent. As a result, dissent in India is no longer seen as a positive force. The enforcement of arbitrary laws targeting speech has created a suppressive atmosphere, harming freedom of expression.

II. Freedom of speech: historical background

A. Navigating the turbulent genesis: unraveling the function of free speech in the Indian Constituent Assembly

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During British colonial rule in India (1858 to 1947), the British government imposed four major restrictions on the people’s freedom of speech and expression. These restrictions were laws that targeted (i) sedition, (ii) contempt of court, (iii) hate speech, and (iv) defamation.

The Vernacular Press Act of 1878 required newspapers in local languages to get a license from the British government before publication. This law aimed to stop the Indian press from sharing anti-colonial views. The Indian Sedition Act of 1870 made it illegal to criticize the British government or encourage people to oppose it. This law was often used to silence political activists and limit freedom of speech. The Rowlatt Act of 1919 allowed the British government to arrest and hold people without a trial. It was passed because of the rising Indian nationalist movement and used to suppress political opposition. The Press and Registration of Books Act of 1867 required newspapers and publishers to register with the British government and follow censorship rules. This law was used to control what could be published and stop the spread of anti-colonial ideas. These laws were ways for the British to keep control over the Indian population and prevent nationalist feelings from growing.

Even after India gained independence in 1947, some restrictions on freedom of speech from the colonial period continued to be used by the government. This led to ongoing debates about balancing individual rights and state control. For example, during the drafting of the Indian Constitution between 1946 and 1949, the issue of sedition as a crime was highly debated. Many freedom fighters, including Bal Gangadhar Tilak and Mahatma Gandhi, had been victims of this harsh law. The British colonial rulers considered freedom of speech and dissent a threat to their rule, so they enforced strict restrictions. Despite strong opposition from some members of the Constituent Assembly, the framers of the Constitution ultimately decided to keep sedition as a criminal offense.

B. Changing frontiers: The First Amendment to the Indian Constitution

In 1951, the Indian Constitution changed with the introduction of the First Amendment, which added three new restrictions under Article 19(2). To understand the impact of this amendment, it’s important to look at how the Indian judiciary originally viewed free speech. In earlier cases, such as Brij Bhushan and Romesh Thappar, the courts had struck down state orders restricting certain publications, arguing that these restrictions were imposed under the pretext of maintaining public order and safety. At that time, “public order” wasn’t explicitly mentioned in Article 19(2), so it couldn’t be considered a valid reason to limit free speech.

However, after these rulings, the First Amendment introduced “public order” as a valid ground for restricting free speech under Article 19(2). Later, in the case of State of Bihar v. Shailabala Devi, the court disagreed with the earlier judgments, stating that the amendment was unnecessary because such restrictions were already implied within the original text of the Constitution.

III. Freedom of speech: contemporary scenario

The gradual suppression of dissent signals a steady erosion of democracy in a country. According to Mill, personal liberty allows individuals to pursue their own idea of a good life, as long as it doesn’t harm others. This idea includes several important aspects: (a) the right to express oneself freely without causing harm, (b) the right to call for political changes, (c) the pursuit of personal growth and freedom, and (d) the expansion of knowledge and the search for truth.

The gradual suppression of dissent indicates a slow but steady erosion of democracy in a country. According to John Stuart Mill, personal liberty allows people to follow their own path to a good life, as long as it doesn’t harm others. This idea covers several important points: (a) the right to express oneself freely without causing harm, (b) the ability to push for important political changes, (c) the freedom to improve one’s own well-being and liberty, and (d) the right to expand knowledge and find the truth. Mill’s philosophy supports complete freedom of speech and expression, stressing the need to protect this ‘passive’ aspect of freedom. This means that people should be able to speak their minds without restrictions, even if their views are unpopular. This principle is vital for a healthy democracy, and any actions that threaten it should be a cause for concern.

The First Amendment to the Indian Constitution and its limitations on free speech have created confusion, leading to external restrictions and self-censorship. This section looks at cases where courts, governments, and the public have suppressed dissent for various reasons. It focuses on common themes in restrictions on speech, such as those aimed at protecting public safety and the criticism and censorship of art and literature. As mentioned earlier, the First Amendment added a new limitation to freedom of speech and expression under Article 19, causing confusion and inconsistent enforcement of these restrictions.

This section highlights how the term “public order” has been interpreted differently and how its application has sometimes been misused. Laws like the Unlawful Activities (Prevention) Act (UAPA) and the Armed Forces Special Powers Act (AFSPA) have been used to suppress dissent and limit freedom of expression, assembly, and association, often under the justification of maintaining “public order” or national security. For example, under the UAPA, people can be arrested and detained without trial for up to six months if they are suspected of being involved in “unlawful activities.” The Act’s vague definition of “unlawful activities” has been criticized for being too broad and prone to misuse, with activists and journalists sometimes targeted for simply voicing opposition or advocating for marginalized groups. Similarly, the AFSPA has been criticized for giving security forces broad powers, including the authority to use lethal force and arrest individuals without a warrant, all in the name of maintaining “public order” in areas declared as “disturbed.”

A. Regulating the internet: selective oversight?

The Indian government has been accused of selectively regulating the Internet, raising concerns about controlling and monitoring online activity without transparency or accountability. There have been cases where the government blocked websites and online content without proper procedures or clear explanations. The main challenge to creative expression in India is not just religious intolerance, as previously mentioned, but the weakness of institutions that fail to protect liberal values.

Freedom of expression is mainly about limiting the state’s power to restrict speech, but it should also have a positive side. Tolerance shouldn’t be based on political bias. The right to free expression requires governments to protect it actively. Censorship should never be a quick fix in any civilized society. Allowing people to express diverse ideas freely is crucial for citizens to exercise their political rights, which are the foundation for many political and civil liberties. However, as noted earlier, India’s hate speech and sedition laws are vague and often suppress peaceful speech, failing to meet international standards. These laws, instead of protecting minorities, are often misused by powerful groups to silence opposing views. Many critics accuse the ruling party of hypocrisy, as journalists and media outlets critical of the government are often labeled ‘anti-national’ and face arrest or criminal charges. During the COVID-19 crisis, over 50 journalists were detained for their critical coverage.

India has earned a troubling record for the most internet shutdowns worldwide. This trend peaked in 2019 with the complete communication blackout in Jammu and Kashmir, just before Article 370 of the Constitution was revoked. Along with restrictions on movement, this action severely impacted the right to free speech and expression protected under Article 19. The state justified these actions under the ‘Telecom Suspension Rules’ and Section 144 of the Code of Criminal Procedure but did not make the orders publicly available. As a result, a writ petition was filed before the Supreme Court, arguing that these restrictions hindered the press from operating freely. This petition was combined with another by Ghulam Nabi Azad, fighting for the individual’s right to free speech. The court ruled that internet access protects the right to free speech and expression under Article 19. It also stated that any internet shutdowns must meet the standards of necessity and proportionality. While the government can restrict internet access during national security threats, an indefinite suspension of services is unlawful.

B. Regulations of intermediaries, publishers, and OTT platforms

Social media platforms offer both advantages and challenges. On the positive side, they help spread information, share opinions, provide better access to news, and serve as powerful tools to raise awareness. However, they also bring concerns such as hate speech, propaganda, cybercrimes, and fake news. Countries worldwide struggle to strike a balance between these benefits and risks. In India, the government has taken steps to regulate social media platforms, often referred to as intermediaries. While these regulations aim to address pressing issues, they have also sparked debates about the impact of free speech. This section explores how restrictions on social media platforms have steadily increased and the challenges they pose to the free flow of information in the country.

The Shreya Singhal v. Union of India case marked a turning point in discussions about India’s free speech and online regulations. The Supreme Court ruled that Section 66A of the Information Technology Act (2000) was unconstitutional. The Court found the section’s vague terms—such as annoyance, obstruction, or danger—unacceptable grounds for restricting speech. Such ambiguity, the Court noted, could create a chilling effect on free expression and did not align with the reasonable restrictions outlined in Article 19(2) of the Indian Constitution. In this case, the Court also clarified the responsibilities of social media intermediaries under the Information Technology (Intermediary) Rules, 2011. It redefined terms like “actual knowledge” and “obtaining knowledge,” removing the obligation of intermediaries to monitor or take down content unless explicitly directed by a court or a relevant authority. However, the Court upheld the constitutionality of Section 69A of the IT Act, allowing the government to order content removal for national security or public order reasons. The judgment also emphasized the importance of a plurality of opinions in fostering informed decision-making and warned against the dangers of a monopoly—whether by the state or private entities—in controlling the dissemination of information. This case reinforced the balance between maintaining security and protecting the freedom of expression in India’s digital landscape.

Conclusion

India’s journey with free speech reflects a complex interplay between historical ideals and contemporary challenges. While the Constitution guarantees freedom of expression, laws, regulations, and societal pressures often curtail this right. From the foundational debates during independence to the digital age’s nuanced battles, the tension between safeguarding free speech and maintaining public order remains unresolved. The rise of social media and technology has added complexity to this crisis. While these platforms amplify marginalized voices and foster democratic dialogue, they are also breeding grounds for misinformation, hate speech, and state surveillance. As seen in landmark cases like Shreya Singhal v. Union of India, the judiciary has played a pivotal role in upholding free speech. Yet, the increasing restrictions under various laws indicate a narrowing space for dissent. To address this crisis, India must strike a delicate balance: ensuring national security and public order without stifling the diverse voices that form its democratic foundation. A commitment to transparency, plurality, and accountability—both for the state and private entities—is essential to preserving the freedom of expression. Only by doing so can India truly honor its constitutional promise of free speech and thrive as a vibrant democracy.

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