The Hindu Editorial Analysis
15 December 2025
Courts must protect, not regulate free speech
(Source – The Hindu, International Edition – Page No. – 8)
Topic : GS Paper-2: Fundamental Rights, Judiciary, Constitutional Interpretation, Freedom of Speech and Expression
Context
The editorial cautions against judicial overreach in regulating free speech, particularly online content. While the executive and legislature are traditionally viewed as threats to free speech, recent Supreme Court observations on regulating online content suggest that the judiciary itself may inadvertently undermine constitutional freedoms. The Court’s suggestion to create autonomous regulatory bodies and invite public consultation on draft guidelines has raised concerns about whether courts are stepping beyond their constitutional role of adjudication into regulation.
Core Issue
The central question is whether courts should regulate speech or protect it within constitutional limits.
Under Article 19(1)(a) of the Constitution, freedom of speech and expression is a fundamental right, subject only to reasonable restrictions explicitly listed under Article 19(2). The concern arises when courts:
- Suggest new regulatory mechanisms,
- Endorse prior restraint indirectly, or
- Expand the scope of cases beyond the original legal question before them.
Such actions risk blurring the line between judicial review and law-making, which constitutionally belongs to the legislature.
Existing Legal Framework Is Already Adequate
India already has a comprehensive legal framework governing speech and online content:
- Information Technology Act, 2000 – Sections 66, 66E, 66F regulate cyber offences, privacy violations, and cyber terrorism.
- Bharatiya Nyaya Sanhita (BNS) – Sections 294–296 penalise obscenity.
- IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 – Provide content moderation mechanisms, though criticised for overreach.
An oversight mechanism under the executive already exists. Therefore, any additional regulation must be approached with caution, especially when initiated by the judiciary.
Judicial Overreach and Expansion of Scope
The editorial flags concern over the Court’s decision to expand the scope of a case originally dealing with First Information Reports against allegedly obscene content, to examine broader questions of regulating “offensive” online material.
Such expansion is problematic because:
- The issue of online regulation was not originally before the Court.
- Courts lack technical expertise in digital media regulation.
- Regulation of speech involves policy choices best left to legislatures.
As cautioned in Common Cause v. Union of India (2008), courts must recognise their institutional limitations.
Thin Line Between Regulation and Unlawful Restraint
Judicial precedents have consistently warned against censorship:
- In Sahara India Real Estate Corp. v. SEBI (2012), the Court held that postponement orders on publication must be a last resort and meet a high standard of reasonableness.
- In Kaushal Kishor v. State of Uttar Pradesh (2023), the Court reaffirmed that restrictions on free speech must strictly conform to Article 19(2), which is exhaustive.
Any attempt to impose restrictions beyond these grounds violates constitutional guarantees.
Constitutional Scheme and Judicial Self-Restraint
The Constitution clearly assigns roles:
- Legislature: Law-making and regulation
- Executive: Enforcement
- Judiciary: Constitutional interpretation and adjudication
As emphasised during the Constituent Assembly debates, the Supreme Court is the arbiter of reasonableness, not the creator of restrictions. Constitutional propriety demands that courts refrain not only from the process of law-making but also from initiating regulatory deliberations affecting fundamental rights.
Comparative Perspective: Lessons from Abroad
The editorial highlights that most democracies focus on removal of harmful content, not pre-censorship:
- European Union – Digital Services Act, 2022
- Germany – Network Enforcement Act, 2017
- UK – Online Safety Act, 2023
- Australia – Online Safety Act, 2021
In contrast, authoritarian regimes like China and Russia employ surveillance and pre-censorship. Alarmingly, even some democracies risk sliding toward excessive judicial intervention, contributing to democratic erosion.
Conclusion
Free speech is the foundation of democracy and must be protected, not regulated, by courts. While addressing legitimate concerns about harm, obscenity, or misinformation, the judiciary must exercise constitutional restraint and respect the separation of powers.
When courts repeatedly call for stricter laws and the executive readily complies, it poses a serious threat to citizens’ freedom under Article 19(1)(a). As Salman Rushdie aptly observed, “Free speech is the whole thing, the whole ball game. Free speech is life itself.”
Preserving it requires judicial vigilance — not judicial regulation.