The Ranveer Allahbadia episode has posed some consequential questions on freedom of expression, obscenity, and the extent and nature of restrictions on individual liberty. According to some viewers, Allahbadia’s comments on the YouTube show India’s Got Latent were laced more with profanities than with humour. Multiple police reports were registered against him in different states. He, in turn, approached the Supreme Court challenging them. The court prevented Allahbadia’s arrest, but as a pre-emptive injunction also prohibited him from airing any new content until further orders. This is deeply troubling.
During the hearing, the Supreme Court underlined the need to have a national law on digital content, a suggestion that was readily accepted by the Centre. The Union government is of the view that a new legal framework to regulate content on digital platforms should be evolved. According to the central government, the “misuse of free speech” on digital platforms calls for stronger laws. Pertinently, the Union’s move is at the instance of observations from the top court. This situation is extremely problematic.
Freedom of expression is a constitutional imperative. It’s not as if a majority of the people on their own will always achieve and maintain it. Had that been the case, totalitarian regimes in the guise of socialism or autocracies disguised as democracies could not have come into being. Many people might opt for the security of ‘unfreedom’ rather than the uncertainties of freedom.
Many written constitutions understand this historical reality and, therefore, guarantee freedom of expression as an enforceable fundamental right. This is the rationale behind Article 19(1)(a) of the Indian Constitution, which says that except by way of reasonable restrictions under Article 19(2), a citizen’s freedom of thought and expression cannot be curtailed. If a legislation or executive order tends to abrogate this liberty, the constitutional courts will have to scan such action.
There would be many temptations—political or otherwise—for the regime of the day to promulgate draconian laws. As famously said by James Madison and reiterated by Justice Felix Frankfurter of the US Supreme Court, all power is “of an encroaching nature”. Therefore, judicial vigilance on curtailment of freedom is the ultimate safeguard in such situations.
On December 1, 1948, Thakur Das Bhargava underlined in the Constituent Assembly the need for the restrictions on freedom to be reasonable. He asked, “Are the destinies of the people of this country and the nationals of this country and their rights to be regulated by the executive and by the legislature, or by the courts?” He held that “the Supreme Court should ultimately be the arbiter and should have the final say” in such situations. He added, “If you put the word ‘reasonable’ (in the article later numbered 19), you will be giving the courts the final authority to say whether the restrictions put are reasonable.”
Two things follow: any restriction on speech should be reasonable, and if it’s not, it’s for a constitutional court to strike down the unreasonable act.
In Kaushal Kishor (2023), the Supreme Court considered whether there could be restrictions on the freedom of speech of public functionaries, other than what is permissible under Article 19(2). The question was correctly answered by the court in the negative. Kaushal Kishor, among other things, dealt with hate speech by political leaders and came down heavily on such acts. Yet, crucially, the basic embargo against additional restrictions was clearly upheld.
During a hearing in Qurban Ali (2022), when Justice K M Joseph, who led the bench, was about to suggest more laws to regulate hate speech, the possibility of having more draconian laws and their selective use was highlighted against what fell from the bench. A view expressed by legal scholar Nadine Strossen in her book Hate: Why We Should Resist it with Free Speech—the remedy against hate speech lies in more speech, and not in censorship—was cited by this writer, which the bench graciously accepted.
Criminalising joke or profanity also requires a cautious approach. The judicial restraint shown by the benches in Kaushal Kishor and Qurban Ali in not suggesting additional regulations should have been a guiding light in the Allahbadia case as well.
It’s not as if there is any vacuum in Indian law on obscenity. The Supreme Court in Ranjit Udeshi (1964) invoked the Hicklin test based on the potential of the work to deprave or corrupt a vulnerable reader. That led to the endorsement of punishment for possessing or selling D H Lawrence’s novel Lady Chatterley’s Lover. However, in Aveek Sarkar (2014), the court discarded this outdated approach and adopted the community standard test.
Obscenity or profanity is very well addressed by the existing laws in India. Section 67 of the Information Technology Act says that publication or transmission of obscene materials in the electronic form is punishable. Sections 294, 295 and 296 of the Bharatiya Nyaya Sanhita also penalise obscenity. Provisions in the Indecent Representation of Women (Prohibition) Act also are effective. Therefore, the perceived legal vacuum on the topic is a myth, which the top court and the Centre unfortunately failed to appreciate.
Allahbadia’s case shows it’s not the dearth of laws, but abuse of the existing ones in registering multiple police complaints that’s of concern. The misuse, disuse or overuse of laws is an Indian reality. It has happened in the recent past to victimise political dissidents and journalists who dared to speak truth to power.
The Nagarik Suraksha Sanhita or criminal procedure code permits the registration of multiple police complaints on the same incident, and it is by using the law’s indulgence that such complaints are drawn up.
This complex issue requires a judicial solution, which is the real challenge the court will have to take up for consideration in Allahbadia’s case. Instead, if the court treads the wrong path by issuing gag orders against those who approach it and instigating the executive or the legislature to come up with additional restrictions, it would be antithetical to the counter-majoritarian role that the constitutional courts are supposed to play.
(Views are personal)
(kaleeswaramraj@gmail.com)
Kaleeswaram Raj | Lawyer, Supreme Court of India