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Freedom of Expression in India
Pahalgam and free speech: How liberal is this democracy?
Context: Freedom of expression (FoE) is a cornerstone of liberal democracy, essential for public reasoning, dissent, and institutional balance.
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- Yet, in India, the idea of FoE remains deeply contested—both misunderstood and misused—by the state, society, and even its critics.
- While India prides itself on being the world’s largest democracy, the reality of free speech reveals troubling contradictions, both in law and practice.
Recent Scenario
- Two recent cases highlight the precarious state of FoE in India. Both involved public commentary on the inclusion of Colonel Sofiya Qureshi in official briefings following India’s post-Pahalgam military action.
- One citizen pointed to a potential contradiction in her appointment and was promptly arrested, granted interim bail, and is now under Special Investigation Team (SIT) scrutiny.
- The other, who made communal remarks targeting her identity, walked free despite similar demands for investigation.
- This selective application of law showcases the growing ambiguity and politicisation of free speech in India.
Crisis of Freedom of Expression: Three Myths That Undermine It
India’s turbulent journey with FoE is not just about isolated cases—it’s shaped by three deeply entrenched myths that distort both legal protections and democratic principles.
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- State as a Neutral Arbiter of Free Speech: A widespread belief persists that the Indian state, as a constitutional authority, can be trusted to both protect and reasonably restrict FoE.
- However, a review of India’s legal and political history—starting with the First Amendment of 1951—reveals a systematic effort to curtail free speech rather than uphold it.
- Over decades, successive governments have used legal instruments to restrict dissent under vague pretexts like: National interest and anti-terrorism, Defamation, Promoting enmity between communities and Hurt sentiments.
- While these categories are sometimes valid, they are increasingly deployed to suppress criticism and dissent, rather than address genuine threats.
- FoE, in this environment, becomes a conditional concession, not a guaranteed right.
- Safeguards Are Weak and Selectively Enforced: Contrary to the belief that robust safeguards protect FoE, India’s legislative and judicial frameworks provide limited protection.
- Law enforcement agencies often act as tools of executive power, using FIRs, arrests, and police action to intimidate citizens.
- Political parties across the spectrum defend FoE when in opposition, but curtail it when in power.
- Judicial decisions often offer rhetorical praise for FoE, but lack clarity or consistency.
- Instead of offering protections, courts often emphasise vague notions like the “Lakshman Rekha” or the “limits of responsible speech”, creating legal uncertainty and fear about the consequences of speaking out.
- Misappropriation of FoE by Anti-Liberal Forces: The most dangerous myth is the deliberate misuse of free speech arguments by those who seek to undermine it.
- Hate speech is repackaged as “opinion,” and communal rhetoric is defended as “criticism.”
- This manipulative appropriation of FoE weakens its core purpose—to enable informed debate and protect minority voices.
- While the Constitution and court rulings do acknowledge limits to FoE—especially regarding hate speech—the political climate often rewards provocateurs who hide behind the banner of free speech to spread misinformation, bigotry, or false narratives.
- State as a Neutral Arbiter of Free Speech: A widespread belief persists that the Indian state, as a constitutional authority, can be trusted to both protect and reasonably restrict FoE.
- This not only distorts public discourse but delegitimises genuine dissent.
Is Freedom of Expression Essential to Democracy?
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- At the heart of the debate lies a fundamental question: Is FoE integral to democracy, or just a privilege for a few?
- Increasingly, democracy is reduced to electoral majorities and regular voting cycles, sidelining key liberal principles such as: Public reason and deliberation, Institutional checks and balances and Constitutional supremacy.
- True democracy thrives on a vibrant exchange of ideas, disagreements, and critical questioning.
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- Without FoE, these democratic processes crumble, even if elections continue to be held.
- When arrests are made for expressions critical of the state—or when hate speech is left unpunished—India risks separating liberal values from democratic governance, paving the way for authoritarian distortions of democracy.
India’s current crisis of freedom of expression is not just a legal or institutional failure—it reflects a broader erosion of democratic values. Legal reforms alone cannot safeguard FoE. What’s needed is a societal recommitment to liberal norms, and a collective understanding that free speech is foundational to democratic life, not an indulgence to be granted or denied by the state.
