Introduction
India’s Constitution enshrines the right to free speech and expression (Article 19(1)(a)), but also permits “reasonable restrictions” on grounds like public order, decency, security, or communal harmony (Article 19(2)). Courts have been grappling with new flashpoints for this debate in recent months. For example, an Instagram influencer was remanded to custody over an allegedly offensive video; a university professor’s social-media posts have landed in the Supreme Court; and the Bombay High Court struck down a government rule on online content. These cases highlight the tension between open debate and legal limits. In what follows, we summarise each case’s facts, then analyse the legal balance between free speech and restrictions.
Case Study: Influencer Sharmishtha Panoli and Social Media Speech
On 30–31 May 2025, a Kolkata court remanded 22‑year‑old Instagram influencer Sharmishtha Panoli to 14 days’ judicial custody after her arrest in Haryana. Panoli, a law student, had posted a video (related to India’s “Operation Sindoor” military strikes) that criticised Bollywood actors for remaining silent and made remarks about Islam. The video went viral, drawing sharp criticism and reportedly death threats. By the time Kolkata Police formally lodged an FIR (at Garden Reach police station), Panoli had deleted the clip and apologised. Still, she was charged under sections of the Indian Penal Code aimed at communal discord (including provisions against promoting enmity and hurting religious sentiments).
According to news reports, police made multiple attempts to summon Panoli and her family. When they could not be found, a warrant was issued, and she was taken into custody from Gurugram. On 31 May, she was produced before an Alipore court and remanded to judicial custody until 13 June. In court, her bail plea was rejected. These reports note that Panoli’s statements were treated as violating the IPC’s communal-harmony provisions. (She is said to face charges under multiple sections related to enmity between groups and religious disharmony.) The legal outcome of her case is still pending. Still, it illustrates how social media comments can trigger criminal action in India, especially regarding religious or national security themes.
Case Study: Academic Speech at Ashoka University
Another high-profile matter involves Ashoka University professor Ali Khan Mahmudabad. In mid-May 2025, Mahmudabad – an Associate Professor and head of Political Science – was arrested in Haryana after two FIRs were filed over his contentious social-media posts about “Operation Sindoor” (India’s post-Pahalgam counter-terror strikes). In his posts, he had sharply criticised official briefings on the operation as mere “optics” and “hypocrisy”. Supporters noted that he had praised the military while calling for better protection of Muslim citizens. Nonetheless, authorities charged him under laws applicable in Haryana.
The case went to India’s Supreme Court when Mahmudabad sought protection. On May 21–22, the Supreme Court (Justices Surya Kant and N.K. Singh) granted him interim bail. However, the Court imposed a gag order: it allowed Mahmudabad to speak freely. Still, it forbade him from posting or talking about anything related to the FIRs or investigations against him. The bench asked the Haryana government’s Special Investigation Team to report on their probe, and the National Human Rights Commission took note of the arrest. In sum, the Court acknowledged Mahmudabad’s fundamental right to expression, but balanced it against concerns about his ongoing case.
Mahmudabad’s supporters frame this as an academic freedom issue involving a university professor’s speech. (The Constitution does not explicitly guarantee academic freedom, but it is seen as part of the broader free-speech ethos.) The authorities, by contrast, emphasise the content of his speech and the need for investigation. Notably, the Supreme Court’s bail order did not bar Mahmudabad from all speech, only from commenting on the incidents under investigation. This case is still pending further hearings. It highlights the delicate balance courts seek between protecting a professor’s critical commentary and enforcing reasonable restrictions when public order or national security is asserted.
Case Study: Bombay High Court on the “Fact-Check Unit” Rule
In another recent ruling, the Bombay High Court struck down a new government rule governing online content. Comedian Kunal Kamra and others had challenged an amendment to the IT Rules (2023) which created a government fact-check unit empowered to flag or remove any social-media post about government affairs deemed “fake, false or misleading.” A three-judge bench of the Bombay High Court delivered a split verdict. Initially, two judges were divided; a third judge (Justice A.S. Chandurkar) acted as a tiebreaker on 20 September 2024.
In Kunal Kamra v. Union of India, the court held that the fact-check amendment (Rule 3(1)(b)(v) of the IT Rules 2023) was unconstitutional. Justice Chandurkar agreed with the view of Justice G.S. Patel (one of the earlier judges) that the rule violated Articles 14, 19(1)(a) (free speech), and 19(1)(g) (right to carry on business). The majority found the rule was ultra vires the IT Act, too vague, overbroad, and liable to chill speech on digital platforms. (Justice Neela Gokhale had upheld the rule as a reasonable measure to curb misinformation, but she was outvoted.) On 26 September, a formal bench confirmed the law’s invalidation by a 2:1 majority.
In practical terms, this means intermediaries (like social media companies) no longer have to take down content on the sole say-so of a government fact-check unit. The court’s reasoning emphasised that a government-appointed “ministry of truth” would make the government both judge and jury of public discourse. By striking down the rule, the Bombay High Court applied a strict test for content regulation, reinforcing that online speech enjoys broad protection under the Constitution. This decision is among the strongest reaffirmations of free expression in the digital age.
Analysis: Balancing Free Speech and Restrictions
These cases exemplify how Indian courts apply constitutional standards to speech controversies. Article 19(1)(a) guarantees freedom of expression, but Article 19(2) permits only reasonable restrictions on specific grounds. As the Supreme Court has stressed, those restrictions “must remain reasonable and not fanciful or oppressive”, and they cannot eclipse the core freedom guaranteed by Article 19(1)(a). Courts weigh factors like intent, context, and public order.
- Communal and Hate Speech Standards: In the Panoli case, the key legal issues involve sections of the IPC such as 153A(196 BNS) and 295A that forbid inflammatory remarks about religion or communities. Under precedents like Kedar Nath Singh v. State of Bihar (1962), the Supreme Court held that speech advocating enmity or hatred is punishable only if there is intent and a real tendency to incite violence. Panoli’s online video was treated as falling on the wrong side of that test. In ordering custody, the magistrate indicated a prima facie view that her comments could disturb public tranquillity. (She has not yet been convicted or acquitted, and her appeal is pending.)
- Scope of Academic Expression: The Ashoka University case touches on academic freedom. Though not a separately enumerated right, academic discourse generally falls under Article 19(1)(a). The Supreme Court’s interim order recognised that Mahmudabad has no wholesale ban on speech, but it allowed a targeted restriction to preserve the investigation’s integrity. This reflects a balancing approach: the Court upheld his fundamental freedom in theory, yet in practice imposed a limited “gag” where it found a risk (or at least asserted the need) of ensuring fair process. Such conditional bail orders are not unique, but they underscore how sensitive contexts (such as national security or communal harmony) can temporarily lead courts to curb expression.
- Digital Speech and Intermediaries: The Bombay High Court took a broader view of free speech in the online sphere. It struck down the fact-check rule precisely because it lacked safeguards. The judges applied the constitutional test rigorously: they found the rule arbitrary under Article 14 and manifestly violating Article 19(1)(a) and 19(1)(g). The result reinforces a principle from Shreya Singhal v. Union of India (2015): intermediaries generally enjoy immunity from users’ content unless a valid legal process is followed. By emphasising that platforms cannot be forced to censor content on mere government whim, the court advanced a pro-free-speech stance online.
- Evolving Jurisprudence: These decisions illustrate that Indian courts continue to lean towards protecting speech, while allowing only narrowly tailored restrictions. For instance, one recent Supreme Court bench underscored that people are expected to be “reasonable, strong-minded, firm and courageous” when hearing criticism, echoing a long line of cases that free speech must be judged by the standards of a robust society, not the most insecure or hypersensitive. The Kunal Kamra verdict cites equality (Article 14) to hold that even content rules must be non-discriminatory. In each case, the judiciary applied established tests: speech about a matter of public importance is broadly protected, but speech that crosses into clear incitement or falsehood with public harm can be curtailed.
To summarise: these cases show Indian courts applying familiar constitutional principles. They affirm Article 19(1)(a) as fundamental, yet recognise the state’s power under 19(2) when certain high-threshold conditions are met. Courts insist that those conditions be precisely defined. For example, the Bombay High Court invalidated a law for being vague and overbroad, and another recent Supreme Court ruling admonished that restrictions must not be “fanciful and oppressive”. The Panoli and Ashoka cases demonstrate that speech on religion or security issues is tested against those benchmarks: if remarks are seen to threaten harmony, legal action follows; if not, speech is upheld (e.g. Mahmudabad remains free to critique other issues).
Conclusion
The recent Panoli, Ashoka, and Bombay High Court cases underscore the continuing balancing act in India’s free speech jurisprudence. On one hand, the courts have reiterated that the Constitution vigorously protects open debate, especially on matters of public interest and on digital platforms. On the other hand, they have affirmed that some limits are permissible to guard public order, communal harmony, or due process. These developments leave the law of free speech dynamic and open-ended. Legal observers and students should watch closely how Indian courts resolve these tensions in future cases. As one judgment put it, Article 19(2) exceptions must stay “reasonable”. The direction these cases take will help define how broad or narrow the space for dissent and criticism remains in India going forward. The question, as ever, is where we, through our courts and lawmakers, will draw the line between liberty and restraint.
About the Author
Ruhan Deb is a third-year law student at Symbiosis Law School, Noida. He is keenly interested in litigation, focusing on Criminal Law and Competition Law. Beyond the legal realm, Ruhan is passionate about global politics and history, complementing his analytical approach to legal studies. His multidisciplinary interests reflect a commitment to understanding law in broader social and geopolitical contexts.