Opinion There is a line between criticising the government and breaking the law. India’s courts have said it many times
Bombay High Court has pulled up the police for arresting a college girl in Pune for merely sharing an Instagram post on Operation Sindoor
Hearing the student's plea on Tuesday, a vacation bench of Justices Gauri V Godse and Somasekhar Sundaresan at the Bombay High Court said that she should be released from jail to appear for exams. (Express Archive Photo) 
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It was 2012. Two young girls were arrested by the Mumbai police for expressing their discontent over a complete shutdown of the city after the death of Shiv Sena leader Bal Thackeray. Despite their subsequent release from custody, it took another three years and a landmark judgment to rule out the legal validity of the grounds for their arrest.
The recent arrest of an engineering student from Pune for her Instagram story about Operation Sindoor — she was later granted bail by the Bombay High Court — shows that the needle hasn’t moved much since then. Notably, removing the story and tendering an apology shortly after did not offer any relief to the teen, as she spent over two weeks in jail. She was also rusticated from college, barring her from sitting for the examinations. It was only after the Bombay High Court’s intervention, which pulled up the police for a “radical step,” that she got temporary relief. The investigation, however, would go on, and she would not be allowed to leave the state without permission.
In the last few years, the constitutional right to freedom of speech and expression has been compromised on many occasions. We tend to forget that criticising those in power is different from breaking the law. The continuous clampdown on political commentary, especially on social media, repeatedly highlights the blurring of such lines.
Be it the protests on the JNU campus in 2016, the anti-CAA protests, or one-off social media commentary by individuals, the “anti-national” label and subsequent police action seem to be predictable consequences. The resort to national security and integrity as a ground for an embargo on free speech makes the “reasonable restrictions on free speech” doctrine hollow.
According to the central government’s own submission in Lok Sabha, between 2018 and 2022, there were over 8,000 arrests for anti-government activities. Under the erstwhile Indian Penal Code, the colonial-era Section 124A was used to prosecute any expression or activity that led to disaffection towards the government. The lack of clarity of this provision, which led to numerous wrongful detentions, was acknowledged by the government itself.
However, in the Bharatiya Nyaya Sanhita (BNS), the government replaced it with Section 152. This section punishes people for “words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means” which endanger the unity, sovereignty, and integrity of India. The retention of the core principles of sedition in Section 152 makes the intention of the government clear.
However, the Indian judiciary, time and again, has come up with strong guardrails against any abuse of law. One of the most controversial provisions — Section 66A of the Information Technology Act, 2000, often misused to arrest people — was declared unconstitutional by the Supreme Court in Shreya Singhal vs Union of India in 2015. This landmark judgment also impacted the interpretation and application of sedition laws. It denounced arbitrary restrictions on speech by highlighting the three-fold test of “necessity, proportionality, and legality”. The court stated that mere expression that does not entail a clear and imminent incitement of danger or harm cannot be held as a ground for curtailment of speech, let alone criminal prosecution.
Recently, in the case of Tejender Pal Singh vs State of Rajasthan (2024), the Rajasthan High Court echoed this sentiment and said that Section 152 should not be used to stifle dissent. The court also urged the state to distinguish between mere advocacy or discussion and a causal link between the expression and its consequences. The latter lays the ground for criminality; the former falls within the realm of freedom of speech and expression.
Arbitrary and excessive restrictions do little to preserve public order and integrity; rather, they undermine the basic fabric of a democratic society. If the state doesn’t show restraint, its radical reaction is bound to have consequences.
The writer is Outreach lead at Nyaaya, an initiative of Vidhi Centre for Legal Policy
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