Introduction

In a democracy, the judiciary acts as the guardian of fundamental rights, ensuring that executive and legislative actions remain within constitutional limits. However, recent judicial pronouncements urging the executive to tighten controls over online speech raise a worrying question: Is the Court inadvertently enabling state encroachment into constitutionally guaranteed freedoms? This concern is sharpened by the backdrop of the IT Rules, 2021, which already tilt power heavily towards the government in regulating digital speech.

Expanding Powers of the Executive over Free Speech

1. Judicial Instructions: The Supreme Court recently directed the Union government to frame guidelines on regulating online speech.
2. Problematic Precedent: Instead of protecting rights, the Court’s instructions risk empowering the executive to expand censorship powers under vague grounds like “misuse of freedom of speech.”

Digital Speech: Between Regulation and Censorship

1. IT Rules, 2021: These rules already allow the government to flag and order removal of online content, with penalties for intermediaries.
2. 2023 Amendment: Expanded scope to hold social media companies accountable for user-generated content, giving the state wide-ranging discretionary powers.
3. Challenge Pending in SC: These rules are already under constitutional challenge, making further expansion questionable.

The Risk of False Righteousness

1. Distasteful vs. Criminal: While hate speech and incitement to violence are already criminalised, regulating distasteful humour or dissenting opinions risks expanding censorship beyond constitutional boundaries.
2. Chilling Effect: Citizens begin to self-censor, fearing repercussions for expressing views.
3. Suppression of Creative Expression: Film producers, directors, and journalists face FIRs and restrictions, stifling art, reporting, and debate necessary for a vibrant democracy.

Judiciary’s Institutional Role under Question

1. Protector of Rights: The Court is constitutionally mandated to check executive overreach.
2. Risk of Overstepping: By urging executive rulemaking, the judiciary risks acting like an unquestioned lord in a feudal setup rather than a rights-protecting institution.
3. Misplaced Priorities: Instead of fortifying existing protections against hate speech, the Court seems to encourage executive expansion into grey zones.

Broader Democratic Implications

1. Weaponisation of Laws: Governments have a record of using regulations to target political opponents and inconvenient voices.
2. Threat to Democratic Discourse: An atmosphere of censorship undermines deliberation, dissent, and innovation—all vital for a progressive society.
3. Global Comparison: Mature democracies often rely on civil remedies and self-regulation, rather than empowering the state to police thought and humour.

Conclusion

The judiciary’s role is not to expand executive power but to ensure constitutional freedoms are protected. Hate speech and incitement to violence are already criminalised; expanding censorship to regulate humour, dissent, or artistic expression risks creating an atmosphere of fear and conformity. The Supreme Court must remember its constitutional role as the sentinel on the qui vive—guarding liberty, not enabling its curtailment.

PYQ Relevance

[UPSC 2014] Discuss Section 66A of the IT Act, with reference to its alleged violation of Article 19 of the Constitution.

Linkage: The present debate on the Supreme Court urging the executive to frame guidelines for regulating social media echoes the concerns raised in Section 66A of the IT Act, where vague terms led to misuse against free expression. Just like 66A, expanding executive powers risks creating a chilling effect on speech beyond Article 19(2)’s reasonable restrictions. Both highlight the judiciary’s responsibility to act as a protector of rights, not an enabler of censorship.

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