Does freedom of speech give you the right to say anything?

A recent controversy has erupted around popular Youtuber Ranveer Allahbadia’s comments at a comedy show. It raised questions on whether evidently obscene and perverse content can be permitted as part of freedom of speech and expression. The Youtuber had made a sexually coloured remark involving parents in jest at the show. This has attracted criminal proceedings against him. FIRs have been registered against him in Maharashtra, Assam and other states. He has approached the Supreme Court for quashing of the FIRs. While granting him protection, the Supreme Court made a few observations about the obscenity and his comments. 

What did the Supreme Court say?

The Supreme Court allowed Allahbadia’s petition and clubbed the FIRs. It granted him the interim order of protection from arrest in relation to all these FIRs. The Supreme Court also granted him protection from arrest from any future FIRs that may be lodged in this matter. The court also permitted him to seek police protection against the death threats made against him. However, the court has imposed certain conditions on him. These include, prohibition on travelling outside the country, unconditional cooperation with the ongoing investigation, prohibition on him producing or releasing any new video on his channel or any other media outlet. 

Besides, the Supreme Court made certain oral observations condemning his comments and stated, “no one has license to speak whatever they want against norms of society.”

This observation by the Supreme Court brings us to the issue of the legal limitations to our fundamental right to freedom of speech and expression guaranteed by the Indian Constitution under Article 19(1) (a). 

What are the reasonable restrictions to Article 19(1)?

Article 19(1)(a) of the Indian Constitution grants us the right to freedom of speech and expression. It is paired with Article 19(2) which lays down certain restrictions that may be imposed on our freedom of speech by way of a Government order or a court judgment. These include 

• interests of the security and sovereignty of India;
• friendly relations with Foreign States;
• public order, decency or morality; 
•  contempt of court;
•  defamation or incitement to an offence. 

Through the first amendment to the Constitution brought about in 1951, the test of “reasonableness” was introduced to enable courts to review these restrictions on the freedom of speech and expression. However, no law concretely defines the abovementioned grounds for restrictions. It is interpreted according to the context and earlier judicial decisions. 

The Supreme Court in the  Bobby International and Anr. vs Om Pal Singh Hoon and Ors. (1996) had stated that material that is evidently indecent or obscene may be transmitted through media only if it is necessary to core message of the larger pieces of content, otherwise it can be restricted under Article 19(2).  

What are the laws on obscenity in India?

While no law in India defines ‘obscenity’,  the Bharatiya Nyaaya Sanhita (2023) and the Information Technology Act (2000) deal with offences related to obscenity. Indian courts routinely interpret the acts alleged to be obscene to determine whether they can be punished under the aforementioned laws by adopting the following tests : 

1. The Hicklin test which checks if that object on its own can potentially corrupt a susceptible audience, like children
2. The Roth test  which checks if that object as a whole can evoke lustful thoughts in a reasonable person
3. The Community standard test which checks if the material is obscene according to the contemporary artistic expressions and community standards 

If the offence of obscenity is made out by the the courts, the perpetrator can be punished under the following laws  : 

1. S.67 of the Information Technology Act for publishing or distributing obscene material online
2. S. 67A of the IT Act for publishing or distributing sexually explicit objects online
3. S. 292 and S.293 of the BNS  for sale and distribution of obscene objects

To learn more about the offence of obscenity in India, read our explainer here.