The topic of freedom of expression and restrictions has once again come into a limelight with the recent controversy of the "India's Got Latent" Show which was aired on the Youtube, created by an Youtuber "Samay Raina", famous for his dark comedy on the social media platform.

Reasonable Restrictions on the Fundamental Freedom of Speech and Expression

The fundamental right of freedom of expression is as old as the constitution itself. The article 19(1)(a) provides that the every citizen has the fundamental right to express their opinions whereas the article 19(2) provides that in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence, the freedom of expression can be restricted.

At the birth of the constitution there were no such restrictions on the article 19(1)(a). But with the Constitution (First Amendment) Act, 1951, came several changes to the Fundamental Rights Part of the Indian constitution where it amended Article 19(1)(a) of the Indian Constitution to counteract the "abuse of freedom of speech and expression." This decision followed criticism in the press regarding the government's response to issues like the West Bengal refugee crisis and extrajudicial killings in Madras.

Initial attempts to censor the press were ruled unconstitutional, leading the government to employ judicial decisions as justification for limiting freedom of speech. Despite opposition concerns about democratic principles, the government proceeded with the amendment, citing international examples of regulating speech to prevent abuse. See also: Brij Bhushan v State of Delhi, March 1950, and Romesh Thappar v State of Madras, May 1950.

With the first amendment, various restrictions came into effect which affected the press and media alike. The government now had the power to block any circulations or publications stating the following reasons. It was upto Judiciary to decide whether it came under the reasonable restrictions or not.

Probably one of the most famous incidents of modern India content censorship is the case of English author DH Lawrence's last novel Lady Chatterley's Lover which was first published in Italy in 1928, after which a series of legal trials were ensued against the publishers in various jurisdictions on charges of obscenity. In India, in the case of Ranjit D Udeshi v. State of Maharashtra (1964), Ranjit Udeshi, one of the four partners of Happy Book Stall in Mumbai, was sued along with his partners for selling uncensored copies of Lady Chatterley's Lover under Section 292 (punishment for selling obscene materials) of the Indian Penal Code (IPC).

The Supreme Court of India relied on the very famous Hicklin's Test to decide whether the book has obscenity or artistry. The Hicklin Test was established by the English court in 1868 in Regina v Hicklin. The court examined how to lay down a test for obscenity and said, "All material tending to deprave and corrupt those whose minds are open to such immoral influences was obscene, regardless of its artistic or literary merit." The Indian Supreme Court followed the same reasoning and held that the accused were guilty in the Ranjit Udeshi case.

The article 19(1)(a) is not absolute in Indian jurisprudence, it can be reasonably restricted on the grounds mentioned in the article 19(2) of the Indian Constitution. In the case of Ranjit Udeshi, it was settled that the Hicklin's Test was not violative of the fundamental freedom of speech and expression. It was held by the apex court that when there is a mix of obscenity and artistry in a content, the obscenity must be trivial to be ignored.

The Ranjit Udeshi case was overruled in the case of Aveek Sarkar v State of West Bengal (2014 SCC) by the Supreme Court. The case was about the charge of obscenity regarding a bare-bodied photograph of tennis player Boris Becker and his fiancee.

While doing the Hicklin's Test, Supreme Court said:
'We do not censor to protect the pervert', quoting from Bobby Arts International v Om Pal Singh, where Shekhar Kapur's famous film Bandit Queen, a 1994 Hindi-language biopic on 'Bandit Queen' Phoolan Devi with Seema Biswas in the lead was sued for obscenity and display of nudity. This was a landmark win for freedom of speech and expression and artistic representation in India.

Developments in Digital Media Censorship

With advancement in technology comes various boons and banes. New technologies such as AI, Machine Learning, OTT Platforms, social media, Cryptocurrency, etc. makes life easier and more convenient but also comes a lot of challenges such as misinformation, deepfake, unregulated content creation, digital scams, etc.

The digital crimes are rising at a rapid rate, people abusing their freedom of speech and expression on the digital space, both government and judiciary is finding ways to tackle such issues. With recent bills coming into the parliament such as the Fake News Bill 2019, The OTT Platforms Regulatory Authority Bill 2021, The Prohibition of Fake News on Social Media Bill, 2023, Press & Registration of Periodicals Bill, 2023, The Digital Personal Data Protection Act (DPDP Act) of 2023, The Indian Media Services (Regulation and Licensing) 2024 and the upcoming bill of The Digital India Act, are all such laws that aims to regulate and censor the digital media space such as content creation.

Still, there are challenges in restricting the digital space due to ongoing battles of the government with the non-government organisations and people who advocates freedom of expression on internet. It is now the responsibility of judiciary to carefully balance the freedom of expression and the reasonable restriction on the internet.