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Legalities involved in use of 'freedom of expression and speech'

Written by:
Prachi Darji
Published on

Social Media and Article 19 of Indian Constitution

The advent of social media has given numerous people a universal platform to voice their opinions, comments, appreciation or to share their likes/dislikes openly. Today, the social networking sites like Facebook, Twitter, Instagram etc. have expanded the scope of public to express and speak, in other words, ‘Democracy in India’.

In India, our constitution has guaranteed ‘Freedom of expression and speech’ under Article 19(1) (a) subject to certain restrictions. The current scenario is that there are criminal laws in provision that put little restraint on this right in order to maintain public order and individual/ national privacy. These laws are imposed by the constitution under Article 19(2) but only on print media or electronic media. Interestingly, social Media is presently out of any regulatory scope of any such related laws/provisions.


Use/Misuse of Right of freedom of speech on Social Networking Sites

Indeed, Social Media is not bound to any limitations and is free from all kinds of restrictions. This virtual premise stores countless personal information as well as data in digital form and gives open access or visibility to everyone. Nowadays, it has become a part of daily routine of people to interact, share or get aware. Nevertheless, it comes with both merits and demerits. It’s time to envisage the impact of its positive effect or negative impact on the society as a whole.

Undeniably, it opens the door of awareness and interface, where people get the chance to learn deep about the cultures, traditions, aura, attributes, lifestyle of others. Moreover, social media sites allow everyone to voice their thoughts and discuss openly. It can unite the perceptions and perspective of people at one hand, where on other hand; it gives open privilege to devious minds to allegedly post offensive material of one or another.

People capriciously or responsibly make use of social media by way of tweeting, video-sharing, blogging or interacting. In most democratic countries like India, such posts/interactions are often scrutinized with an intention to ensure that right to freedom of speech, expression is not illicitly used. Also, that it doesn’t violate the individual right to privacy and data protection.

Another perspective is, that, such new face of interaction is restrained by several internet regulations and thus, strangles the constitutional right of Indian democracy i.e. freedom of speech.


Judgments and case studies exhibiting the ‘Status-quo’ of India -on violation of constitutional right on social media sites.

On 20 November, 2012, Police arrested two girls in ‘Bal Thackeray Facebook incident’, whereby, a girl Shaheen Dhada posted a comment on their Facebook wall on the demise of Shiv Sena Chief Bal Thakeray about his death. Her friend ‘liked’ her comment and later, ignited controversy. They were arrested under Section 295(a) of IPC and Section 64(a) of IT Act, 2000. Later, they were granted bail on surety of Rs.15,000 each and a written apology by them.

Another judgment as issued by Supreme Court, in view of public outrage over people being arrested for making comments or liking posts on Facebook, on January 9 was applicable to all states and UTs. It has advised and directed them not to arrest a person in any such case without prior approval of a senior police officer.

Can Section 66 of IT Act affect the social media posts or comments?

Section 66, IT Act, 2000 entails punishment for sending offensive messages/information via communication services including computer system by way of video, text, audio or images. It has subjectively defined the meaning of ‘offensive’ under its legal scope.

Section 66 of Information Technology Act is a broad provision but still considered by bureaucrats as ‘badly drafted’ provision. The reason being is that the scope and applicability of  this Act is quite wider than the Article 19(2) restrictions on Right to Freedom of speech and expression.

A case study reveals the Supreme Court verdict on 23rd March, 2015 where Supreme Court quashed down this Act by considering it vague. Under the case, a PIL was filed as based on this Section 66, IT Act, 2000 whereby the person was arrested for allegedly posting offensive material on social media. But, the verdict shocked the whole nation. The justice bench found this section infringing the constitutional right of freedom of speech and expression and thus, was illegal.


In India, every citizen has the right to freedom of speech and expression without any unjustified interference by public authority. Social Media is one such way for a common man to opinionate without any fear of frontiers and after Supreme Court verdict find their human rights protected. Though, the Government and Public Authorities may think differently. As per their opinion, they find social media an unregulated medium in the hands of citizens to voice and thus, carry an ample amount of untruthful, offensive and hurtful content.