New Delhi: The arrest of Ashoka University professor Ali Khan Mahmudabad on 18 May 2025, a Sunday, in two cases registered against him and subsequent intervention by the Supreme Court in granting him interim bail while constituting a special investigation team to examine the meaning of his social media post, led to an avalanche of critique and commentary on the functioning of two branches of the Indian State—the police machinery and courts—when it comes to matters of free speech and expression. 

Depending on who you read, and which dots you join, many conclusions can seemingly be drawn from how the police and courts responded to the exercise of a constitutional right to free speech and its expression by the professor, amongst others, at a time when cross-border tensions were rapidly escalating. 

For me, a common denominator appeared to be the realisation across sectors that exercise of speech is hardly free and highly regulated in India. The regulations are not bright-line rules but fuzzy, undefined standards, and enforcement of these undefined standards also appeared as arbitrary as the standards themselves. 

We saw that not only with the past arrests and recent action against others—such as the arrest of Pune college student for reposting an Instagram story and a sedition case against a Malayalam actor for criticising the Prime Minister—and the steadfast refusal to act against others, but perhaps also with the sudden blocking, and equally sudden unblocking, of scores of social media accounts. 

No Legal Aberration

At which point, a question begs itself: Is all that happened legal? This seemingly simple question is in fact layered with complexity. 

There is the question of whether what someone says is permitted or not [see here for that discussion in context of Prof Mahmudabad]. A separate question is whether what someone says should be criminalised even if not permitted. 

There is, then, the question which I want to deal with: was there any legal aberration in the process of deciding whether an act of speech ought to be punished or censured, in the cases of Prof. Mahmudabad or several others? The answer to which, is an unqualified no. 

Let me state the point at its plainest shorn of legalese. Indian free speech law operates not by privileging the exercise of the right by citizens, but by privileging its restriction by the State. 

Take a look at Part III of the Constitution. Article 19(1)(a) guarantees freedom of speech and expression, but it is hemmed in by Article 19(2), which not only retained existing colonial laws, but permitted enactment of new ones. 

These impose “reasonable restrictions on the exercise of the right … in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency of morality, or in relation to contempt of court, defamation or incitement to an offence”. 

Each of the phrases in the above extract contains an ocean of possibilities on the face of it, and all that the Constitution requires at the first instance is for Parliament to repeat this mantra of 19(2) while enacting speech-restrictive laws. 

See Section 69A of the IT Act 2000, for instance, which is the source for blocking powers, and which was upheld by the Supreme Court. There is no higher burden, and it is well-established that criminal law can be used to prosecute persons for speech that falls within 19(2)—even defamation. 

The law then installs the executive as the first arbiters of acceptable speech since they are the enforcers of limits. 

Overbroad limits which countenance an ocean of possibilities translate into an infinite number of scenarios for police and other agencies to wield their powers, which naturally include powers of arrest when it comes to wielding criminal law. Interestingly, many speech related crimes which did not permit warrantless arrests before independence, such as sedition,  allow for warrantless arrests today. 

And, finally, we have our courts, which are placed as distant secondary arbiters for deciding whether the legislature or executive made a mistake. The distance of time and space between the courtroom and the actual exercise of free speech often makes such cases an exercise in futility as the harm is already done. But that’s not all. 

Courts are asked to discharge the adjudicatory role not by starting from a point of viewing any interference with speech with suspicion (be it by legislature or executive), but with deference, placing the burden upon citizens to justify claims to enjoy their rights. 

The critique of this structure of law has been made often enough, even by people as unfamiliar with constitutional law, such as a criminal law practitioner like myself, and so I will not spend any longer elaborating upon the multiple barriers that operate on the exercise of free speech in India. 

Instead, I want to use examples to make my point. Specifically, the exercise of ‘free’ speech by two rebellious political figures and what it entailed, during the 1960s which were a time of serious instability. 

Raj Narain & Criminal Law Amendment Act, 1932

Raj Narain is an immortal figure in Indian history. Long before he was challenging the election of Mrs. Gandhi, Narain was being prosecuted for fiery protests and speeches demanding land redistribution as a Socialist Party member. 

One of these prosecutions charged him with offences under section 7 of the Criminal Law Amendment Act of 1932 which effectively prohibited pickets or strikes. The stated object of the 1932 Act was to equip the colonial government with tools to quell the Civil Disobedience Movement. 

It would seem that neither independence nor the adoption of the Constitution, had not stopped the Uttar Pradesh government from using this anachronistic statute (it was not alone, mind you). 

A proud citizen of independent India, Raj Narain moved the Allahabad High Court challenging the validity of the 1932 Act on grounds that it violated Article 19(1)(a) [he had in 1956 also challenged Section 144 CrPC on constitutional grounds, so he knew what he was doing]. 

While the high court agreed that the law appeared to be a ”weapon” placed in the hands of a colonial government necessitated by the national struggle, this did not matter. 

All that mattered was whether the law fell within the boundaries of Article 19(2), and in deciding this question the Court began by assuming that the law did fall within the boundary. Article 19(2) permitted laws that restricted speech or expression “in the interests” of maintaining public order. 

A law prohibiting strikes or pickets, although created to ensure that the colonial government was not paralysed, cleanly fell within the bounds of Article 19(2). 

Obviously, Narain lost.

Narain’s case was only one example of this period when laws crafted and deployed by a colonial government to quell nationalist voices were easily retrofitted by the authorities within a new constitutional fabric of independent India. 

Just a few years later, in 1962, the Supreme Court would find almost nothing wrong in the use of sedition within the scheme of Article 19 while dealing with the speech of yet another politician, Kedar Nath Singh.

Perhaps what is most surprising is that, even today, the Criminal Law Amendment Act of 1932 continues to remain in force, finding its way into cases alongside its more modern counterparts such as the Unlawful Activities Prevention Act 1967.             

Ghulam Sarwar, Sangam, & Prejudicial Acts

In January 2010, politicians across party lines gathered in Patna to celebrate the birth anniversary of the late Ghulam Sarwar, a prominent member of Bihar politics especially during the JP era and its aftermath. 

During his life, Sarwar is described as being a constant thorn for the ruling class of Bihar, especially in the 1960s. He founded many Urdu language publications and the most prominent of these continued publication even after his death. This was Sangam, a periodical which began in 1953, and which would lead Sarwar to jail for several months during the 1960s.

Sarwar appears to have been prosecuted in 1959 under section 153A of the Indian Penal Code or IPC (as it then was) of 1860 for articles that condemned the selective indifference of the government in passing and enforcing cow slaughter laws. 

Sarwar was convicted by the trial judge, acquitted on appeal, and this acquittal was upheld by the high court, which found that there was no malicious intention to cause enmity between groups that could be discerned from the piece. It is pertinent that, in 1961, Parliament amended section 153A of the IPC, and removed the intention requirement from the clause while broadening the offence (you can read Article 14’s sedition database, which has extensively reported how the law was misused).

But even as the High Court upheld this acquittal in March 1965, a month later in April, Sarwar would lose in a petition challenging government action which did not imprison him, but sought to muzzle his periodical. 

The state government in 1964 claimed that Sangam was publishing reports that were ‘prejudicial’ under the Defence of India Act 1962 and Rules thereunder, and demanded a security of Rs 5000 (more than Rs 300,000 today) for continuing publication of Sangam.

The government identified 39 articles in Sangam which it claimed were prejudicial. None of these affected India’s defence, but the scope of prejudicial acts was much broader. 

It included acts that were “intended or likely” to “bring into hatred or contempt or to excite disaffection towards the government established by law in India” or “promote feelings of enmity and hatred between different classes of persons in India” or “cause fear or alarm to the public or to any section of the public”. 

Sarwar raised many arguments, and one challenged the law as being vague as it allowed for arbitrary exercise of state power. For the high court, though, there was nothing vague about the law. 

It rolled up the separate offences of sedition punished under section 124A IPC, promoting enmity under section 153A IPC, and mischief under section 50 IPC (defined under 505 IPC), and the meaning of these crimes was never in doubt. Instances of misuse could not change that. 

Which meant the only chance of success was defending the articles on their own terms. He had no chance. 

The High Court unequivocally held that an average reader would develop “hatred or contempt” for the government upon reading these articles, and cause fear or alarm in the minds of members of the Muslim community as well hatred in their minds towards the majority community. 

The 1965 judgment does not discuss the articles but focuses on 19 articles that the government said were the worst. There are short English summaries in the judgment of these nineteen articles, and they help us understand the context behind his argument about discrimination. 

In one article, Sarwar argued that he was being silenced for being Muslim, while others making more inflammatory speeches were roaming freely. In another, he lamented how extremely few Muslim candidates were being selected by the Public Service Commission. 

In the thirteenth article that was cited, Sarwar criticised the Congress government for being pseudo-secular, stating that “the government of India does not cease to be a Hindu government merely because its vice-president and four out of 51 in the central ministry, two governors and a few ambassadors were Muslim. The day-to-day activities of the government are not at all commensurate with its utterances”.

No Change, 60 Years Later

The concerns in Sarwar’s articles may seem surprisingly relatable even 60 years later. Equally relatable, it would seem, is the state’s reactions against a person seeking to engage in such speech acts. 

It is perhaps no coincidence that the FIRs against Professor Mahmudabad reportedly invoke, amongst others, sections 152, 196, and 353 of the Bharatiya Nyaya Sanhita—the decolonial equivalents of sections 124A, 153A and 506 of the colonial IPC.

There are some changes though, between 1965 and 2025. 

Firstly, although the ‘prejudicial act’ of the Defence of India Act 1962 allowed a one-size-fits-all muzzle upon speech, that was reserved for actual wartime scenarios. In times just short of war, and only escalation and de-escalation, that portmanteau clause must be disassembled to use its constituent parts.

Secondly, as I alluded to above, neither sedition nor the offence of making a statement prejudicing maintenance of harmony punished under 153A IPC were cognisable offences in 1965—police could not swoop in and arrest you without a warrant for these alleged crimes. 

This shift has been critical to the continued shrinking of the domain of Article 19(1)(a), in the face of Article 19(2). The older cases where courts had upheld the logic of penal laws criminalising speech could brush away misuse of the law by police as an aberration, knowing that this misuse could not directly impact the liberty of a citizen. A magistrate would stand in the way of an arrest. Not any more. The result has been devastating, especially for those who wish to question the regime.

I would argue that recent judgments of the Supreme Court such as those in Javed Hajam and Imran Pratapgadhi, and even the interim orders involving Prof. Mahmudabad and Vijay Shah, show us an unease with this present arrangement where the police can arrest first and understand the imputations and connotations of speech later. 

Different judges  are, naturally, responding differently to this unease, and until a Constitution Bench squarely deals with this issue, it would not be unsurprising to expect even more variation in judicial approaches to try and deal with excessive executive zeal in defending Article 19(2). 

In Imran Pratapgadhi, the Supreme Court summed this problem up nicely. The enforcement of free speech law makes it seem like it is not the right under Article 19(1)(a) which is privileged, but it is the restrictions under Article 19(2) which occupy pride of place within the state machinery. 

According to that bench of the Court, this was a perversion of the constitutional scheme, and it felt an urgent need to re-acquaint the State with the true import of the Constitution which gave primacy to fundamental rights. 

Imran Pratapgadhi was decided in March 2025, and Prof Mahmudabad was arrested in May. It is evident that 60-year-long tendencies will take much longer to be re-wired than a few months. 

In this process, we can either continue with selective outrage over individual cases, or supplement it with consistent scrutiny of the structure of our law—if we are really serious about restoring the primacy of Article 19(1)(a).

(Abhinav Sekhri is a Delhi-based lawyer who writes on criminal law and procedure.)

Get exclusive access to new databases, expert analyses, weekly newsletters, book excerpts and new ideas on democracy, law and society in India. Subscribe to Article 14.