Opinion ≠ Offence

The State is not an abstract entity. It is run by individuals who often forget who they once were, and that, in the end, most of them fade into obscurity. An online post can now function as political speech, protest, satire, report, and dissent. Yet increasingly, the modern State’s answer to online criticism is not rebuttal of ideas, but coercive use of criminal law: FIRs, summons, seizures, assault, or arrest.

This phenomenon raises grave moral questions, like: Is a citizen free to choose or create their politics? When citizens are arrested merely because a political post (say, a cartoon) is sharp, mocking, embarrassing, or hostile to public officials, the answer, in practice, is No. The left often demands political correctness. The right increasingly demands patriotic correctness. Those still capable of independent thinking cannot be expected to walk on eggshells, online or offline.

In principle, Article 19(1)(a) of the Constitution assures that mere criticism of the government cannot be treated as a crime unless it incites violence, public disorder, hate speech, threats, or other clearly unlawful conduct. This piece is not a defence of hate speech, riot-incitement, communal provocation, threats, or sexually abusive digital harassment. It is a defence of the principle that mere criticism of politicians or government officers cannot be answered with arrest.

The greater danger today is not only the misuse of substantive offences, but the misuse of process. Criminal procedure is made an instrument of censorship. In many online post cases, the punishment begins long before trial. A person may ultimately be acquitted, or the FIR quashed, yet the arrest, humiliation, travel, legal costs, and associated fear help extort silence. Should not citizens be free to live or speak under the law, rather than by the leave of those in power?

We are trapped in contradictions. Public abuse and online beratement of opposite camps are rewarded with fleeting digital fame. Meanwhile, even satire risks legal consequences - a remarkable double standard for expression. Bertrand Russell put it aptly: “Conventional people are roused to fury by departure from convention, because they see such a departure as a criticism of themselves.”

The legal history of online speech regulation in India is instructive. Section 66A of the Information Technology Act, 2000 once criminalised sending messages deemed “grossly offensive” or causing “annoyance” or “inconvenience.” Its vague and overbroad language made it a notorious weapon against online expression.

In Shreya Singhal v. Union of India (2015), the Supreme Court struck down Section 66A as unconstitutional, recognising that vague penal standards cannot be allowed to chill legitimate online speech. Section 66A, however, lingers like a vestigial appendix in the legal imagination. It is no longer useful, but still sometimes causes flare-ups in how online speech is treated, especially dissent and satire.

The erstwhile sedition provision, Section 124A of the Indian Penal Code, was frequently invoked against political dissent. In Kedar Nath Singh v. State of Bihar (1962), the Supreme Court kept the provision alive by construing it narrowly. Later, in S.G. Vombatkere v. Union of India (2022), Section 124A was effectively placed in abeyance pending reconsideration.

The Bharatiya Nyaya Sanhita, 2023, through Section 152, introduces an offence concerning acts that endanger the sovereignty, unity, and integrity of India. Critics argue that it risks reintroducing sedition-like principles in a new form. In August 2025, the Supreme Court issued notice on a challenge to the constitutional validity of Section 152. If dissent in the real world is protected, how does it become a crime online? Concerns about online politics-related arrests have since intensified with legislative reform.

Recent events show this is a practical concern across different forms of state response to online speech. In 2020, a civil engineer alleged he was taken by police to a Maharashtra minister’s residence and assaulted over a social media post, reflecting allegations of physical coercion linked to online criticism. In 2021, Delhi Police registered FIRs in the “toolkit” case, including against a Bangalore-based climate activist over material related to criticism of the government’s handling of the farmers’ protest, illustrating the use of criminal process against digital expression. More recently, in November 2024, Andhra Pradesh reported a large-scale crackdown involving 680 notices, 147 cases, and 49 arrests in a week over social media posts linked to opposition activists. In 2025, the Allahabad High Court refused to quash an FIR against a 24-year-old for Facebook comments about the Prime Minister, signalling troubling judicial deference to political power and shrinking protection for free speech, both online and offline.

Fortunately, a few other courts have begun to push back, reaffirming that criminal law cannot be used to silence political dissent. In 2025, the Himachal Pradesh High Court held that merely posting “Pakistan Zindabad” on Facebook, without denouncing India or inciting rebellion, violence, or separatist activity, did not automatically amount to an offence under Section 152 of the BNS. In February 2026, the Patna High Court quashed criminal proceedings arising from a political speech, holding that mere expression of views, even if critical or inconvenient, cannot be converted into criminal liability absent specific ingredients of an offence. Most recently, in March 2026, the Telangana High Court held that mere forwarding of social media content, absent the requisite statutory intent, does not attract offences under the BNS, and quashed the proceedings as an abuse of process.

These developments reveal the emerging political battlefield: not whether truly unlawful speech may be punished, but whether criminal law is being used to suppress ordinary lawful political activism, criticism, satire, partisan speech, and online dissent. This controversy must be understood through four propositions: 

(a.)  First, political criticism is the most protected form of speech in a constitutional democracy. Criticism of ministers, parties, legislatures, or government policy cannot be criminalised merely because it is unpleasant, exaggerated, sarcastic, or caustic. Democracy does not grow on applause. It grows on criticism because public offices, more often than not, are best run by brickbats, not bouquets.

(b.) Second, the Constitution permits restriction only on narrow grounds under Article 19(2): public order, security of the State, defamation, incitement to an offence, etc. Thin skin, bruised egos, and wounded political vanity find no mention in the Constitution. Annoyance to politicians and officers is about as constitutionally significant as the public waiting in traffic for VIP convoys to pass.

(c.)  Third, arrest in speech cases must be exceptional, never routine. Where the alleged offence arises solely from an online post, police must demonstrate the actual ingredients of the invoked offence and the necessity of arrest, not merely the existence of outrage. Criminal law cannot be deployed to investigate imagined insults or to guard the fragile sleep of the powerful.

(d.) Fourth, the true constitutional injury often lies in process abuse. Even where prosecutions fail, the act of registration, seizure, summoning, interrogation and arrest itself chills speech and subdues opinions. It is no accident that one often finds a citizen muttering in court corridors, driven half-mad by the process itself. The danger is clear and present.

The principle of democratic tolerance becomes even more important in the social media era, where ideas, opinions, and expression have been widely democratised and made accessible to all with the internet. Democratic speech online is frequently emotional, polemical, sarcastic, and performative. Constitutional protection does not vanish online. The law punishes incitement, not irreverence.

The State often invokes public mischief, fake news, or similar provisions against online circulation.  This is crucial. Online ecosystems are messy: users repost, forward, comment, react, and quote-tweet. Criminal liability cannot be fastened solely on digital proximity. Mens rea, statutory fit, and actual nexus to the prohibited harm remain sine qua non.

The accused person is called to the station, devices are seized, bodily harm is inflicted, family is alarmed, local stigma follows, and bail becomes urgent.  The Karnataka DGP circular of February 2026 recognises this danger by directing police to stop “mechanical” FIRs in social media cases. This implicitly acknowledges that the existing practice is widespread abuse.

The Constitution protects criticism, not criminality. Therefore, the correct legal distinction is that protected speech includes: criticising an officer or a minister, alleging corruption or incompetence (subject to civil/defamation boundaries), satire, memes, caricature, parody, calls for resignation, protest, boycott, and public accountability, harsh or exaggerated political commentary.

Potentially punishable speech includes direct threats of violence, doxxing or targeted harassment, sexually explicit abuse/obscenity, morphed content designed to humiliate or provoke, communal incitement, deliberate fabricated content with proximate risk of disorder, and advocacy of rebellion/secession with requisite intent and nexus. The State may punish the latter. It cannot be allowed to reclassify the former lazily.

In this ultra-connected age, the question arises: Are we truly free? Existentialist thinkers such as Sartre, Camus, Nietzsche, and Beauvoir argued that freedom is essential to human existence. Individuals define themselves through freedom, not submission. A society that punishes opinion risks turning citizens into subjects of authority rather than participants in democracy.

A common defence of arrests in online speech cases is that social media is uniquely dangerous: it spreads fast, amplifies rumours, and can trigger real-world unrest. This is true, but by half. Constitutional law does not deny the dangers of digital virality; it demands precision in response. The fact that speech travels quickly does not dilute Article 19(1)(a). It only strengthens the need for careful enforcement.

Another argument is that politicians, like any citizen, deserve protection from defamation and abuse, and that is true in principle. But criminal law should not be used to protect the image or status of public office. In a democracy, public figures must dutifully accept more criticism, mockery, and strong language than private citizens. Public office does not confer immunity from scrutiny. Security guards should suffice. If anything, leaders should be more careful in how they engage with the public, not less. The law should step in only where there is clear defamation, real threats, obscenity, incitement, or other genuinely unlawful conduct.

A third argument is that harsh political speech can erode trust in institutions. But the Constitution does not protect institutions by immunising them from criticism. Indeed, the opposite is true: institutions derive democratic legitimacy from remaining answerable to criticism. They begin losing legitimacy the moment they stop answering. When they cannot persuade, they prohibit. To criminalise vigilance and distrust itself would be to constitutionalise obedience and corrupt the national conscience.

Finally, it may be said that courts can always quash weak FIRs later. That argument misunderstands and trivialises the injury. A quashed FIR does not erase arrest, custody, legal costs, digital seizure, bodily harm, reputational damage, or the message sent to others watching. By the time a High Court intervenes, the chilling effect is already in place. The actions of excitable politicians and officers must never be allowed to seek immunity behind the intangible personality of the state.

In a republic, the citizen is not a subject, and government operators are not emperors immune from ridicule. The Constitution protects the right to speak against power precisely because power, by its nature, seeks comfort in stability and resists scrutiny. Democracy is meant to rotate power. India’s 78-year history betrays a strong tendency towards political servility: one party for about 70% of the time, one family for nearly half. If citizens stop watching, how long before power stops pretending to rotate at all?

If online criticism of politicians is met unopposed with FIRs, arrests, and criminal intimidation, then the issue is no longer merely one of speech regulation. It becomes a question of moral and democratic character. A State that treats criticism as sedition, embarrassment as instability, and dissent as disorder risks criminalising the very freedoms from which it legitimises its authority.

The line, therefore, must be drawn by the public with iron hands. Where there is incitement, threat, communal provocation, obscenity, or deliberate unlawful harm, the law may act. But where there is only criticism, sharp, mocking, partisan, or uncomfortable, the answer of the State must be rebuttal, never handcuffs.

For if citizens can be arrested merely for making power uneasy, then liberty survives only at the feet of the all-powerful. And that is not constitutional governance. That is democracy under police heels. That is democide. Arrest, in a constitutional order, is not a reflex of power but a test of its discipline. Power proves its legitimacy not in its capacity to punish, but in its willingness to restrain itself. The ability to stay the hand of vengeance and voluntarily submit even adversaries to the judgment of law is among the greatest tributes power pays to reason.

The mere existence of an allegation does not justify deprivation of liberty. The State must demonstrate necessity. Even when justified, arrests for online posts must be carried out within the legal framework, because, when these limits are removed, arrest becomes a tool of punishment without trial. Our constitution and ethics do not permit us to bear such subjugation. Before liberty, mental or physical, is withdrawn, power must first justify purpose. If not, one can sit in the office but not in power.

***