What are Rights to Freedoms? How has the Right to Freedom of Speech and Expression fared in India? (part 3)

Case: Association for Democratic Reforms v. Union of India (2024) is a landmark ruling in which the Supreme Court struck down the Electoral Bond Scheme, devised through amendments to the Finance Act 2017 and the Companies Act 2013, as unconstitutional. The Scheme permitted companies and individuals to make unlimited and anonymous financial donations to political parties.

The Supreme Court ruled that such absolute anonymity in political funding directly violated the Fundamental Rights of the voter, reading the right to information as a fundamental component of the right of free speech in Article 19(1)(a). Citizens have the right to know so that they can make informed choices. In several earlier cases, the Court had held that freedom of speech and expression includes the right to acquire and disseminate information. It places a duty on public authorities to act transparently by providing information about their functioning to the citizens, necessary to add value to the country’s governance.¹

Critique of the Electoral Bond Scheme judgement:

This Scheme was first challenged in 2019 and again in 2021. Still, the Supreme Court delayed hearing the case or failed to halt the anonymous corporate donations flowing into political parties’ coffers until the decision was struck down in 2024. An investigation by independent media had revealed how this anonymous Scheme had been a cover for quid pro quo exchanges between the donating companies and the award of government contracts to these companies. Apart from the delay in delivering justice, the Court also refused to order a Special Investigation Team probe into the apparent quid pro quo findings, to order the confiscation of past bond funds, or to monitor subsequent campaign finance regulations.

Current Status of Freedom of Speech and Expression in India:

Free speech and expression face huge challenges in India. Broad, vague laws and executive overreach in pursuing criminal cases for online posts, digital misinformation, and pre-censorship of films are having a chilling effect on free speech and silencing legitimate dissent. Police have been quick to file criminal cases against social media influencers, journalists, stand-up comedians, academicians, and follow with their arrests. Courts, including the Supreme Court, are reluctant to grant bail, which leaves many in jail without trial for months, often years, with no closure on investigations or trials.

India ranks 24th out of 33 countries in a global survey by the Future of Free Speech conducted in 2024. India ranked 157th out of 180 countries in the 2026 World Press Freedom Index published by Reporters Without Borders, down six places from its 2025 rank of 151.

Case: A draconian law - the 2023 amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 - was struck down by the Bombay High Court as unconstitutional (Kunal Kamra v. Union of India (2024). This amendment established a Fact Checking Unit (FCU) operated by the government-run Press Information Bureau, whose work was to flag fake, false or misleading online content related to the government’s activities. Once flagged, the intermediaries (social media platforms) were obligated to take down the content or lose their “safe harbour” protections against liability for end-user-generated content.

The High Court said that such a law would have a “chilling effect” on free speech through censorship. Journalists, satirists, cartoonists, and other social media participants would lose their ability to share views critical of the government. Many would also lose their livelihood if their consumers were unable to read their posts. Intermediaries (social media and other internet-based platforms) would play safe by taking down content to avoid legal risks. The rules were vague, lacked procedural safeguards and were too broad and arbitrary. The Court thus found the amendment violated Articles 14, 19(1)(a) and 19(1)(g) and exceeded the authority granted by the IT Act, 2000.

The Supreme Court has stayed the operation of the 2023 amendments, and for now, the government’s FCU remains suspended.

Footnotes

1. State of U.P. v. Raj Narain (1975); Secretary, Ministry of Information & Broadcasting. Government of India v. Cricket Association of Bengal (1995); Union of India v. Association of Democratic Reforms ,(2002), etc. ↩