India is already witnessing an erosion of free expression. Judicial moral policing and the potential facilitation of a wider censorship regime will only accelerate this decline.
It is rather rich of the Supreme Court to preach morality when, not too long ago, not a single Supreme Court judge publicly objected to their Chief Justice presiding over cases despite serious allegations of sexual harassment.
On February 17, the Supreme Court heard YouTuber Ranveer Allahbadia’s plea for interim protection in multiple obscenity cases over his remarks in a comedy show, India’s Got Latent. A two-judge bench, led by Justice Surya Kant and comprising Justice N Kotiswar Singh, stayed Allahbadia’s arrest on the condition that he cooperates with the police and appears before the investigating officers when summoned. The court also barred further FIRs based on the same show but did not decide on clubbing them.
A gag order
However, more troubling is the sweeping condition barring Allahbadia and his associates from airing “any show” on YouTube or other audio-visual platforms “until further orders.” This restriction, imposed without a shred of justification, curtails their freedom of speech and expression under Article 19(1)(a) and their fundamental right to practise any profession or occupation under Article 19(1)(g) of the Constitution.
While the state may impose reasonable restrictions on these fundamental rights, like in the public interest, it has a duty to justify their necessity, proportionality, and reasonableness. One would expect the highest court to explain why it deemed it necessary to bar someone from their profession and gag their future speech. Yet, the Supreme Court imposed this condition on Allahbadia and his associates arbitrarily – paternalistic, sweeping, and entirely unaccountable – emblematic of its mai-baap approach, wherein it sees itself as the ultimate arbiter of all things, unburdened by the need to justify its own excesses.
This sweeping condition is particularly striking given that Justice Kant, sitting with Justices DY Chandrachud and AS Bopanna, had ruled against such restrictions in fact-checker Mohammed Zubair’s bail case.
In 2022, the Supreme Court held that prohibiting Zubair from tweeting, which the state of Uttar Pradesh pressed for, would amount to an unconstitutional gag order:
“A blanket order directing the petitioner to not express his opinion – an opinion he is rightfully entitled to hold as an active, participating citizen – would be disproportionate to the purpose of imposing conditions on bail. The imposition of such a condition would amount to a gag order against the petitioner. Gag orders have a chilling effect on the freedom of speech… Passing an order restricting him from posting on social media would constitute an unjustified violation of the freedom of speech and expression, and the freedom to practise his profession,” the three-judge bench had held.
‘Vibe jurisprudence’
Now, leading a smaller two-judge bench, Justice Kant has taken a completely contradictory position. If a judge radically departs from a legal reasoning they previously endorsed, judicial discipline demands an explanation in the order. The lack of one here reinforces concerns about what I call “vibe jurisprudence,” where judicial outcomes are contingent on individual judges rather than consistent legal principles. The only rationale behind this restriction is the biases of the bench, reflected in the remarks made before the order was dictated.
Clearly infuriated, Justice Kant described Allahbadia as having “dirt in his mind” and accused him and others on the panel of “perversion,” even questioning why courts should favour him.
“The words you have chosen – parents will feel ashamed. Daughters and sisters will feel ashamed. Your younger brothers will feel ashamed. The entire society feels ashamed,” he remarked. The Supreme Court has repeatedly instructed lower courts to avoid prejudicing investigations and trials with extraneous remarks at the interim stage. Yet here, Courtroom Number 3 of the Supreme Court has itself violated that principle.
Whimsical punishment
When Allahbadia’s counsel, Abhinav Chandrachud, cited a 2024 Supreme Court ruling distinguishing between profanity and obscenity – arguing that the obscenity charges were unfounded – the apex court quickly shifted the discussion to “societal values” and proceeded to establish its moral superiority over the petitioner.
Justice Kant queried about the “parameters” of “self-evolved societal values” within which a “responsible citizen” should behave. The decision to bar Allahbadia and his associates from airing any show was grounded in this entirely subjective standard of morality. This is judicial punishment rooted not in law but in personal sentiment. The court ignored the fact that what one judge finds outrageous may not be equally offensive to another. Crass as Allahbadia’s joke may be, the court had no business exceeding constitutional boundaries to deliver whimsical punishment before an investigation was even completed. Even if we dismiss this as an isolated incident, cases such as this grab many eyeballs and the Court’s conduct, if irrational, has a chilling effect. More importantly, orders such as this also set a very dangerous precedent – emboldening moral policing in an increasingly autocratic nation where freedoms are eroding.
One cannot completely dismiss concerns that there may be more at play. The Supreme Court’s moralising and overreach aside, more concerning is Justice Surya Kant’s explicit desire to “do something” about OTT regulation. The bench has summoned the Attorney-General for India and the Solicitor General of India for the next hearing to discuss this issue. This is deeply troubling.
A digital dice is cast
The Supreme Court lacks the capacity, technical expertise, and institutional bandwidth to craft regulations for digital content. The participatory democracy that the Supreme Court itself has extolled requires consultation with all stakeholders, particularly on sensitive issues with wide-ranging implications for free speech. The judiciary is hardly the appropriate forum for such a discussion on a law. Over five crore cases are pending before Indian courts. The country cannot afford its future Chief Justice embarking on a whimsical crusade to regulate OTT platforms while urgent judicial concerns remain unaddressed. The court is surely aware of its limitations.
Then what is this about?
The court’s intervention could revive the shelved Broadcasting Services (Regulation) Bill, 2024. This proposed law, criticised for its sweeping scope, sought to regulate not just OTT platforms and digital news but also individual content creators and social media users. Among its many problematic provisions was mandatory prior registration with the government—a measure widely condemned for enabling state overreach. If the Court’s intervention nudges the government towards reviving the Bill, it will have effectively provided legal cover for broader censorship.
India is already witnessing an erosion of free expression. Judicial moral policing and the potential facilitation of a wider censorship regime will only accelerate this decline. It is not the Supreme Court’s job to police morality or craft content regulations. The court must back off and resist the temptation to play guardian of societal values. Instead, it should focus on improving justice delivery and hearing challenges to laws that are inconsistent with constitutional principles – such as the Delhi Services Act, 2023.
Saurav Das is an investigative journalist writing on law, the judiciary, and policy.