Freedom Of Speech & Expression And The Undefined Threshold Of Offensiveness In Indian Constitutional Law
- IJLLR Journal
- Jan 29
- 2 min read
Kedar Waingankar, LL.M. (Constitutional and Administrative Law), Christ University, Bengaluru, India.
ABSTRACT
This research aims to focus on how vague standards such as “decency” and “morality” have an arbitrary restriction on freedom of expression, hence the title, undefined threshold of “offensiveness” under Article 19 (2). The scholarly literature reveals in their study that courts have highlighted the democratic importance of Speech & expression. Courts often oscillate between restrictive colonial era tests like Hicklin and more liberal community standards. Recent cases like Shreya Singhal and Amish Devgan attempt to bring clarity in this matter through proportionality and context- content-intent-harm analysis. The studies collectively agree that the source of the chilling effect is these undefined terms and subjective judicial interpretation. Comparative Analysis of various jurisdictions like the U.S., South Africa, Canada, and the European Court of Human Rights shows that the proportionality and harm-based framework could provide more consistency. Still, India didn’t fully internalize them. No literature explored the complexity of free speech regulation in the Digital domain, as well as the absence of a universally accepted test to balance rights with restrictions. This research uses doctrinal analysis of constitutional provisions, Supreme Court rulings, and comparative jurisdiction, and critical analysis of secondary scholarship. The current findings show the judiciary deciding on majoritarian morality and political expediency rather than protecting expression due to a lack of clear standards. The study concludes by proposing a structured test that would give a clearer standard, along with harm-based assessment and proportionality test, so that freedom of expression is protected, and also dignity, equality, and public order would not be compromised, thereby reducing arbitrariness and safeguarding democracy.
Keywords: Freedom of Speech & Expression, Judicial Inconsistency, Arbitrary restriction, Chilling effect, Hate speech
