SC shaped, reshaped contours of freedom of speech since Independence: Ex CJI Gavai

The Supreme Court has steadily shaped and reshaped the contours of freedom of speech and expression in the last 75 years, former Chief Justice of India BR Gavai said here on Friday. “The evolution of free speech jurisprudence in India reflects a larger constitutional commitment to ensure that the State’s power to restrict expression does not overshadow the citizen’s right to think, to speak and to participate freely in the democratic set-up,” he asserted.

He was delivering the Justice KT Desai Memorial Lecture 2025 on ‘Freedom of Speech and Expression: Its Scope and Limitations Under the Constitution’. Citing several landmark judgments of the Supreme Court since Independence, the former CJI traced out the evolution of law over the years and the role played by the judiciary in protecting citizen’s rights.

“Over the last 75 years, the Supreme Court has steadily shaped and reshaped the contours of the freedom of speech and expression under Article 19 1(A), while simultaneously defining the permissible limit under Article 19 (2),” he said. “What emerges from this constitutional journey is a conscious and consistent judicial effort to preserve the breadth of free speech and constraint the scope of restrictions so that the right is not diluted through overreach, vagueness and excessive state control,” Gavai said.

Recognising that freedom of speech and expression protects diverse and highly personal modes of expression integral to dignity, autonomy and democratic participation, the court has expanded the understanding of expression to include personal and identity-based freedom, he pointed out. In this reference, he cited a judgement in which the apex court held that transgender persons have a constitutionally protected right to express their gender.  He highlighted that as the 21 century began, the “court also increasingly recognised that freedom of speech and expression is integral to the health of democracy, particularly in ensuring transparency and enabling citizens to make informed electoral choices”.

Gavai pointed out that, in the recent past, the SC has been increasingly called upon to navigate the complexities of digital communication, its unprecedented reach, its potential for misuse and its fundamental role in shaping public discourse. “Traditional free speech principles must be recalibrated to respond to the unique challenges posed by the online world, including misinformation, surveillance and the monopolistic powers of digital intermediaries,” the ex-CJI said.