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White Black Legal – International Law Journal · ISSN 2581-8503
From Streets to Screens: correlating digital activism, freedom of expression, state regulation and democratic participation in India. A doctrinal and case study analysis
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Abstract
FROM STREETS TO SCREENS: CORRELATING DIGITAL
ACTIVISM, FREEDOM OF EXPRESSION, STATE REGULATION AND DEMOCRATIC PARTICIPATION
IN INDIA. A DOCTRINAL AND CASE STUDY ANALYSIS
AUTHORED
BY - NISHTHA BANERJEE
2nd
Year Student
University
Institute of Legal Studies, Chandigarh University
CO-AUTHOR
- MS. RITU MALIK
Assistant
Professor
University
Institute of Legal Studies, Chandigarh University
1. ABSTRACT
This paper deals examines
freedom of expression, mainly in relation to the media services in the country.
It deals with the era of print media and the evolution of digital media, right
from the beginning of the internet era and the era of television. The paper
deals with different clauses of our constitution and also the laws and their
amendments made to them right from the time of independence. It also covers
newer laws pending before the apex court.
The methodology used in
this script is based on the real situations of freedom of expression in
different eras, with the analytical hypothesis of each of them. The key
findings in the paper are the main issues in which our democracy needs to be
more robust and adaptive to the thinking and expression of the new generation.
The paper deals with the point that is the need of the hour to have a natural
and rational debate and arrive at a consensus conclusion on the issues which
the country is facing in different areas. The debate can be held in public/
media/ print.
The conclusion in the
paper clearly shows that study made in the paper is justifiable and also has a
road map of going forward as to how to strike a balance between the freedom of
expression and the political system of the country. It also clearly defines
that the rulings of the courts should be respected and followed by every
citizen to have a good debate and analysis of major burning issues across the
country and the world, which affect the day- to- day life of the common man.
2. INTRODUCTION
It
is to be noted that political participation and democratic acceptance in India
were largely written on it’s streets by way of marches, court room petitions,
news papers, radio broadcasts and through television via the national channel
Doordarshan. As we all know, the Constitution of India, through it’s article
19(1)(a)
has
guaranteed the freedom of expression and speech to every citizen from the early
years of the Republic. As freedom has gone through many transformation rapidly,
more than any constitutional value has experienced before. Previously the citizens grievances where
communicated via public meetings, pamphlets, signature campaigns has now
changed and it travels through a You tube video, a google document, a social
media forward, a hashtag.
The
shift in this communication is reproduced in the title of this paper: A
movement from Streets to Screens
Digital
advocacy-
It is to be noted that the use of social media platforms and digital
networks to mobilise and sustain collective action has now become part and
parcel of the country’s democracy. As we had seen the Anna hazare corruption
movement in the year 2011 had spread fast and amplified itself through sms
chains and social media mobilizing the power of network communication. The same
happened during the Nirbhaya Movement, which showed all of us how a single act
of violence against women could become a national conversation. Within hours,
this was carried out by the social media platforms Twitter and Facebook long
before it was discussed on the floor of Parliament. In 2019 and 2020, the
Citizenship Amendment Act and the NRC (National Register of Citizens), which
were anchored physically at Shaheen Bagh, gained sustainability digitally
across the country. The same happened in the farmers' protest and also the
MeToo campaign in India. To see it in a way, it is hereby absolutely confirmed
that digital footprints are no longer a stopgap for public outcry and thus have
become the most reliable and fastest way of communication. This digital release
is not an outcry that happened just like that; each of the digital movements
had to meet at some point in time with a state government response in the form
of its regulations. These responses ranged from criminal prosecution of the
persons using social media to the blocking of their accounts. The prolonged
suspension of mobile and internet services in the entire district also came into
force. In particular, it is also to be noted that the Anti-Terror Act and the
sedition act were also implemented against the activists, particularly those
who had shared the document online. Delegated legislation was made under the IT
Act, 2000, under the umbrella of information technology, which resulted in 2021
and 2023 amendments. These have emerged as principal instruments through
which the country now seeks to regulate and restrain digital speech. The
Judiciary has repeatedly been asked to be the referee in these contests.
Examples include the Supreme Court decisions in the Shreya Singhal Case, which
struck down the notoriously vague section 66(a) of the IT Act as
unconstitutional. Whereas, in Anuradha Bhasin’s Case, for the first time, the
freedom to access the internet became an aspect of the fundamental freedoms
guaranteed under Article 19(1)(a) and Article 19(1)(g) of our Constitution.
This article proceeds from the theory that digital activism, freedom of
expression, state regulation and democratic participation in India are not four
independent phenomena that happened to co-exist but are four variables that are
co-related dynamically with each other. As digital activism is prompting state
regulation to tighten itself, the judicial expansion of free expression is
opening a new space for digital mobilisation and healthy democratic
participation. This can be easily measured by the vibrant public debates
between elections and voter turnouts. This rise and fall is the net effect of
these pressures. This paper will discuss our constitutional democracy in the
digital age, whether it will be correlated historically and will also trace.
Notes
& References
a.
Shreya
Singhal v. Union of India, (2015) 5 SCC 1; Kunal Kamra v. Union of India, 26
September 2024 striked down the 3(1)(b)(v) amendment rule of the IT rules 2021;
b. Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.
3. History
3.1
The news paper era of free
expression
Long before even the internet came into the country, the Supreme Court of
India started building the bridge of digital speech. The Romesh Thappar Case
with the State of Madras came to a conclusion within months of our Constitution
coming into effect, and the Supreme Court struck down a ban on the circulation
of a political newspaper, which gave us freedom of speech. To see it in another
way, this laid a foundation for democratic organisations without any free and
fair political outcry. Proper government functioning was possible. In a span of
10 years, we also saw the Sakal paper case in which the court struck down the
print control regulations that had an indirect control over the size and
circulation of the papers, which the state did not achieve indirectly. It is to
be noted that what was being forbidden was achieved, and the commercial
regulation was not capable of being used as a method for controlling public
expression. We also see that in the Bennett Coleman & Company case, the
Supreme Court went a step further, making the rights of the publisher and the
rights of the reader two sides of the same coin, whereas the coin was the
Constitution of India. This gave us a warning against the regulatory schemes
that had pinned the press, to name a few, under the neutral economic policy.
These examples of early cases establish two hypotheses that would prove the
foundation for the digital era: first, that freedom of expression is linked to
democratic self-governance, and second, that the state cannot use technical or
economic regulation to achieve a restriction on speech that could not be
achieved directly.
3.2
The Surveillance era
I want to state that, in my view, the next most important development came
from the law of privacy and surveillance and not from the law of speech. It can
be seen clearly in the case of People’s Union for Civil Liberties; in this, the
Supreme Court thoroughly and meticulously checked and re-examined the idea of
telephone tapping under the Telegraph Act of 1885. This act gave us the right
to hold a telephonic conversation in our home in private without any
unauthorised intervention. This is a clear aspect of the right to personal
liberty and the right to life under Article 21. The Supreme Court framed the
procedures and safeguarded the interests before any telephone interaction could
be authorised. This judgment of the court has a significant value in the present
study because it anticipated, years in advance, the central tension of the
digital era, that is, the state’s interest in monitoring communication for
security purposes versus an interest of citizens in communicating freely and
privately. The tension would resurface in a far more technologically complex
form in the controversies over the traceability of encrypted messaging and the
alleged use of spyware against journalists and activists that arose after 2019.
3.3
The Emergence of the IT Act,
2000
After the deadly Mumbai terror attacks, the digital revolution and the IT
Act 2000 were primarily made to ease and facilitate e-commerce and electronic
governance. This was an afterthought at that time. This changed with the 2008
amendment, which was part of Section 66A, under which criminal proceedings
could have been initiated for sending grossly offensive information and
menacing any character which had clear indications to cause inconvenience in
society or anger. Section 69A was further strengthened by empowering the
government of India to block public access to online content on specific
grounds. The uncertain clause of 66A’s language proved problematic in the
following years, and it was misused. The citizens of the country were put
behind bars for Facebook posts criticising political leaders, creating cartoons
and also making funny comments about public figures. This can be easily
justified by the arrest of two women from Maharashtra for writing on Facebook
as they questioned the city-wide shutdown for a political leader’s funeral
procession. This was one of the major catalysts for the constitutional change
that followed.
3.4
Mobilization of Digital
Platform: 2011-2014
During the above-mentioned period, digital activism came into its political
force. The corruption movement by Anna Hazare in 2011 which was primarily a
hunger strike by him was amplified through mobile network messaging systems,
blogs, twitter accounts which became the major tools for demonstration, which
resulted in a nation wide campaign and a localized hunger strike due to the
digital footprint of it’s own in the nation. Pressured our then government of
India into the legislative action of the Lokpal Bill. Country-wide protests
also erupted after the Delhi gang rape case in 2012, December similarly showing
us how a detailed network could be mobilised spontaneously, leaderless and
geographically dispersed, far more rapidly than traditional structural ways.
These episodes established a process- rapid digital mobilisation and global
visibility- sustained through hashtags, which eventually led to physical
assembly that would recur in almost all the protest movements that happened in
India over the following decades.
3.5 Fact check of unit
litigation and the IT rules-2021
The government of India notified the rules of Information Technology under
Section 87 of the IT Act in February 2021, imposing due diligence obligations
on social media intermediaries which included the appointment of officers,
which also expedited the content takedown timelines and controversially a
traceable requirement which compelled the significance social media platforms
offering messaging services to identify originator of the specific messages on
Judicial or Government request. The digital rights organisation and the
messaging platforms disagreed with this requirement, as it was incompatible
with end-to-end encryption, with the association of privacy protected under the
Justice Puttaswamy order. The rules were amended in April 2023 to empower the central
government to notify and fact-check, with authority to flag off
government-related content on social media as vague, false or misleading, which
added an obligation on the intermediaries to remove such content from social
media to retain safe harbour protection under section 79. The amendment was
challenged by the stand-up comedian Kunal Kamra, the Editors Guild of India and
some petitioners before the High Court of Bombay. After the split verdict
between the two-judge bench, a tie-breaking bench held in September 2024 stated
that the amended rule was unconstitutional, reasoning that terms like vague,
false or misleading were undefined and over-broad, and that it could produce a
chilling effect on justified speech, that citizens did not possess the right to
truth, and that it justified the government acting as the sole arbitrator of
what misinformation it constituted about itself. The Central Government’s
appeal was heard by the Supreme Court in early 2026 for final adjudication,
with the court making it clear that it would not stay the Bombay High Court’s
order, leaving the constitutional status of fact-checking of online speech as
one of the most significant open questions.
Notes & References
a. Bennett
Coleman & Co. v. Union of India, (1973) 2 SCR 757
b. Romesh Thappar v. State of Madras, AIR 1950 SC
124.
c. Sakal Papers (P) Ltd. v. Union of India, AIR 1962
SC 305.
d. People's Union for Civil Liberties (PUCL) v.
Union of India, AIR 1997 SC 568.
4. Objectives of the
Study
It is to be noted that this study is based on a set of linked objectives
that together help to map a relationship between free expression, digital
activism, democratic participation and the state regulation that is practised
in the country. Each objective discussed is based on the facts and foundations
set out in Part II and is designed to be tested against the questions and
specific research and hypothesis mentioned in the parts that follow.
1.
The primary objective is to
trace, in a connective narrative, how Indian constitutional doctrine on freedom
of expression, which was developed originally for print and radio media, has
been elaborated, extended, reinterpreted and in some cases strained by the
origin of digital communication, from Romesh Thappar via Shreya Singhal through
Anuradha Bhasin.
2.
The second objective of this
paper is to identify and streamline the principle legal instruments via which
the Indian state controls and regulates it’s digital activism and online
expression including the IT Act, 2000, The intermediary Guidelines and digital
media ethics code rule, 2021 (which was amended in 2023), also the temporary
suspension of telecom services rules, 2017, and the adjacent security
legislation of unlawful activities (Prevention act, 1967, which so far has been
evoked against digital activists.
3.
My third objective will be to
examine the relation between digital mobilisation and State regulatory
response. We shall carry this out with the help of the case studies that have
been identified in the historical part of this paper. It is to be understood
that the periods of high digital activism are highly influenced by an emphasis
on state regulation or united measures, and if so, then from what conclusion
has that been taken- whether it is legislative, executive or prosecutorial.
4.
In the paper, the fourth
objective is to assess the Judiciary’s role as an inter-mediating institution.
The extent to which the higher judiciary has functioned as a moderating
or balancing institution in the expansion of digital activism and in balancing
state regulations; both the doctrinal tools examined by the courts and the
practical efficacy of Judicial interventions (doctrines such as proportionality
and the vagueness of the doctrine).
5.
The impact of this correlation
on democratic participation and its evaluation is the fifth objective of the
paper. In this objective, the evaluation of the interaction between digital
activism and state regulation is examined in terms of the quality and depth of
democratic participation in the country, which goes beyond formal electoral
participation. To consider the vibrancy of public deliberation. The emergence
of willingness of citizens to express dissent and its chilling side effects, if
any, which are produced by regulatory uncertainty.
6.
In the sixth objective, we
will identify the gaps in the existing legal and regulatory framework. In this
objective, we will identify gaps, ambiguities and inconsistencies in the
current legal framework of India governing digital speech and activism, with
particular attention to the unanswered questions which are currently pending
before the Supreme Court in the fact check unit litigation and the wider debate
over a proposed Digital India Act to replace the IT Act, 2000.
7.
In the final and seventh
objective, we propose a normative framework for reform. This objective will be
proposed on the basis of the preceding analysis, a normative framework that
will better reconcile the legitimate interest of the state in public order,
national security and the prevention of misinformation. This will also
guarantee the constitutional right to freedom of expression and the
requirements that are practical for a digitally mediated democracy.
5. Research Questions
SQ1.
In what way has the judicial system in India enhanced and developed the
constitutional protection of freedom of expression from traditional print media
to the era of online India and digital speeches?
SQ2.
Which constitutional principle governed the restrictions provided on the online
speech in India?
SQ3.
In what way has the supreme court addressed the implications of the
constitution on the internet shutdowns and the restrictions on the internet
based expressions?
SQ4.
Does the constitutional right to privacy applicable to state surveillance and
digital communications?
SQ5.
In which way have the Indian courts kept the balance to the right of peaceful
protest with respect to competing public interest in the cases which are
involving digitally coordinated or publicly organized protests?
SQ6.
The state regulation when uses the vague or overboard standards which are the
constitutional concerns which arise when the state behaves like this
NOTE:
1. This
study does not take into consideration or ask whether the digital activism
statistically causes greater state regulation
2. Whether
the restrictions on internet statistically reduce mobilization
3. The
citizens of India generally engage themselves in self censorship or not
4. The
above questions would require empirical evidence and therefore these are not
the scope of the study.
6. Research
Methodology
6.1
Research design
The
research adopts a doctrinal, legal method supported by qualitative case law
analysis. The study mainly examines the constitutional provisions, the
legislation, the delegated legislation and the judicial decisions made with
respect to freedom of expression, digital communication, private privacy,
internet restrictions and the protests.
The
paper does not involve or undertake statistical research, any kind of surveys,
interviews or quantitative measurements of digital activism.
The
main purpose of this paper/study is to identify and primarily analyse the
constitutional principles which have already been developed via judicial
decisions.
6.2
Primary Sources
The
principal primary sources include the following:
•
Constitution of India;
•
Article 14;
•
Article 19(1)(a);
•
Article 19(1)(g);
•
Article 19(2);
•
Article 21;
•
Information Technology Act, 2000;
•
Information Technology (Intermediary
Guidelines and Digital Media Ethics Code) Rules, 2021;
•
relevant amendments to the IT Rules;
•
Temporary Suspension of Telecom Services
Rules, 2017;
•
Indian Telegraph Act, 1885, where
relevant;
•
judicial decisions of the Supreme Court
and High Courts.
6.3
Selection of cases
Cases have been selected because they provide
judicial discussion of one or more of the following:
•
freedom of
expression;
•
freedom of
press;
•
freedom of
online speech;
•
intermediary
liability;
•
freedom of
privacy and surveillance;
•
internet
restrictions;
•
freedom of
protest;
•
freedom of
digital communication;
•
State
regulation of online information.
The principal cases analysed are:
1. Romesh Thappar v. State of Madras
2. Sakal Papers (P) Ltd. v. Union of India
3. Bennett Coleman & Co. v. Union of India
4. People's Union for Civil Liberties v. Union of
India
5. Shreya Singhal v. Union of India
6. Justice K.S. Puttaswamy (Retd.) v. Union of India
7. Anuradha Bhasin v. Union of India
8. Amit Sahni v. Commissioner of Police
9. State (NCT of Delhi) v. Disha A. Ravi
10. Kunal Kamra v. Union of India
6.4
Analytical framework
Each
and every major judicial decision is examined in the study through the
following framework:
a) Facts
and context
b) Legal
issues
c) Applicable
law
d) Judicial
reasoning
e) Constitutional
principle
f) Relevance
to the digital expression and democratic participation
This
approach of the paper ensures that it does not just describe the cases but it
identifies what each of the judicial decisions made against the cases
contributes to the understanding of the constitution towards digital
expression.
6.5
Scope and limitations
The
paper is purely doctrinal and qualitative. It, in no way attempts to establish
a statistical relationship between the intensity of digital activism and the
severity or the frequency of the state regulation.
This
study does not claim to mention the number of citizens affected by online
restrictions and the extent of self censorship
The
conclusions of this study are limited to what can be reasonably identified from
the constitutional provisions, legislation and the judicial decisions examined.
7. Constitutional and
Legal Framework
7.1
Article 19(1)(a): Freedom of
Speech and Expression\
This
article guarantees Indian citizens the fundamental right to the freedom of
speech and freedom of expression.
The
apex court has established that the freedom of expression is essential to
democratic involvement. Although early cases mainly focused on newspapers and
old media.
Shreya
Singhal constitutes a notable application of Article 19(1)(a) to online speech.
7.2
Article 19(2): Reasonable
Restrictions
The
freedom given under article 19(1)(a) is not qualified for granting justified
regulation on specific grounds.
Consequently,
State regulation of speech must be evaluated within the constitutional limits
set forth by Article 19(2).
The
importance of this article can be seen in the Shreya Singhal case where the
apex court evaluated whether the restriction created by section 66A is aligned
with the constitutionally allowable limitations.
7.3
Article 14
This
article guarantees equality before law and equal protection of the laws.
The
provision becomes applicable where digital regulations are questioned as
arbitrary, indefinite or biased.
Article
14 together with Article 19 was involved in the constitutional challenge to the
2023 fact check unit amendment before the Bombay High Court.
7.4
Article 21 and Privacy
Article
21 protects life and personal liberty.
In
the Justice K.S Puttaswamy case, The nine-judge bench validated privacy as a
Fundamental right under the Constitution.
The
principle is applicable to current telecommunication because they incorporate
personal information, digital identity and private communication.
The
principle of this is relevant to digital communication as because the modern
communication system involves information and digital identity as well as
private communication.
8. Evolution of
Freedom of Expression: Key Judicial Decisions
8.1
Shreya Singhal Case
(Constitutionalisation of online speech)
Section 66A came into question in the Constitution in the year 2015 when
the Supreme Court in this case unanimously struck the provision down as
unconstitutional. The court observed that the terms used in the provision were
so irrelevant and undefined that they left it open to the authorities to
criminalise a very large amount of protected and innocent speech, producing
what the court described as a chilling effect on legitimate online expression.
The provision in the law was to be found absolutely immaterial to any
restrictions permitted under Article 19(2), and it could not be saved as a
decision-maker restriction on the freedom of speech. The Supreme Court also
read down the liability provisions in Section 79 of the Act, making it clear
that the individuals who were in between could be required to take down the
posted content only when the court orders it or by a legal notification by an
appropriate government agency. This cannot be taken down by any private
complaint alone. This remains, to this day, the single most cited Indian
judgment on free digital expression. It has frequently been invoked in
subsequent cases over restrictions on online speech. This includes the
arbitration over the IT Rules of 2021.
8.2 Anuradha Bhasin, the internet shutdowns and Kashmir
In August 2019, the abrogation of the special status of Jammu and Kashmir
under Article 370 was accompanied by the most extensive and longest internet
shutdowns by any democracy, which affected the region’s population for many
months. This internet shutdown was challenged before the Supreme Court by the
executive editor of Kashmir Times, Anuradha Bhasin, who argued that the
inaccessibility of the internet had brought newspaper journalism in the Jammu
and Kashmir region to a standstill and the restrictions were imposed without
any proper procedural safeguards that were required under the temporary
suspension under the Telecom Services Rules, 2017 (Public emergency or public
safety). The Supreme Court, in its judgment in January 2020, held that the
freedom of speech and expression via the medium of the internet is
constitutionally protected under the rights of Article 19(1)(a), and also the
freedom to conduct trade and business using the internet is also protected
under Article 19(1)(g). The court observed that any order suspending internet
services must be temporary; it has to be published and must also record
reasons. It must be subjected to pre-periodic review, and that Section 144 of
the Code of Criminal Procedure will not be used as a tool to suppress the
exercise of Fundamental Rights. The court, however, declined to strike down the
specific shutdown orders. The Anuradha Bhasin case has been repeatedly cited by
the Supreme Court itself in the case of Foundation of Media Professionals
versus U.T. of Jammu and Kashmir, which compelled governments to give
justifications for the prolonged internet restrictions. This case is a landmark
in history. I had raised this in my paper because the moment in which Indian
Constitutional Law formally recognised that a state controls it is, in
substance, a form of speech regulation.
8.3 Justice K.S Puttaswamy: Fundamental Rights of Privacy
Justice K.S. Puttaswamy headed a 9-judge bench of the Supreme Court in
August 2017, which unanimously held that the fundamental right to privacy is
protected under Article 21 as an integral part of the freedom rights guaranteed
under Part 3 of the Constitution, overruling the earlier decisions that were
held. Justice Puttaswamy arose out of the challenge to the biometric
identification of the Aadhaar scheme, for its implications extended directly to
digital activism. This supplies the constitutional foundations for later
objections to state surveillance by activists and journalists, most visible in
the controversy over the use of spyware Pegasus, which was subjected to the
Supreme Court technical committee, which followed a batch of petitions,
including the petition of journalist Mohan Lal Sharma. Justice Puttaswamy also
underlines the recurring debate over the traceability of encrypted messaging
platforms by the IT Rules of 2021. Since the traceability of anonymous digital
speech indicates precisely the association and expressiveness of the privacy
interest that Mr Puttaswamy protects.
8.4 The toolkit case, the farmers movement, the CAA-NRC protests
The CAA-2019 and the NRC resulted in and crystallised the protests around
the sitting of Shaheen Bagh in Delhi, where they were coordinated, facilitated
and managed for months together through very smoothly coordinated digital
communication. Though the physical protest had to undergo administrative and
legal challenges. The Supreme Court took suo motu cognisance in the dispute of
Amit Sahni V. Police Commissioner to address the balance between the right to
protest and the right of the citizens to use the public roads. It was made
clear that the right to protest, which is a Fundamental right, cannot be
extended to infinite or indefinite occupation of a public thoroughfare.
The farmers' protest against the three farm laws against the government of
India in 2020 showed how planned, and even more technological, use of digital
tools was used, which generated substantial global attention through
coordinated social media campaigns. The same period also produced one of the
most controversial applications of India’s anti-terror and sedition law to
digital activism, which led to the arrest of the young climate activist, Disha
Ravi, in February 2021, in connection with a toolkit document that was shared
and formulated the plans and strategies for supporting the farmers' protest
internationally. Although the related charges ultimately did not result in any
conviction. The case became one of the most widely discussed illustrations. The
risk that loosely worded security legislation can be deployed against
individuals whose principal intention and offence was to create digital
coordination of lawful protests.
Notes
& References
a. Anuradha Bhasin v. Union of India, (2020) 3 SCC
637.
b. Justice K.S. Puttaswamy (Retd.) v. Union of
India, (2017) 10 SCC 1.
c. Shreya Singhal v. Union of India, (2015) 5 SCC 1.
d. Amit
Sahni v. Commissioner of Police, (2020) 10 SCC 439.
State
(NCT of Delhi) v. Disha A. Ravi, Bail Order, Patiala House Courts, New Delhi,
23 February 2021.
9. Digital Activism
and Selected Case Studies
9.1
Digital activism as a medium of
political participation
Historically, the development discussed earlier clearly shows that
political communication has migrated from pamphlets, newspapers and public
meetings to websites and social media platforms. However, for the purpose of
this doctrinal study, digital activism is not treated as an independent right
created by a particular judgment; instead, the protection provided for the same
is examined through existing rights such as freedom of speech, freedom of
expression, freedom of peaceful protest, and privacy.
9.2 Shaheen Bagh and Amit Sahni
The protests of Shaheen Bagh are a classic example of a physical protest
that was largely supported by digital communication. In this case, the
constitutional question concerning the protest by the public was taken up by
the Supreme Court in the case of Amit Sahni V. Commissioner of police, (2020)
10 SCC 439.
The apex court recognised the right to peaceful protests but also gave much
greater emphasis to the point that public roads and spaces cannot be occupied
indefinitely in a manner that causes continuing obstruction. Therefore, the
case demonstrates that the fundamental right to protest and the rights of the
people of society must be balanced.
9.3 Farmers Protests and The Disha Ravi Proceedings
Digital platforms for communication were used for farmers’ protests. The
proceedings in the court involved Disha Ravi and the allegations relating to a
toolkit association with the farmers’ protests.
The bail proceedings are relevant to this study as they demonstrate
strongly the legal significance of identifying and distinguishing between
expression, advocacy, communication and conduct alleged to have criminal
consequences.
This case should not, however, be treated as establishing a very general
constitutional rule that all kinds of digital activism are protected or that
all digital coordination is lawful.
The relevance of the same is confined to the judicial reasoning and factual
circumstances of the particular proceedings.
10. State Regulation of
Digital Expression
The
state regulation of digital expression operates through different legal
guidelines and mechanisms. The information technology act, 2000 provides the
principle framework (statutory).
The
section 69A provides a mechanism to block access to information in specific
circumstances.
The
IT Rules in the case establishes the obligations concerning intermediaries and
digital platforms. The internet restrictions may also in a way affect the
digital expression indirectly by restricting the access to the communication
infrastructure itself.
The
constitutional validity of these kinds of restrictions therefore is fully
dependent on the applicable constitutional provision and the judicial standards
developed by the courts.
The
important point established via the case examined in this paper is that the
digital nature of communication does not place the regulation of the state
outside the constitutional scrutiny.
11. Judicial Balancing
of Rights and State Interests
11.1
Anuradha Bhasin
The
case of Anuradha Bhasin demonstrates that the restrictions affecting the
internet access must comply with constitutional and legal requirement.
The
Supreme Court requires publication of orders, stated reasons, temporary
restrictions and review.
Therefore,
this case clearly established judicial safeguards against indefinite internet
shutdown.
11.2
Justice Puttaswamy
Justice
Puttaswamy established privacy as a fundamental constitutional right.
The
bench provides the constitutional basis for examining state actions which
involve personal information and communications.
Therefore,
the digital regulation involving surveillance or personal information has to be
considered alongside the constitutional protection of privacy.
11.3
Shreya Singhal
The
case of shreya singhal demonstrates the importance of clear legal standards.
The
law regulating digital expression cannot use vague terminology in a broad way
that individuals cannot reasonably determine what kind of expression is
prohibited.
The
reasoning of court regarding vagueness is particularly relevant to subsequent
regulation of online speech.
11.4
Kunal Kmaraa
In
the majority decision of Bombay high court in the year 2024 concerning the 2023
amendment to rule 3(1)(b)(v) provides a contemporary application of these
principles.
The
majority concluded that amended rule was unconstitutional and the ultra vires
the information technology act.
The
3rd judge opinion mainly address the vagueness and over-breath of
the expression used in the provision.
Therefore,
this case demonstrates the importance of constitutional standards developed in
Shreya Singhal case. At the same time, because the government’s appeal remains
pending before the supreme court. This study does not treat the Bombay high
court decision as final in determination of the issue.
Notes
& References
1. Kunal Kamra v. Union of India
2. Shreya Singhal V. Union of India, (2015) 5 SCC 1
3. Justice K.S Puttaswamy (Retd.) v. Union of India,
(2017) 10 SCC 1
4. Anuradha Bhasin v. Union of India, (2020) 3 SCC
637
12. Doctrinal Analysis
This paper uses a doctrinal approach that is based on the Constitution,
relevant legislation and the judicial decisions made by the courts of India.
The analysis examines how Indian courts have interpreted the freedom of
expression, modes of digital communication, the application of internet
restrictions, internet privacy and state regulations. This study in no way uses
surveys, interviews or statistical data.
12.1
Freedom of expression and
digital speech
The decision of the Supreme Court shows a gradual development towards the
protection of the freedom of expression. In the Romesh Thapar V. State of
Madras case, the court in particular has recognised the great importance of the
circulation of political expression. In the case of Sakal Paper v. Union of
India and Bennett Coleman v. Union of India, the court has examined the state
measures which are affecting the freedom of the press and has held that
regulatory measures cannot be used in a manner that restricts the freedom of
expression unjustifiably.
This principle has been applied directly to digital communication in the
Shreya Singhal case, in which the apex court struck down section 66A of the IT
Act because of its vagueness and over-broad terms. This could restrict
constitutionally protected speech. This case therefore establishes that online
expression is also protected under Article 19(1)(a), subject to the
restrictions permitted by Article 19(2).
12.2
Internet restrictions and
privacy
In the case of Anuradha Bhasin v. Union of India, the Supreme Court of
India recognised that freedom of speech and expression through the internet is
covered and protected under Article 19(1)(a). The court also gave emphasis on
the restrictions on internet access, which must satisfy constitutional
requirements and, proportionally, should remain subject to judicial review.
Privacy is also relevant to digital communication in the PUCL v. Union of
India case; the court recognised the privacy concerns involved in telephone
interception and required procedural safeguards. In the Justice K.S. Puttaswamy
case, the Supreme Court recognised that privacy is a fundamental right under
the Constitution. Therefore, these decisions establish that state action
involving digital communication and surveillance in all cases must respect the
constitutional privacy protections.
12.3 Overall Doctrinal
Position
The cases which have been examined in this paper demonstrate that the
freedom of expression remains constitutionally protected when it is exercised
through digital platforms.
At the same time, the state may impose the relevant restrictions that
satisfy the constitutional requirements. Therefore, the case law provides a
legal basis for examining the balance between digital activism, freedom of
expression, state regulation and democratic participation without requiring any
survey or statistical analysis.
Notes
& References
1. Shreya
Singhal V. Union of India, (2015) 5 SCC 1
2. Justice
K.S Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1
3. Anuradha
Bhasin v. Union of India, (2020) 3 SCC 637
4. Romesh
Thapar v. State of Madras, AIR 1950 SC 124
5. Sakal
papers (P) Ltd. v. Union of India, AIR 1962 SC 305
13. Recommendations
13.1
Clear Legal Standards
The
regulations which affect digital speech must be absolutely clear and precise in
language so that the citizens and the intermediaries can understand their legal
obligations.
This
particular recommendation follows from the concerning the vagueness which were
examined in Shreya singhal and Kunal Kamra cases.
13.2
Constitutional scrutiny of
digital restrictions
The restrictions which affect the online
expression should remain subjected to article 19(1)(a) and article 19(2).
The fact that this expression occurs through a
digital platform should not remove constitutional scrutiny.
13.3
Procedural safeguards
Restrictions such as internet shutdowns should
follow the procedural safeguards which are recognized in Anuradha Bhasin,
including publication, reasons, temporariness and review.
13.4
Protection of privacy
Digital regulatory mechanisms involving personal
the information, identification or surveillance should respect the
constitutional protection of privacy as recognized by Justice Puttaswamy.
13.5
Judicial Oversight
The digital regulations affecting substantially
the fundamental rights, the effective judicial review should remain available.
13.6
Distinction between protected
expression and unlawful conduct
The Legal regulation should distinguished between
political discussion, advocacy, criticism and other protected expression on the
one hand, and should conduct that independently satisfies the requirements of a
criminal offence on the other hand.
The distinction between discussion, advocacy and
incitement in the Shreya Singhal case is particularly relevant here.
14. Limitations
The
paper has certain limitations-
1. This
is a doctrinal and qualitative study and does not conduct any statistical
analysis of digital activism.
2. The
study does not attempt to establish a numerical or casual relationship between
the amount of digital activism and the state regulation frequency.
3. The
study in no way uses surveys or interviews to determine the amount of self
censorship among citizens.
4. The
protests movement which are historical in nature are used primarily as a contextual illustrations where they are not
directly supported by judicial determinations.
5. the study gives greater and important emphasis to
Supreme Court and High Court decisions and therefore does not provide an
exhaustive analysis of every decision of subordinate courts.
6. the constitutional positioning which concerns the
Fact Check Unit must be updated in accordance to the final decision of the
Supreme Court because the government’s challenge to the Bombay High Court
judgment remains pending.
15. Conclusion
The development of freedom of expression in India demonstrates that the
constitutional principles must operate across changing forms of communication.
The change from the newspaper era and traditional media to the arrival of the
internet and social media platforms has fully changed the manner in which
citizens of India communicate, organise, and participate in public affairs. But
it has to be noted that it has not removed the constitutional framework
governing freedom of expression.
This paper examines the judicial decisions that demonstrate this
constitutional continuity. The Romesh Thapar, the Sakal Papers, and the Bennett
Coleman cases establish important principles with respect to press freedom and
the dissemination of information. The Shreya Singhal case extends
constitutional scrutiny directly with respect to the field of online
expression. The Puttaswamy verdict expresses privacy as a fundamental right,
which is absolutely relevant to the digital environment. The Andhra Pradesh
case demonstrates that restrictions on internet access can affect
constitutionally protected freedoms and therefore must comply with legal and
procedural safeguards. In the Amit Sahni case, it is clearly demonstrated that
a balancing act is needed between the right to protest and the rights of
others. The proceedings concerning Disha Ravi and the Fact Check Unit further
clearly demonstrate the continuing legal questions surrounding digital
communication and State regulation.
lesson emerging from these decisions clearly states that technological
development does not create a separate constitutional space beyond judicial
review. Whether expression takes place through a newspaper, public
meeting, social-media post or another digital platform, restrictions affecting
fundamental rights remain subject to constitutional requirements.
It is also to be noted that freedom of expression is not absolute.
Therefore, the constitutional challenge lies in ensuring that the
regulation remains within the limits established by law and the Constitution.
The examination of the judiciary in this study mainly focuses on the
importance of clarity, constitutional authority, procedural safeguards,
proportionality and judicial review at a time when state actions affect digital
expressions.
The movement from streets to screens therefore in no way represents the
replacement of the constitutional democracy by modern technology. Rather, it
represents, in a way, a new environment in which constitutional principles must
be established and should continue to operate.
The courts of India have already developed significant principles for this
new environment, and the future regulation of digital expression must remain
consistent with those principles.
16. Bibliography
16.1
Constitutional and Statutory
materials
a) The
Indian Telegraph Act, 1885
b) The
Constitution of India (Article 14,19 and 21), 1950
c) The
Unlawful Activities (Prevention) Act, 1967
d) The
Information Technology Act, 2000
e) The
Temporary Suspension Of Telecom Services Rules, 2017
f) The
Information Technology Rules, 2021
g) The
Information Technology Amendment Rules, 2023
16.2
Table of cases
1. Romesh Thappar v. State of Madras, AIR 1950 SC
124.
2. Sakal Papers (P) Ltd. v. Union of India, AIR 1962
SC 305.
3. Bennett Coleman & Co. v. Union of India,
(1973) 2 SCR 757.
4. People's Union for Civil Liberties (PUCL) v.
Union of India, AIR 1997 SC 568.
5. Shreya Singhal v. Union of India, (2015) 5 SCC 1.
6. Justice K.S. Puttaswamy (Retd.) v. Union of
India, (2017) 10 SCC 1.
7. Amit Sahni v. Commissioner of Police, (2020) 10
SCC 439.
8. Anuradha Bhasin v. Union of India, (2020) 3 SCC
637.
9. Foundation for Media Professionals v. Union
Territory of Jammu and Kashmir, (2020) 5 SCC 746.
10. State (NCT of Delhi) v. Disha A. Ravi, Bail
Order, Patiala House Courts, New Delhi, 23 February 2021.
11. Kunal Kamra v. Union of India, Bombay High Court,
judgment dated 26 September 2024.
12. Union of India v. Kunal Kamra, Special Leave
Petition, Supreme Court of India (pending, admitted 2026).
How to Cite This Article
Nishtha Banerjee, Ms. Ritu Malik, From Streets to Screens: correlating digital activism, freedom of expression, state regulation and democratic participation in India. A doctrinal and case study analysis., White Black Legal – International Law Journal, ISSN: 2581-8503, Vol. Volume 4, Issue VOLUME 4 ISSUE 2, October 2026, pp. 236-259. Available at: https://www.whiteblacklegal.co.in/details/from-streets-to-screens-correlating-digital-activism-freedom-of-expression-state-regulation-and-democratic-participation-in-india-a-doctrinal-and-case-study-analysis
Author & Publication Record
Authors: Nishtha Banerjee, Ms. Ritu Malik
Registration ID: 107137 | Published Paper ID: WBL7137 & WBL7138
Year: Oct- 2026 | Volume: 4 | Issue: 2
Approved ISSN: 2581-8503 | Country: Delhi, India
Page No.: 236-259
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