Author: Harsa Akhtar, BA.LLB (9th Semester), Amity Law School, Amity University Patna, Bihar
Abstract:
The misuse of criminal law to silence dissent is a significant concern in a democratic country like India, where freedom of speech and expression is an essential constitutional right. The ability to question government policies, criticize public authorities, and express opposing opinions is fundamental to the functioning of a healthy democracy. However, criminal laws that are intended to maintain public order, protect national security, and prevent unlawful activities may sometimes be misused against journalists, students, activists, and ordinary citizens who express critical views. Such misuse not only affects the liberty and dignity of individuals but also creates fear and discourages people from participating freely in public discussions. Article 19(1)(a) of the Constitution of India guarantees the right to freedom of speech and expression, while Article 19(2) permits reasonable restrictions on specific constitutional grounds.
Keywords: Criminal Law, Dissent, Freedom of Speech and Expression, Article 19(1)(a), Article 19(2), Constitution of India, Misuse of Criminal Law, Democratic Rights, Judicial Protection, Individual Liberty.
Introduction:
In a democratic country like India, the freedom to express one’s opinions, question the government, and disagree with existing policies is an essential part of constitutional democracy. Democracy does not simply mean electing representatives at regular intervals. It also means allowing citizens to express their concerns, criticism those in power, and participate in discussions about matters affecting society. A healthy democracy makes space for different opinions, including those that may be uncomfortable for the government or unpopular among the majority.
The misuse of criminal law to silence dissent is a serious concern because it affects not only the person accused but also society as a whole. When a person is arrested or repeatedly questioned for expressing an opinion, others may become reluctant to speak openly about similar issues. This creates an atmosphere in which people begin to practise self-censorship, avoiding discussions that they believe might bring legal trouble.
MEANING AND IMPORTANCE OF DISSENT IN A DEMOCRACY
Dissent refers to disagreement with an established opinion, decision, policy, or exercise of authority. It may take the form of peaceful protests, newspaper articles, social media posts, academic discussions, public speeches, or legal challenges before courts. Dissent does not necessarily mean opposition to the country or its constitutional system. In many situations, it represents an attempt to improve governance by drawing attention to injustice, corruption, discrimination, or administrative failure.
In a democratic society, citizens must have the freedom to question the decisions of their elected representatives. The government exercises public power on behalf of the people and must therefore remain open to criticism. If citizens are allowed to praise the government but are discouraged from questioning it, freedom of expression loses much of its practical meaning.
Dissent also contributes to the development of law and public policy. Several important social and constitutional reforms have emerged because individuals questioned existing practices and demanded change. Public discussions about gender equality, caste discrimination, environmental protection, civil liberties, and government accountability demonstrate how disagreement can contribute to social progress.
It is equally important to understand that freedom of dissent does not provide unlimited protection for every act committed in its name. A person cannot claim constitutional immunity for violence, deliberate incitement to crime, or other conduct that satisfies the requirements of a valid criminal offence. The important distinction is between expressing an unpopular opinion and engaging in conduct that the law legitimately prohibits.
The purpose of constitutional protection is not to prevent the government from enforcing the law. Rather, it is to ensure that the law is enforced fairly and that disagreement with the authorities is not treated as a criminal offence merely because it is inconvenient or embarrassing.
CONSTITUTIONAL FRAMEWORK UNDER ARTICLE 19
Article 19 of the Constitution of India guarantees certain fundamental freedoms to citizens. Article 19(1)(a) specifically guarantees the right to freedom of speech and expression. This provision forms the constitutional foundation for the right to communicate ideas, express opinions, discuss public issues, criticise government policies, and participate in democratic debate.
Freedom of speech and expression is essential because citizens cannot effectively exercise many other democratic rights without it. The freedom to form opinions, access information, publish criticism, and participate in peaceful public discussions helps individuals hold public authorities accountable.
Nevertheless, Article 19(1)(a) is not an absolute right. Article 19(2) allows the State to impose reasonable restrictions on this freedom in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation, and incitement to an offence.
These restrictions recognise that freedom of expression must operate alongside other legitimate interests. For example, the State may take lawful action against genuine incitement to violence or punish defamation where the legal requirements are satisfied. However, the existence of Article 19(2) does not give public authorities unlimited power to restrict speech.
Any restriction must remain within the grounds specified in Article 19(2), satisfy the applicable constitutional standards, and have a legally defensible connection with the interest being protected. Merely claiming that a statement is offensive, anti-government, or unpopular cannot automatically justify criminal prosecution.
The problem becomes particularly serious when a criminal complaint is registered without sufficient consideration of whether the alleged expression actually falls within a legally recognised restriction. In such situations, criminal law may become a means of discouraging legitimate criticism instead of addressing genuine wrongdoing.
Therefore, Article 19 requires the State to maintain a careful balance between protecting public interests and preserving the democratic freedom of citizens.
MISUSE OF CRIMINAL LAW TO SUPPRESS DISSENT
Criminal law is an important instrument for maintaining public order, protecting individuals, and responding to unlawful conduct. However, like any instrument of public power, it can be misused when legal provisions are applied for purposes unrelated to their legitimate objectives.
The misuse of criminal law to silence dissent may occur in different ways. A person may face a criminal complaint because of a social media post criticising a government decision. A journalist may be subjected to repeated questioning after publishing an investigative report. A student may face allegations following participation in a peaceful demonstration. An activist may be accused of offence carrying serious consequences even when the available evidence does not adequately support the allegations.
Not every prosecution involving a critic of the government is necessarily unlawful. Authorities may investigate genuine criminal offenses even when the accused person is a journalist, activist, student, or political opponent. The essential question is whether the action is supported by the law and evidence or whether the criminal process is being used primarily to intimidate the individual.
One of the most concerning aspects of such misuse is that punishment can begin long before a court reaches a final decision. Arrest, interrogation, repeated court appearances, legal expenses, reputational damage, and uncertainty about the future can place an enormous burden on an accused person. Even if the individual is eventually acquitted, the experience may have already affected their education, employment, finances, and personal life.
The misuse of criminal proceedings can also discourage other people from participating in public debate. A student who sees another student facing criminal allegations after a protest may decide to remain silent. A journalist who observes the consequences faced by a colleague may become hesitant to investigate a sensitive subject. In this way, the effect of criminal prosecution extends beyond the individual directly involved.
This phenomenon is particularly dangerous because it can create a culture of fear without requiring the government to formally prohibit criticism. When people believe that expressing their views may expose them to lengthy legal proceedings, they may voluntarily avoid exercising their constitutional rights.
Consequently, the misuse of criminal law threatens both individual liberty and the larger democratic environment in which public discussion takes place.
RELEVANT CRIMINAL LAW PROVISIONS AND THEIR CONSTITUTIONAL IMPLICATIONS
Certain criminal law provisions have attracted particular attention in discussions about freedom of expression and dissent. Their constitutional implications must be understood by examining both their legal purpose and the possibility of misuse.
One prominent example is sedition under Section 124A of the Indian Penal Code, 1860. The provision was historically used in cases involving alleged attempts to bring hatred or contempt against the government established by law. Critics argued that its broad wording and application could discourage political criticism and peaceful opposition.
In Kedar Nath Singh v. State of Bihar (1962), the Supreme Court upheld the constitutional validity of Section 124A but limited its application through an interpretation connecting the offence with incitement to violence or the intention or tendency to create public disorder. The decision is important because it recognised that strong criticism of the government cannot automatically be treated as sedition.
The legal position subsequently changed with the introduction of the Bharatiya Nyaya Sanhita, 2023, which came into force on 1 July 2024. The former Section 124A of the IPC was not retained under the same provision number. Section 152 of the BNS addresses acts endangering the sovereignty, unity and integrity of India. Its scope and application must be examined according to its actual statutory language and constitutional requirements. The existence of a new provision does not remove the need to distinguish genuine threats to national integrity from lawful political disagreement.
Another relevant area concerns laws addressing unlawful activities and threats to national security. The Unlawful Activities (Prevention) Act, 1967, is intended to address unlawful activities and terrorism. Such legislation serves important security objectives, but concerns may arise when stringent provisions are invoked against individuals on the basis of their political associations, public statements, or participation in activities that have not been shown to constitute the alleged offence.
Similarly, provisions relating to promoting enmity, public mischief, defamation, and offences against public order may raise freedom-of-expression concerns depending on the facts of a particular case. A statement that causes disagreement or discomfort is not necessarily equivalent to a criminal act.
The constitutional issue is therefore not simply whether a criminal provision exists. It is whether the provision is being applied in accordance with its language, purpose, evidentiary requirements, and constitutional limitations. Criminal law must not become a convenient means of punishing individuals for expressing views that the authorities dislike.
JUDICIAL APPROACH TO FREEDOM OF SPEECH AND DISSENT
The Supreme Court of India has played an important role in explaining the scope of freedom of speech and expression. Through several landmark judgments, it has emphasised that constitutional democracy requires the protection of unpopular opinions and that restrictions on speech must satisfy constitutional standards.
In Romesh Thappar v. State of Madras (1950), the Supreme Court recognised the importance of freedom of speech and expression in a democratic society. The judgment established an early constitutional foundation for protecting political communication and the circulation of ideas. It demonstrated that freedom of expression is closely connected with the ability of citizens to participate in democratic life.
Another significant decision is Brij Bhushan v. State of Delhi (1950), in which the Supreme Court considered restrictions imposed on a publication. The case contributed to the development of constitutional principles concerning restrictions on the press and the protection of freedom of expression.
In Kedar Nath Singh v. State of Bihar (1962), the Supreme Court distinguished criticism of the government from conduct involving incitement to violence or public disorder. This distinction remains relevant to discussions about criminal law and dissent because governments must be able to tolerate criticism without treating every strong statement as a threat to the State.
A particularly important judgment is Shreya Singhal v. Union of India (2015). The Supreme Court struck down Section 66A of the Information Technology Act, 2000, which criminalised certain online communications using broad and vague language. The Court found that the provision violated Article 19(1)(a) and was not saved by Article 19(2).
The judgment highlighted the danger of criminal provisions that are uncertain in their meaning and capable of covering a wide range of lawful expression. When people cannot reasonably determine which statements may expose them to criminal liability, they may avoid expressing themselves altogether. The decision is especially relevant in the digital age, when social media has become an important platform for political discussion.
In Anuradha Bhasin v. Union of India (2020), the Supreme Court examined restrictions on internet access in the context of Jammu and Kashmir. The judgment recognised the importance of freedom of speech and expression through the internet and emphasised that restrictions must satisfy legal and constitutional requirements. It also stressed the importance of making restriction orders available for judicial scrutiny.
The decision is significant because access to the internet has become essential for journalism, education, political participation, and the communication of public concerns. Restrictions affecting digital communication can therefore have consequences extending beyond the immediate subject of a government order.
Another important judgment is Vinod Dua v. Union of India (2021). The Supreme Court quashed the criminal proceedings against journalist Vinod Dua concerning remarks made in a video criticising the government’s handling of the COVID-19 pandemic. The Court referred to the principles laid down in Kedar Nath Singh and reiterated the constitutional importance of distinguishing criticism of the government from punishable conduct.
This judgment demonstrates that criticism of government policies, even when strongly expressed, cannot automatically be treated as a criminal offence. The substance of the expression and the legal ingredients of the alleged offence must be carefully examined.
Taken together, these decisions show that the judiciary has an important responsibility to protect constitutional freedoms while recognising the legitimate interests of public order and national security. Judicial review helps ensure that criminal law is not applied in a manner inconsistent with the fundamental rights guaranteed by the Constitution.
CONCLUSION
The misuse of criminal law to silence dissent represents a serious challenge to constitutional democracy in India. Criminal law is necessary for protecting society and responding to genuine offences, but its authority must always remain subject to constitutional limitations. When legal proceedings are initiated primarily to intimidate critics, punish unpopular opinions, or discourage public debate, the damage extends beyond the individual accused.
Article 19(1)(a) guarantees freedom of speech and expression, while Article 19(2) permits reasonable restrictions on specified grounds. The relationship between these provisions requires the State to protect legitimate public interests without unnecessarily restricting democratic discussion. The distinction between criticism and criminal conduct is therefore essential.
The Supreme Court’s decisions in Kedar Nath Singh, Shreya Singhal, Anuradha Bhasin, and Vinod Dua demonstrate the importance of protecting freedom of expression and ensuring that restrictions comply with constitutional requirements. These judgments also show that criminal laws must not be applied in a manner that treats disagreement with the government as inherently unlawful.
Ultimately, the strength of a democracy is not measured by how rarely its citizens disagree with those in power. It is measured by whether they can express disagreement without unreasonable fear of punishment. A constitutional democracy must provide space for criticism, peaceful protest, independent journalism, and public debate while maintaining lawful safeguards against genuine criminal conduct.
The proper use of criminal law and the protection of dissent are not opposing objectives. Both are necessary for a just and democratic society. The real task is to ensure that criminal law protects the constitutional order rather than becoming a tool for suppressing the very freedoms that the Constitution guarantees.
REFERENCES
- The Constitution of India, Articles 19(1)(a), 19(2), 32 and 226.
- The Bharatiya Nyaya Sanhita, 2023.
- The Bharatiya Nagarik Suraksha Sanhita, 2023.
- The Unlawful Activities (Prevention) Act, 1967.
- Romesh Thappar v. State of Madras, AIR 1950 SC 124.
- Brij Bhushan v. State of Delhi, AIR 1950 SC 129.
- Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
- Shreya Singhal v. Union of India, (2015) 5 SCC 1.
- Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.
- Vinod Dua v. Union of India, (2021) 8 SCC 753.
