The Supreme Court on Monday flagged concern that the abuse of the freedom of speech and expression by citizens was leading to an increase in litigation and clogging the criminal justice system in India [Wazahat Khan vs. Union of India & Ors.].

A Bench of Justices BV Nagarathna and KV Viswanathan was hearing a plea by Wazahat Khan to club criminal cases filed against him in four States, over allegedly inflammatory and communal social media posts.

Notably, a complaint by Khan had earlier led to the arrest of social media influencer Sharmistha Panoli (now out on interim bail), whom he had accused of making remarks against Muslims.

The Court today criticised Khan for his own remarks, adding that it was important for all citizens to show reasonable restraint while exercising their rights to free speech.

“Freedom of speech and expression is a very, very important freedom and a fundamental right. But if there is abuse of that freedom, it leads to litigation and clogs courts,” Justice BV Nagarathna observed.

Khan’s counsel today conceded that there was no justification for his client’s past conduct.

“There is no excuse for my conduct. I have no business making the same mistake I had accused others of. These tweets were old and in reaction to certain things. I have already apologised,” he submitted.

Justice Nagarathna remarked that Khan should have shown restraint in his remarks, even if they were reactionary.

"It is one thing for someone to act reactionary, but you don’t engage in the same thing,” the judge said.

It was Khan's complaint that had led to the arrest of influencer Sharmistha Panoli, whom he accused of posting derogatory content on Islam in relation to a post on Operation Sindoor, India's response to the Pahalgam terror attack.

Later, FIRs were lodged against Khan in Assam, Maharashtra, Delhi and Haryana over his own derogatory posts on social media.

He eventually approached the Supreme Court to club all the cases filed against him across different States, since they arose out of the same social media posts.

The Court had earlier granted him interim protection from arrest in all the FIRs lodged against him outside West Bengal. Today, the Court extended this interim protection and granted the respondent-authorities four weeks to file their replies to Khan's plea.

During today's hearing, Khan's counsel told the Court that he had since taken down his account and was no longer on social media.

Justice Nagarathna, in turn, observed that once offensive content was uploaded, its effects could not be undone.

“There is no question of taking it down, because once it is posted, it is out there. Freedom of speech and expression is a very, very important freedom and a fundamental right. But if there is abuse of that freedom, it leads to litigation and clogs courts,” she said.

The judge went on to point out that such cases divert attention from more pressing criminal cases.

“There are also other criminal cases the police can attend to instead of chasing these kinds of cases. What is the solution to this? We are not asking from the point of view of the State, we are asking from the point of view of citizens. Constantly, these kinds of things are happening," she said.

Justice Nagarathna emphasised that citizens must be conscious of the limits of their rights and should not compel the State to step in.

“Instead of the State having to regulate, why can’t the citizens have restraints themselves? Citizens must know the value of freedom of speech and expression. If they don’t, then the State will step in - and who wants the State to step in? Nobody wants the State to step in,” she said.

She added that the issue was not just the right to have an opinion, but the manner in which it was expressed.

“Having an opinion is one thing, but to say that in a particular way is an abuse. Sometimes, it will not come in the court in the context of hate speech. My learned brother rightly said that there should be fraternity between the citizens - then all this hate will come down,” she said.

Justice Nagarathna said that while Article 19(1)(a) provided a fundamental right to free speech, there are reasonable restrictions to it under Article 19(2) for good reason.

“Reasonable restrictions are rightly put. It can’t be a 100% absolute right. But citizens are abusing the freedom,” the judge said.

The Court also noted that there were challenges to ensure that free speech is not abused on online platforms. She clarified that the Court was not referring to bringing in censorship, but was concerned with the protection of constitutional values.

“In the interest of fraternity, secularism and dignity of individuals… It is not just about this petitioner. We will have to go into this beyond the petitioner,” Justice Nagarathna said.

Justice Viswanathan remarked that social awareness may offer one way to counter inflammatory content online.

“When citizens react to this by not following… If less and less people follow these kinds of tweets, how do you create this awareness?” he asked.

A State counsel responded that one way forward was to promote a form of social boycott of inflammatory speech.

“Essentially, starting a social movement in the context of identification of hate or other kinds of egregious speech and then doing that social boycott at the very beginning,” he submitted.

“Easier said than done. When will people start to find it jarring?” Justice Viswanathan remarked.

[Read Order]