By Dilip Bobb
As the Supreme Court taken a worrying U-turn on its stand on free speech? In 2022, it ordered that Alt News co-founder Mohammed Zubair be given bail and rejected the imposition of a ban on his social media accounts. It said, then, that “Gag orders have a chilling effect on the freedom of speech”. Now, in the multiple cases filed against YouTuber/podcaster Ranveer Allahbadia, it seems to have reversed its position. While it did grant him interim protection from arrest, it also restrained him from airing any show till the next date of hearing. In other words, a gag order.
More concerning was the Court’s description of some remarks the influencer used that triggered the controversy as being “disgusting,” the product of a “perverted mind,” and bringing “shame to families and society”. The bench led by Justices Surya Kant and N Kotiswar Singh remarked: “There is a height of irresponsibility. They believe that since they’ve become popular, they can say anything. There’s dirt in his mind. Why should the court favour such a person?”
Such strong language smacks of judicial puritanism in a contemporary age, and also left the door open for the government to wade into the controversy. The Information and Broadcasting Ministry quickly warned social media channels and OTT websites to follow the Code of Ethics prescribed in the IT Rules (2021) and ensure critical self-regulation, as well as implement “access control for ‘A’ rated content”. All this is because of one man and one podcast for some allegedly obscene remarks made by Allahbadia during an episode of comedian Samay Raina’s comedy show “India’s Got Latent”. The remarks were off-the-cuff and also objectionable since it involved parents and sex, but the broader question is to do with Constitutional rights. As Saurabh Kirpal, a senior advocate at the Supreme Court, wrote: “Traditionally understood, the Constitution recognises that a citizen has a right to various freedoms, including the right to free speech. So, an order where the court restricts free speech flips the Constitutional scheme on its head. Where is a citizen to go when his/her free speech is restricted by the very authority meant to protect it.”
Apart from that, a key issue is how quick governments and now the courts are prone to react to public outrage. Despite his apology on the show, it created a huge backlash. Posting a statement on social media, Allahbadia said: “I am watching death threats pour in from people saying they want to kill me… hurt my family…” Samay Raina went so far as to erase all episodes of “India’s Got Latent” from YouTube, worried that he too could come under fire from the public, government agencies and indeed, the courts. So headline-grabbing and hysteria-creating has that one liner from Allahbadia become that even The New York Times ran a piece on the issue, asking: “But what of freedom of speech? One fear is that politicians will see the BeerBiceps uproar as an opening to regulate online content.” The article quoted Apar Gupta, a lawyer and founder of the Internet Freedom Foundation, who had argued in The Hindu, that Allahbadia and his friends were “mere pawns in the great game for control of our digital media”.
That is indeed a scary thought, that one man can set off such an official and judicial reaction, or over-reaction as some might call it. That one man has now changed the rules of the game as far as online content is concerned, both by the judiciary as well as the central government. As Kirpal concluded: “Sadly, this is a step towards the normalisation of censorship.”
Viewed objectively, the apex court order goes against its earlier stout-hearted defence of free speech in Shreya Sanyal vs Union of India (2015) where it said that vague restrictions on free speech can lead to a “chilling effect”, the same phrase it used when delivering its judgment in the Zubair case. This comes when the Parliament Standing Committee on Communications and Information Technology has asked the Ministry of Information Technology to look at bringing online platforms under legal scrutiny. The Supreme Court had already sought the government’s response on whether it was considering addressing the regulatory “vacuum” in online content.
So, who is Ranveer Allahbadia and why has he become such a hate figure and also a legal game changer as far as online content is concerned? He was an average engineering student who turned to podcasting and earned the so-called “influencer” tag, thanks to the 12 million followers who tune into his online content on multiple platforms. He started his YouTube channel, BeerBiceps, which focuses on fitness, cooking, self-development, and styling. He also has a podcast, The Ranveer Show, where he interviews experts and celebrities from various fields. He has co-founded several ventures, including Monk Entertainment, a talent management agency, and BigBrainco, a YouTube channel. He also launched Level Supermind, a self-help app. All that has made him not just a superstar in the online world, but also a very rich one. He has interviewed federal ministers, top Bollywood celebrities, cricketers and Hollywood actors. Last year, Prime Minister Narendra Modi handed him a “National Creators Awards” trophy.
Fame can be a double-edged sword, but it also highlights the precarious position comics and content creators increasingly find themselves in, where jokes are subject to legal scrutiny, public outrage and screaming headlines in print as well as actual screaming during news channel debates. That one man can change the rules of the game as far as online content is concerned, both by the judiciary as well as the central government, is, to say the least, a scary reminder that among the known tools of oppression, censorship tops the list. Last week, social media channels and OTT websites were warned to follow the Code of Ethics prescribed in the IT Rules (2021) and ensure critical self-regulation, as well as implement “access control for what it termed ‘A’ rated content”.
In the Supreme Court, Allahbadia was represented by Advocate Abhinav Chandrachud, ironically enough, son of the former Chief Justice of India DY Chandrachud. Chandrachud relied on Apoorva Arora vs State (2024) to argue that the usage of profanity does not amount to obscenity. The bench countered that the case was about “the parameters of obscenity, of vulgarity, in a civilised society.” Chandrachud argued that Allahbadia’s remarks were made on a show that was locked behind a paywall—available only to adults who paid a subscription fee. He claimed it was never meant for a general audience. The Court was unimpressed. “When you copy a dialogue from somewhere, you must also follow the precautions they take. You don’t care about that,” the Court observed, pointing out that snippets of the show had been widely circulated on social media, fuelling the outrage.
Ironically, the 2022 order granting bail to Mohammed Zubair, a three-judge bench had rejected the Uttar Pradesh government’s plea that the accused must be barred from tweeting while on bail. That bench was headed by Justice DY Chandrachud. “Merely because the complaints… arise from posts that were made by him on a social media platform, a blanket anticipatory order preventing him from tweeting cannot be made. A blanket order directing the petitioner to not express his opinion—an opinion that he is rightfully entitled to hold…—would be disproportionate to the purpose of imposing conditions on bail. The imposition of such a condition would tantamount to a gag order against the petitioner. Gag orders have a chilling effect on the freedom of speech,” the Court said then.
What raises eyebrows, and causes considerable concern, is the sweeping restrictions prohibiting Allahbadia and his associates from airing any show on YouTube or other audio-visual platforms “until further orders”. This broad and unexplained condition directly infringes upon their fundamental rights—violating both the right to free speech and expression under Article 19(1)(a) and the right to practice a profession under Article 19(1)(g) of the Constitution.
While reasonable restrictions on these rights are permitted in public interest, the State bears the burden of justifying their necessity, proportionality, and reasonableness. Yet, the Supreme Court offered no rationale for this extreme measure, essentially barring an individual from his constitutional rights. “It feels like the State is trying to make an example out of Allahbadia,” says Gupta.
Popular comedian Vir Das also weighed in on the controversy and criticised news channels for their one-dimensional coverage of the incident and for taking a disparaging view of all digital content. The BBC joined in the debate, writing: “The amount of attention the incident has received is mind-boggling: it has made national headlines, been covered on primetime TV and some of India’s most prominent news sites have even run live pages.”
Raina’s show, which debuted in June, has been increasingly popular, with each episode being viewed millions of times on YouTube. And it has not shied away from controversies. The show has platformed some bizarre performances and judges and contestants have been seen making crass and crude comments. A popular fashion influencer once walked out of the show after a male contestant compared her to a former adult film actress while another asked her about her “body count” (a slang term for the number of sexual partners a person has had). Yet, that only seems to have raised the appeal and viewership of the show. The Allahbadia episode was, against that backdrop, hardly deserving of the kind of hyped and hysterical outrage it received in public, the judiciary, traditional media and politicians eager to weaponise the issue for their own self-serving ends.
What added fuel to the fire were the news channels in a constant race to enhance their TRP’s by hysteria-fuelled content and blowing up controversies way beyond what they deserve in a normal, civilised society. What is also pertinent is that social media has changed the rules of the game. As an editorial in The Indian Express last week said: “In an era where digital platforms are the new public square, the judiciary must remain vigilant against tools of oppression, however benign their guise and well-meaning their intention.”
Obscenity is regulated by a number of laws in India, especially when it comes to digital or electronic media. The publication or transmission of obscene content on online platforms falls under the ambit of Section 67 of the Information Technology Act, 2000. The relevant question is what is the standard of deciding whether an act falls under the ambit of obscenity or not? Till recently, courts in India have applied the Hicklin Test laid down in the 19th century by Chief Justice Alexander Cockburn for deciding upon the cases of obscenity. It is quite alarming that a century later, in the case of Ranjit D Udeshi vs State of Maharashtra, the Supreme Court upheld and applied the Hicklin Test, which had come to represent morality throughout the Victorian era.
It wasn’t until 2014 that the apex court, in the case of Aveek Sarkar vs State of West Bengal, abandoned the centuries-old Hicklin test in favour of the American Supreme Court’s community standard test. That test is seen as being highly subjective in nature. The current stand taken by the Supreme Court bench seems to display a paternalistic approach which is often based on public sentiment and the “noise” created on news channels. Legal experts and civil rights activists argue that imposing broad restrictions on online content contradicts established legal precedents and could have a devastating effect on content creators.
Last week, Allahbadia reported to Mumbai’s Cyber Crime Cell to record his statement, a move that suggests his remarks as aired are now being seen as a criminal offence. The Supreme Court’s handling of this issue will be crucial in determining the future of online free speech in India. As humorist Ramesh Srivats pointed out: “He apologised. Some people accepted. Some didn’t. This is not a hate crime. If anything, it’s a taste crime. I didn’t know that was in the books.”
The episode has a larger message for the freedom of the press in general. The truth is that laws related to obscenity are vague and ambiguous enough to allow judges to bring in their own personal convictions while judging what is obscene and what is not. Kirpal concludes his article with these “chilling” words. “When the courts become party to restricting, rather than protecting free speech, the citizens of the country ought to be afraid indeed.”
—The writer is former Senior Managing Editor, India Legal magazine