In a July 2025 decision reaffirming foundational principles of free expression, the High Court of Himachal Pradesh granted bail to Farooq Ahmad, a man accused of sharing allegedly “anti-Nation, anti-Army, anti-Hindu and anti-Prime Minister” videos. The Court, in Farooq Ahmad v. State of Himachal Pradesh, applied decades of constitutional jurisprudence to conclude that while the content might be in “bad taste,” it did not meet the high threshold required to constitute incitement to violence or public disorder. This judgment serves as a crucial anchor for exploring the broader, often fraught, landscape of free speech in India.
The nation’s legal system appears to have developed a dangerously bifurcated approach to speech offenses. On one hand, courts have forged a robust shield for expression prosecuted under the general penal law, demanding direct and imminent incitement to violence before speech can be criminalized. On the other hand, a parallel and far more restrictive regime has emerged through the executive’s increasing reliance on special security laws, particularly the Unlawful Activities (Prevention) Act, 1967 (UAPA). The application of UAPA in cases rooted in speech and protest effectively neutralizes these hard-won constitutional safeguards. This analysis will explore this dichotomy, tracing the evolution of free speech doctrine and its contemporary application and circumvention.
The Doctrine in action –Farooq Ahmad v. State of Himachal Pradesh
The bail order in the Farooq Ahmad case is a textbook example of the judiciary applying established free speech principles to check executive overreach under the general penal code.
Facts and judicial reasoning
The case against Farooq Ahmad began after a complaint that he had shared videos on his Facebook account that were deemed “anti-Nation, anti-Army, anti-Hindu and anti-Prime Minister” and had hurt the feelings of common people. He was subsequently arrested and charged under Sections 152, 196, and 197 of the Bharatiya Nyaya Sanhita (BNS), which correspond to the former Indian Penal Code (IPC) sections for sedition and promoting enmity between groups.
In deciding the bail petition, Justice Rakesh Kainthla of the Himachal Pradesh High Court undertook a careful application of established legal doctrines. The judgment extensively cites and relies on the very precedents that form the judicial shield for free speech. The court invoked Vinod Dua v. Union of India [2021 SCC Online SC 414] to reiterate the principle that sedition (now Act endangering sovereignty, unity and integrity of India-Section 152 BNS) applies only to activities intended to create disorder through violence.
The court also applied the tests for promoting enmity between groups (Section 196 BNS) as laid down in cases like Balwant Singh v. State of Punjab [1995 (3) SCC 709] and Manzar Sayeed Khan v. State of Maharashtra [2007 (2) SCC (CRI) 417]. It reaffirmed that mens rea, or the criminal intent to cause disorder and incite violence, is an essential condition of the offense. The court searched for a direct link between the shared content and any resulting violence. After the videos were played in court, the judge made a critical distinction that lies at the heart of modern free speech jurisprudence. The order states, “They may be in bad taste, but they do not tend to incite any person to violence or create disturbance in public peace. Hence, prima facie, the applicability of Sections 152 and 196 of BNS is highly doubtful.” This finding demonstrates a clear refusal to conflate offensive speech with criminal incitement. Finding no “spark in a powder keg,” the court granted bail, thereby upholding the constitutional mandate.
The Judicial shield – Forging the line between speech and incitement
The principles applied in the Farooq Ahmad case were not created in a vacuum. They are the product of a decades-long judicial effort to interpret and fortify the constitutional guarantee of free speech against legislative and executive encroachment.
Constitutional foundation and doctrinal evolution
The foundation of this right is Article 19(1)(a) of the Constitution, which guarantees all citizens the “freedom of speech and expression”. This right, however, is not absolute. Article 19(2) allows the state to impose “reasonable restrictions” on specified grounds, including “public order,” “decency or morality,” and “incitement to an offence”. The term “public order” was added via the First Amendment in 1951 after early Supreme Court judgments interpreted the original, narrower grounds strictly, thereby limiting the state’s power to curb speech.
The judiciary’s most significant contribution has been to define the line where speech crosses from being merely critical or offensive to criminally punishable. This evolution occurred over two landmark cases:
1. Kedar Nath Singh v. State of Bihar [1962 SCR Supl. (2) 769]: Tasked with deciding the constitutional validity of the colonial-era sedition law (Section 124A IPC), the Supreme Court chose to uphold the law but severely narrowed its scope. The Court ruled that for speech to be seditious, it must have a “pernicious tendency or intention of creating public disorder or disturbance of law and order” by resorting to or inciting violence. This was a crucial step, shifting the focus from the disloyalty of the words to their tangible effect on public order.
2. Rangarajan v. P. Jagjivan Ram [1989 SCC (2) 574]: This case, concerning the censorship of a film critical of caste-based reservations, further refined the test. The Supreme Court rejected the heckler’s veto—the idea that speech can be suppressed because some people might react violently. More importantly, it tightened the standard from a vague tendency to a requirement of immediacy. The Court famously held that the connection between speech and the anticipated disorder must not be “remote, conjectural or far-fetched”. The expression must be “inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg'”.
This “spark in a powder keg” doctrine became the high wall protecting free speech under the IPC/BNS framework. It demands that the state prove a direct and imminent link to violence, making it difficult to lawfully prosecute dissent, criticism, or offensive speech.
3. The UAPA veil – When process becomes punishment
While the Rangarajan doctrine provides strong protection under general law, its principles are often rendered irrelevant when the state invokes special legislation like the UAPA. This creates a system where an individual’s liberty depends not on the nature of their speech, but on the statute used to prosecute them.
The 2021 bail order in the case of climate activist Disha Ravi illustrates the doctrine working as intended. Arrested for editing and sharing a “toolkit” in support of the farmers’ protests, she was charged with sedition under the IPC. The sessions judge, granting her bail, found that the toolkit contained no call for violence and famously observed that “citizens are conscience keepers of the government” and cannot be jailed simply for disagreeing with state policies. The court looked for the “spark” and, finding none, upheld her liberty.
In stark contrast is the case of activist Umar Khalid, arrested in connection with the 2020 Delhi Riots. Instead of just IPC charges, he was booked under the UAPA for being part of an alleged conspiracy. This strategic choice of statute fundamentally altered the legal landscape for him. His speeches were not tested against the Rangarajan standard of imminent incitement; instead, they were framed as part of a “terrorist act” conspiracy. The most critical consequence of invoking UAPA is its stringent bail provision, Section 43D(5). This clause states that bail shall not be granted if the court believes the accusation is “prima facie true” based on the police charge sheet. The Supreme Court’s 2019 judgment in NIA v. Watali [2019 (2) SCC (CRI) 383] interpreted this to mean that courts cannot conduct a detailed analysis of the evidence or its merits at the bail stage. If the police version of events appears true on its face, bail must be denied. Although later judgments of the Supreme Court in cases such as Union of India v. KA Najeeb [2021 (2) SCC 202] held that ‘gross delay’ in trial violates the right to life and personal liberty under Article 21 by deviating from the Watali judgement, Umar Khalid continues to languish in jail without a trial.
However, Umar Khalid’s case showed that bail is not the whole rule anymore when special security laws are invoked and it has meant over four years of pre-trial detention for him. His bail pleas have been rejected, with courts feeling constrained by the Watali precedent and the “prima facie true” test. The process itself—prolonged incarceration without trial—becomes the punishment, creating a chilling effect on free expression that the carefully constructed doctrines of Kedar Nath and Rangarajan were meant to prevent.
Conclusion
The Indian legal system currently operates with two different sets of rules for speech. A rights-protective regime, exemplified by the Farooq Ahmad and Disha Ravi bail orders, governs offenses under the general penal code. It demands a high, specific standard of imminent incitement to violence. Alongside it exists a liberty-denying regime under the UAPA, which allows the state to bypass these constitutional safeguards through procedural means, leading to punitive pre-trial detention, as seen in the case of Umar Khalid.
This schism poses a serious threat to democratic freedoms. The fear of being ensnared in the UAPA’s procedural web is a powerful deterrent to dissent. The judgment in Farooq Ahmad is a welcome reminder of the judiciary’s role as a guardian of constitutional liberties. It underscores the importance of applying the “spark in a powder keg” test rigorously, ensuring that the state cannot criminalize speech that is merely unpopular, critical, or in “bad taste.” Upholding this distinction is essential to preserving the space for open debate and dissent that defines a healthy democracy.
(The author is part of the legal research team of the organisation)
Related:
Mixed Messaging: Free speech jurisprudence from the Supreme Court
Between Free Speech and Public Order: Dissecting the complaint against Anjana Om Kashyap
Recalibrating Free Speech: The Supreme Court’s constitutional turn in the digital age