ANALYZING DISSIDENT: A CRITICAL EXAMINATION OF INDIA’S  NATIONAL SECURITY LAWS AND FREE EXPRESSION

Author(s):

1. SIDDARTH RAI (IMS Unison University, Dehradun)
2. PRIYANSHU (IMS Unison University, Dehradun)

Abstract

The very spirit of democracy in India rests on the foundational right to freedom of speech and expression, a right enshrined under Article 19(1)(a) of the Indian Constitution. This constitutional guarantee has long been considered a cornerstone of India’s democratic ethos. However, the same Constitution, through Article 19(2), permits the State to impose “reasonable restrictions” on this freedom in the interests of national security, public order, and other specified grounds. In recent years, this delicate balance has come under scrutiny as various laws and regulatory frameworks have been used to curtail dissent and control the narrative. Notable among these are the Unlawful Activities (Prevention) Act (UAPA), Section 152 of the Bharatiya Nyaya Sanhita (BNS), and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. These provisions have been invoked frequently to suppress voices that challenge state authority, raising concerns about the erosion of civil liberties in the name of national security.

This article undertakes a comprehensive review of these legal and regulatory mechanisms through the lens of government documents, parliamentary debates, landmark judicial rulings, and findings of autonomous watchdog bodies. It explores whether the contemporary legislative focus represents a systematic attempt to stifle free expression and democratic dissent under the guise of sovereignty, or if it genuinely seeks to strike a constitutionally appropriate balance between individual liberties and collective security. The article ultimately aims to assess whether India’s democratic framework is evolving in alignment with constitutional ideals or diverging from them.

Introduction: The Dialectic Between Liberty and Security

In addition to being a right, free expression assists in building democracy, preserves various cultures, and inspires individuals to participate in political life. Freedom of speech, according to the Indian constitution, is reasonable, not unrestricted. The state can restrict AI or radio communication if it is for the sovereignty of the country, safety, and order. Nevertheless, the reasons are difficult to comprehend, resulting in confusion and being utilized for political reasons.

What individuals say, particularly when they differ, seems to be associated with being antinational. The imposition of discourse is more than a hyperbole; it also reflects the difference between liberal democracy and majoritarian traditions. Based on Michel Foucault, power functions through the imposition of regularity, and law is employed to discipline individuals. The article examines if the state’s objectives of national security have shifted the scale between liberty and security away from Indians.

The UAPA Regime: A Statutory Architecture of Suppression?

The 1967 Unlawful Activities (Prevention) Act was formed to deal with any threats against India’s unity and rule. After the amendments in 2008 and 2019, it became a major means of government control. Significantly, the 2019 amendment allowed the government to name individuals as terrorists without review from the courts, which it already had the power to do with groups.

Data show that from 2018 to 2020, only 3.17% of those arrested under the UAPA were convicted.

How the UAPA was used in the Bhima Koregaon case fits its pre-emptive rationale. Many years passed before Sudha Bharadwaj, Varavara Rao, and Father Stan Swamy got their rightful trials and acquittals. The UAPA gives law enforcement the power to hold someone without charge for up to six months and to assume they are guilty in bail applications (Section 43(D)(5)), which violates basic rights and the constitutional pledge of fair process.

Both the United Nations High Commissioner for Human Rights and Human Rights Watch have spoken out against the lack of discrimination in applying the UAPA. The law is being used more and more to police opinions and punish differences in political beliefs, not just target terrorism.

Sedition and the Shadow of Colonial Legacies

A law made under British rule, the sedition law (Section 124A of the Indian Penal Code) from 1870, is still not updated in today’s democracy. Kedar Nath Singh v. decided by the Supreme Court that the provision was constitutional. In Bihar (1962), the law was created to deal with acts of incitement to violence or inciting public disorder.

However, having sedition charges constantly in use for political and civil disputes poses serious constitutional problems. NCRB statistics show that 356 sedition cases took place over the past five years, with only 12 of them ending in a conviction, which is just 3.3% of all such cases. Last year, there were 93 arrests on sedition charges, highlighting the wide use of the law.

In the case of SG Vombatkere v. The 2022 case in India’s Supreme Court instructed the government to look into Section 124A because it was causing harm and was not used. No matter how big this victory for civil liberties is, the original law remains intact. 

What makes this contradiction worse is that a colonial-era law initially used to suppress the public is now being used by independent India to do so.

The IT Rules 2021

Nowadays, people are sharing their views and thoughts online. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 came into effect in response to this shift. Basically, this policy works to undermine encryption by making platforms reveal who sent messages and removing flagged content within 36 hours. 

However, rules in place allow the executive full control over checking content, despite the reason given. Such rules have been condemned by civil society organizations, with many stressing they are a threat to freedom of the press and privacy.

Recently, there have been fewer judicial actions. In Agij Promotion of Nineteenonea Media Pvt. Ltd. v. Union of India (Bombay High Court, 2021), the Court deferred the implementation of the relevant parts of Rule 9(1) and 9(3) because those parts lack support from the Statute and do not give any protection from misuse. 

As a result, the IT Rules display a large-scale example of executive overreach using delegated legislation, bypassing court, and legislative checks. It marks a tendency to monitor rather than regulate, which echoes fears worldwide about curbing digital rights in hybrid democracies.

National Security and the Principle of Proportionality

The proportionality principle is a cornerstone of constitutional rights adjudication. The Supreme Court upheld this rule in Modern Dental College and Research Centre v. State of Madhya Pradesh (2016), mandating that any limitations on basic rights must be essential, have a justifiable goal, and be the     least restrictive method feasible. 

This standard is consistently broken by the implementation of the IT Rules, sedition, and UAPA. The high rates of pre-trial detention and low conviction rates indicate that these laws’ main purpose is to immobilize dissent and apply coercive pressure rather than to get convictions. In addition to being against constitutional norms, this excessive use of state power erodes public confidence in democratic institutions.

Political Implications: Authoritarian Drift in Democratic Guise

There is a transition from democracy to what Fareed Zakaria describes as “illiberal democracy.” What is observed is the intentional invocation of national security legislation to intimidate the media, suppress student movements, and delegitimize political opposition. The elections are frequent, but the civil liberties necessary for robust participation are at risk.

India’s precipitous decline (161 out of 180 in 2023) on Reporters Without Borders’ World Press Freedom Index is a cause for alarm raised by issues related to censorship, media conglomerate domination, and state-sponsored intimidation. The UN Special Rapporteur on Freedom of Opinion and Expression has similarly drawn attention to the misuse of counterterrorism laws for muffling dissenting voices.

This erosion of public space underscores the imperative for institutional safeguards. In their absence, national security becomes a catch-all justification for suppressing democratic protest, with enduring implications for constitutional government.

Conclusion: Towards a Constitutional Equilibrium

The foundation of India’s constitutional vision is the balancing of variety and unity, freedom and order, and dissent and national integrity. However, this balance is upset by executive tools like the IT Rules and statutes like UAPA and Section 124A, which put security over freedom. This disparity undermines the Indian Republic’s democratic promise and is not only legal; it is also profoundly political.

It is constitutionally required to reform these laws, not for administrative reasons. A contemporary democracy cannot afford to uphold colonial laws or implement rules for digital censorship that circumvent due process. Free expression is essential to democracy, as the Supreme Court has underlined again and time again. The whole basis of the democratic culture would be criminalized if dissent were made illegal.

India must reaffirm its constitutional commitment to liberty, not merely through judicial interventions but through comprehensive legislative reform, robust parliamentary scrutiny, and vigilant civil society engagement.

Recommendations

The Indian constitutional culture, as expressed in the Preamble and the basic rights, requires a nuanced equilibrium between freedom of expression and national security. Nevertheless, legislation such as the Unlawful Activities (Prevention) Act (UAPA), the IT Rules of 2021, and the future Bharatiya Nyaya Sanhita (BNS), 2023, indicate an increased pattern of civilian space securitization. National security is a legitimate state interest, but not at the cost of constitutional liberty. Immediate overhaul of these legal frameworks is necessary.

The most pressing is Section 150 of the BNS, which supplants colonial law of sedition. While it broadens the offence to cover stirring up rebellion or threatening sovereignty, loose phrases such as “stirring up separatist feelings” have the potential to muzzle peaceful protest and valid criticism. To protect democratic discussion, this section must either be abolished or reworded with clear definitions, procedural protection, and thresholds—such as precedent of threat of immediate violence and judicial clearance prior to prosecution.

Similarly, the UAPA must be reformed. Over the past decade, it has become synonymous with preventive detention rather than anti-terrorism. Its low conviction rate and harsh bail provisions highlight misuse and constitutional concerns under Article 21. Reforms should include regular judicial review, higher evidentiary standards, and independent oversight for terrorist designations, with due process guarantees like notice and hearing.

The IT Rules, 2021, also require a remake. They confer unfettered executive discretion to take down content, insist on traceability, and impose platform compliance—sometimes without judicial review. This violates both free speech under Article 19(1)(a) and privacy under the Puttaswamy judgment. Reforms have to put in place clear, accountable processes involving the judiciary and restrict traceability to proportionate and necessary instances.

Judiciary’s role must be strengthened—not just as passive arbiters, but active defenders of civil liberties. Fast-track courts should prevent excessive pre-trial detentions. Legislative oversight through standing committees and the Law Commission must be regular and publicly accessible, ensuring accountability and informed public debate.

Lastly, democratic legitimacy requires that civil liberties-restricting laws be subjected to rigorous public consultation. The BNS and IT Rules did not undergo such consultation. Legislation should be participatory, with legal professionals, civil society, media, and citizens involved.

India should not allow the underlying balance between security and freedom to get undermined by fear and repression. A well-secure state provides room for disagreement and shows democratic resilience by guarding speech, not silencing it. Through value-based reforms, India can recommit itself to constitutionalism and become a more equitable and secure democracy.

References

• Constitution of India: Articles 19(1)(a), 19(2)
• Unlawful Activities (Prevention) Act, 1967 (as amended in 2008, 2012, and 2019)
• Section 152 of the Bhartiya Nyaya Sanhita (BNS) 
• Ministry of Home Affairs, Lok Sabha Unstarred Question No. 392 (March 29, 2022)
• National Crime Records Bureau (NCRB), Crime in India Reports (2016–2020)
• Reporters Without Borders, World Press Freedom Index (2023)
• Internet Freedom Foundation, Annual Report (2023)
• Supreme Court Judgments: Kedar Nath Singh v. State of Bihar (1962), SG Vombatkere v. Union of India (2022), Shreya Singhal v. Union of India (2015), Modern Dental College v. State of MP (2016)
• OHCHR, Communications on India (2022)