‘Vulgar’ social media allegations vs freedom of speech

Nowadays, social media users are profusely indulging in various allegations to criticise or, at times, defame politicians in power or in opposition. Ironically, although no two parties are alike, the allegations are almost the same-defaming each other. They file FIRs and other complaints and then they go to investigation and trials in courts.

Recently, some posts on social media came up with some ‘sensational’ allegations that had the potential into ‘criminal’ offences.

One such post entered into a legal battle - Nalla Balu, Durgam Shashidhar Goud v. State of Telangana & Ors. It was judged by Justice N. Tukaramji on September 10, 2025.

Three allegations:

One user commented that a party is the “scourge of the state,” likening it to a pest. Another has ‘used’ a photograph with the caption, “No Vision, No Mission, Only 20% Commission.” The other ‘abused’ allegedly vulgar remarks directed at the legislature leader. Sometimes, police, while some individuals. Police registered offences including provocation to cause riot, intentional insult, public mischief, defamation, criminal conspiracy, and obscenity under Section 67 of the IT Act. Whether these comments reflect ‘political opinion’ and hence are protected under Article 19(1)(a), or lacked the intent or effect necessary to legal/criminal action.

Is it opinion or allegation, or crime, or civil wrong? Telangana High Court, upon examining the facts of a case, considered that while social media posts can amount to cognizable offences such as defamation, incitement, or public mischief, the prosecution must prima facie establish both intent and harmful effect before filing an FIR.

Post No 1-“This government is a ‘scourge like a pest”:

One post, describing the ruling party as a “scourge” and likens it to a “pest”.

Post No 2- “No Vision, No Mission, Only 20% Commission!”

Criminal Petition (No. 4905 of 2025) has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), seeking quashment of the proceedings in FIR registered at Police Station, CCPS Ramagundam, Telangana Cyber Security Bureau (“TSCSB”) against the petitioner (or accused).

In another criminal petition (No.4903), similar charges sought quashing of the FIR. So-called criticism with a photograph says “No Vision, No Mission, Only 20% Commission! This is how the 15-month rule of the … is in Telangana.”

Social Media Post No. 3. “Vulgar messages”

Another user of social media complained that while browsing the social media platform X, he had encountered allegedly vulgar and abusive messages posted by two individuals, including the petitioner, targeting an important leader. The case has been registered for offences punishable under Sections 352 and 356(2) read with Section 3(5) of BNS.

Can a third person defame?

Under Section 356 of BNS (defamation), an advocate stated that the provision mandates that the complaint must be made by the ‘aggrieved person’ and not by any unrelated third party. Similarly, Section 67 of the Information Technology Act, 2008 (the IT Act), which penalises the publication or transmission of obscene material, is inapplicable, as even accepting the impugned statements at face value, they amount, at best, to political criticism and not obscenity. It was alleged that social media posts attributed to the petitioner, which contain the alleged statements, are prima facie evident from the record.

Freedom of speech-Allegations of defamation:

To proceed with prosecution on such imputations, the investigating agency must prima facie find admissible material both the requisite intent, called mens rea and actus reus of the alleged act, it means: Actus reus (the guilty act) and mens rea (the guilty mind) are foundational principles in criminal law, requiring both a wrongful physical act and the corresponding criminal intent for a crime to occur, though some offenses (strict liability) don’t need mens rea. Actus reus is the physical part, like a harmful action or omission where there’s a duty to act, while mens rea involves intent, knowledge, recklessness, or negligence, forming the mental component. Together, they ensure a person isn’t punished just for bad thoughts, but for carrying them out with a blameworthy state of mind.

What is defamation?

While reading out the essential ingredients to make a case under such circumstances, the Court stated that “Mere publication of offensive or critical content, without making out a case of an intention to cause the prohibited consequences, is insufficient to proceed with the criminal proceedings. Authentication of the content, proper collection of evidence and positive identification of the person responsible for the posting are essential prerequisites.”

The Supreme Court and other courts, in this regard, are duty-bound to adopt a balanced approach, safeguarding the constitutional guarantee of freedom of speech and expression under Article 19(1) (a) while ensuring that such freedom does not extend to speech that causes tangible harm, such as misinformation, targeted harassment, or incitement to disorder. Preserving this balance is critical to both democratic discourse and the maintenance of public order.

What is the legal position?

Telangana High Court, upon review of the social media posts complaints, observed the legal position as:

The first post, which describes the … (one political) party as a “scourge” and likens it to a “pest,” is harsh and metaphorical but constitutes political criticism. It does not attract Section 192 of the BNS on promotion of enmity, since it targets a political party and not a protected group. Nor does it fall within Section 352 BNS on intentional insult or Section 353(1)(b) BNS on public mischief, as there is no imminent threat of public disorder. At most, it could amount to defamation under Section 356 read with Section 61(2) BNS; however, statutory exceptions such as truth for public good and fair comment provide strong defences.

The second post, which alleges “20% commission” in the rule of the ruling party in Telangana, is closer to the domain of defamation as it names both the leaders and the party. A government cannot sue for defamation, as held in R. Rajagopal v. State of Tamil Nadu (1994), but individual ministers and political parties as associations may do so. Even here, statutory defences of truth and fair comment in the public interest remain available. Sections 192, 352, and 353(1)(b) BNS are inapplicable, as the criticism is political, not communal or provocative.

The third post, involving vulgar and abusive remarks against the Chief Minister, may at best be construed as defamation. Section 67 of the Information Technology Act, 2008, which penalises obscene material in electronic form, is not applicable, as the remarks, though abusive, are not obscene.

It looks like ‘defamation’, nearer to ‘abuse’, or again it appears to be ‘vulgar’ and seriously critical, but a serious consideration of the criminality or the other, in depth. It is a lesson to understand defamation. And hence, read Justice N Tukaramji as stated:

Constitutionally, all three posts fall within the protection of Article 19(1) (a), which guarantees freedom of speech and expression.

Restrictions under Article 19(2) apply only in narrow circumstances such as defamation, incitement to violence, or imminent threat to public order.

The Supreme Court in Maneka Gandhi v. Union of India (1978), Rangarajan v. P. Jagjivan Ram (1989), and Subramanian Swamy v. Union of India (2016) has consistently affirmed the high level of protection granted to political expression in a democracy.

All three FIRs were quashed, upholding the freedom of speech and expression, whether in general media, or social media like Facebook, Whatsapp or ‘X’ medium.

(The writer is Advisor, School of Law, Mahindra University, Hyderabad)