Tryst with the Constitution: The many constitutional questions arising from the Samay Raina case

Last week, the Supreme Court quashed the FIRs registered against comedian Samay Raina and others over remarks made on India’s Got Latent, bringing to a close the year-long proceedings.

The case had an interesting trajectory, starting with a petition by YouTuber Ranveer Allahbadia and others seeking protection against multiple FIRs lodged against them and any coercive action that might follow (these FIRs are still pending). Subsequently, the Court expanded the scope of the proceedings to include a discussion on the need for regulations to prevent the airing of programmes containing offensive remarks.

The scope was further widened when the Court admitted a Public Interest Litigation (PIL) concerning remarks made by Raina and others against persons with disabilities and clubbed it with the previous petitions. Therefore, a case which was originally about the narrower question of protection against arrest became a larger inquiry into offensive remarks and the need for regulation, reprimand and reparations.

This column focuses on the key questions that arise from these proceedings, in particular, the directions which effectively amounted to pre-censorship, proceedings that took the form of a mini-trial and a voluntary command-and-control approach of the Court. At the outset, it is clarified that this column neither endorses nor agrees with the remarks made by Raina and others and, in fact, condemns them. Its focus is solely on the constitutional concerns arising from the proceedings.

During the first hearing itself, the Bench severely reprimanded Allahbadia, terming his remarks ‘filthy’, ‘disgusting’ and ‘insulting’, and even going on to remark, “Why should the Court hear this kind of person?” However, in its order, the Court stayed the FIRs against him and ordered that no coercive action be taken until further orders. It also directed that Allahbadia could not leave the country and asked him to surrender his passport. Additionally, the Court prohibited Allahbadia or his associates from airing any show on YouTube or through any other audio-visual mode of communication.

The Court has the power to impose reasonable conditions while granting interim relief. However, ordinarily, such conditions are connected to the case and aimed at ensuring a fair investigation or trial. For instance, preventing the petitioner from tampering with evidence, fleeing the country, or approaching the witnesses. The direction passed by the Court went beyond such conditions and effectively amounted to a gag order, preventing the petitioner from exercising his freedom of speech on the apprehension that he may break the law again. Effectively, it is an anticipatory restriction imposed for fear of an offence that has not yet been committed.

In its previous decisions, the Court has categorically refrained from issuing such directions. For instance, in Mohammed Zubair v. State (NCT of Delhi) (2022), where FIRs had been filed against the petitioner over his social media posts, while granting bail, the Court refused to pass a blanket anticipatory order prohibiting him from posting online. It observed:

“A blanket order directing the petitioner to not express his opinion – an opinion that he is rightfully entitled to hold as an active participating citizen – would be disproportionate to the purpose of imposing conditions on bail.”

The Court further observed that such a gag order would violate not only the right to freedom of speech but also the freedom to practise a profession under Article 19(1)(g).

The present direction is difficult to reconcile with this judgment and is also concerning because it applied not only to Allahabadia, but also to his ‘associates’, who were not parties to the petition.

It must be flagged that FIRs against the petitioners had already been registered and investigations were ongoing in Maharashtra to determine whether their remarks violated any law. This is the ordinary criminal process to be followed, where culpability is determined through investigation and trial on the basis of evidence and punishment follows only upon a finding of guilt. However, the nature of the proceedings and the directions passed effectively bypassed this ordinary route. In addition to the anticipatory restriction discussed above, while hearing the PIL, the Court directed Raina and others to personally appear before it, failing which coercive steps would be taken. At the subsequent hearing, it directed them to tender an apology through their social media handles and to stream it on YouTube and other platforms.

A direction of this nature necessarily proceeds on a determination of wrongdoing, without first establishing that the remarks violated any law. The mere fact that they were distasteful or offensive cannot warrant a judicially compelled apology. In other words, if they violated any law, the ordinarily criminal procedure must follow and, if not, there is no basis for a compelled apology.

The proceedings in the PIL also took the form of the Court seeking to achieve socially desirable outcomes, rather than establishing a violation of a constitutional provision or law. For instance, on November 27, 2025, the petitioner organisation submitted that a corpus should be created to provide financial aid and assistance to persons suffering from Spinal Muscular Atrophy (SMA). Thereafter, it requested the Court to direct Raina to organise a programme where he would invite persons from the community to share their success stories. During the hearing, the Bench suggested that such a programme be conducted fortnightly to spread awareness about medical treatment, with any revenue generated from it going towards the benefit of the community. It is reported that Raina’s counsel submitted that organising two such events every month would be difficult. However, the Court urged the counsel to consider the suggestion, with the Solicitor General reportedly remarking, ‘make it happen’.

Interestingly, the final order is not reflective of these deliberations and instead records them as a voluntary measure on part of Raina and others. It reads,

“Respondent Nos. 6-10 have also volunteered to organise at least two events each month, either in person or online, to raise funds for the aforementioned corpus. They also seek permission from this Court to invite, on their show, the individuals whose brief details have been brought on record by Ms. Singh.”

The deliberations and the ultimate order reflect what may be described as a ‘voluntary command-and-control’ approach, where the Court does not formally direct a litigant to undertake a particular course of action, however, its suggestions leave the litigant with little practical choice but to offer an undertaking in those terms.

For instance, the final sentence of the order reads,

“We hope and trust that such memorable events will take place before we hear the matter on the next date.”

Such an observation is bound to weigh on a litigant who is awaiting relief from the Court. More broadly, such an approach risks linking the grant of judicial relief to compliance with directions that have little connection with the legal questions before the Court.

The nature of the directions passed by the Court is certainly reflective of its well-intentioned approach towards protecting vulnerable groups and addressing the harm caused by offensive remarks. However, even well-intentioned directions must remain tethered to constitutional limits and established legal principles. Otherwise, they risk creating a precedent for restrictions and remedies that may subsequently be invoked in cases where the consequences are far less benign.

Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy.

Views are personal.