ON JULY 5, the Andhra Pradesh High Court issued a circular directing all judicial magistrates to comply with the law laid down by the Supreme Court before remanding accused booked in cases pertaining to social media posts. The magistrates should confirm that the police officer conducted the mandated preliminary inquiry before lodging an FIR in such cases, as laid down in Imran Pratapgarhi v. State of Gujarat (2025), and recorded valid grounds for arrest, as required in Arnesh Kumar v. State of Bihar (2014). It was noted that the magistrates were remanding the accused in such cases without adhering to the principles laid down by the Supreme Court. Crucially, the High Court cautioned that magistrates who ignore these instructions can be held in contempt of court and face departmental action.
This circular implements a two-tier safeguard against frivolous FIRs and arrests for speech. First, Pratapgarhi requires the police to conduct a preliminary inquiry under Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita before even registering an FIR in cases of speech, writing, or artistic expression that carry imprisonment of 3 to 7 years. Second, the magistrate must verify that this police inquiry was conducted and that the Arnesh Kumar safeguards were strictly followed. These require the magistrate to be satisfied that there are specific grounds justifying custody such as repeated offences, a likelihood of witness intimidation, or a genuine need for custodial interrogation to prevent tampering with evidence. This layered review - first by police, then by courts, aims to prevent the misuse of criminal law to curb free speech.
Several courts have issued similar directions in the past few years. In 2021, the Madhya Pradesh High Court directed police authorities and judicial magistrates to implement the Arnesh Kumar guidelines in all cognizable offences punishable up to 7 years. However, these guidelines were merely persuasive. By contrast, the current circular makes the process mandatory for the magistrates and warns them of contempt proceedings in cases of non-compliance.
Gaps in practice
Though these steps are laudable, it is worth noting that almost everything the Supreme Court and High Courts have now underscored is already embedded in the statutes. The Code of Criminal Procedure has long required officers to justify arrests, obtain supervisory approval, and furnish written reasons; the new Bharatiya Nagarik Suraksha Sanhita specifically mandates preliminary inquiries for offences of this category. These decisions therefore do not create novel safeguards so much as repackage what the law already prescribes. That the judiciary must keep restating such fundamentals exposes a deeper malaise: clear rules are routinely ignored at the police station and, all too often, rubber‑stamped in the remand court. The very need for repeated judicial reminders is evidence of systemic non‑compliance, an institutional failure that erodes the credibility of criminal procedure and makes constitutional liberties hostage to discretion rather than to law.
Beyond the individual indignity of having one’s name dragged through the criminal justice system, routine FIR‑filing corrodes the very foundations of our constitutional democracy. When police registration of cases becomes “automatic” for social‑media posts or academic commentary, targeting professors, law students, journalists and activists alike, it signals that Articles 19 and 21 have become hollow abstractions rather than enforceable safeguards. The act of lodging an FIR, even if ultimately quashed, can cause lasting harm. A person’s reputation may suffer, employment opportunities can be affected, and the shadow of criminality may unjustly fall on lawful dissent.
More alarming is the message it sends to the wider public, that free speech, especially if it offends the reigning orthodoxy, will be met not with debate but with criminal suspicion. These “paper promises” of procedural protections evaporate when state functionaries weaponize arrest processes with impunity, and there is no genuine accountability for those who abuse the power to file cases. If this culture is permitted to flourish, the promise of “procedure established by law” rings utterly hollow. Life and personal liberty cannot be taken away without legal authority, yet we have seen police bypass judicial scrutiny, flout statutory safeguards and strip citizens of their freedom on the basis of opaque or nonexistent grounds.
The remedies ostensibly available, approaching the High Courts or Supreme Court, are beyond the reach of most. Litigation costs, delay and systemic backlog render meaningful access to justice a privilege of the few. Meanwhile, the majority endure chilling self‑censorship. Such pervasive erosion of fundamental rights undermines public faith in the rule of law and corrodes democratic discourse.
The Andhra Pradesh High Court’s circular is a welcome corrective to arbitrary arrests for speech. It creates a formal two-step filter against abuse: police cannot mechanically file FIRs, and courts cannot mechanically order remand without justification. But we must ensure these checks are not just paper promises. In a democracy, we cannot allow custodial powers to be wielded lightly against people’s tweets or poems. Preserving the right to speak freely, especially when it offends, requires constant effort.