Context: The Supreme Court has directed the Union government to frame guidelines to regulate conduct on social media. The SC noted that influencers often commercialise free speech in ways that may offend the sentiments of vulnerable groups.
Relevance of the Topic: Mains: Freedom of Speech and Expression in Digital Era.
Form Guidelines to regulate Conduct on Social Media: SC
- The guidelines to regulate conduct on social media, including online shows such as podcasts, should be framed in consultation with the National Broadcasters and Digital Association.
- Rationale: To balance free speech with the equally important right of varied communities to live in society with dignity, and sensitisation of social media users.
Article 19 of Indian Constitution: Right to Free Speech & Expression
- Article 19 outlines the fundamental rights of Indian citizens related to freedom of speech and expression.
When can limits be imposed on Free Speech?
Article 19(2) specifies the grounds for reasonable restrictions on Article 19. These include:
- Sovereignty and integrity of India
- Security of the State
- Friendly relations with foreign states
- Public order
- Decency or Morality
- Contempt of Court
- Defamation
- Incitement to an offence
However, the Supreme Court has consistently held that the state cannot impose restrictions beyond these constitutionally prescribed limits.
Regulation of Commercial Speech:
The Supreme Court’s jurisprudence has consistently recognised that even commercial speech falls within the ambit of Article 19(1)(a).
Sakal Papers v. Union of India (1962):
- The government sought to limit the number of pages a newspaper could publish. The SC struck this down as unconstitutional as such a measure curtailed both the dissemination of news and the circulation of newspapers.
- It affirmed that the freedom to publish any number of pages and to reach as many readers as possible is an essential component of the right to free speech under Article 19(1)(a). The same logic extends to other forms of expression.
- Tata Press Ltd. v. MTNL (1995): The SC ruled that advertising, as a form of commercial speech, also comes under the ambit of freedom of speech and expression Article 19(1)(a).
The fact that speech is commercial or perceived to be driven by profit cannot in itself justify its regulation.
Associated Criticism and Concerns:
1. Legal Mechanisms for Prosecution already Exist:
- Digital media is already governed by a robust statutory framework. Social media companies are bound by the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 under the IT Act, 2000 which require them to prevent their platforms from being used to disseminate obscene, pornographic, or otherwise harmful content.
- The IT Act 2000 further establishes a censorship framework that permits the removal of online content pursuant to court orders or executive directions.
- Social media influencers can be held accountable for what they say online under the ordinary criminal law. The existing takedown regime under Section 69A of the IT Act and the Blocking Rules, 2009, is already opaque. Aggrieved individuals are often not given notice before their content is removed.
In practice, the legal mechanisms are frequently invoked without adequate adherence to principles of natural justice. Thus, the court’s apprehension appears misplaced.
2. Reasonable Restrictions already exist under Article 19(2):
- The reasonable restrictions on free speech under Article 19(2) of the Constitution are already exhaustive. The SC has consistently held that the state cannot impose restrictions beyond these constitutionally prescribed limits. Any additional regulation could impinge upon the fundamental right to freedom of expression.
3. Framing legal definition of Dignity and risk of Expansive Censorship:
- Reasonable restrictions on free speech under Article 19(2) do not include the protection of individual dignity. But, it is challenging to legally define the amorphous concept such as dignity.
- To treat dignity as an independent ground for restricting speech, particularly when invoked on the basis of individual sensibilities, risks inviting expansive censorship. Such regulations are likely to exert a chilling effect on speech.
Associated Court Cases:
- Shreya Singhal v. Union of India (2015):
- The SC struck down Section 66A of the Information Technology (IT) Act, 2000, holding that vague grounds such as “annoyance,” “insult,” or “hatred” cannot justify the criminalisation of speech.
- The ruling affirmed that speech which “offends, shocks, or disturbs” remains constitutionally protected, and restrictions on free speech must satisfy the test of reasonableness under Article 19(2).
- Rehana Fathima case (2021): The Supreme Court overturned a Kerala High Court order that prohibited activist Rehana Fathima from posting her views on social media, citing free speech concerns.
- Mohammed Zubair’s bail case (2021): The Uttar Pradesh government sought to ban Alt News co-founder Mohammed Zubair from tweeting while he was out on bail. The SC rejected the request holding that such restrictions would create a "chilling effect" on free speech. The restriction was an unjustified violation of his right to practice his profession.
- Kaushal Kishore v. State of Uttar Pradesh (2023): The Constitution Bench held that the grounds enumerated in Article 19(2) are exhaustive and cannot be expanded, however well-intentioned the attempt. The judges underscored that no one can either be taxed or penalised for holding an opinion which is not in conformity with the constitutional values.
- Imran Pratapgadhi Case (2025): The SC emphasised that Article 19(1)(a) protects not only agreeable speech but also views that may offend or disturb. It remains the court’s “duty to uphold” and “zealously protect” the fundamental freedom to free speech guaranteed under Article 19(1)(a).
Arguments in Favour of Comprehensive Guidelines:
- Uphold dignity and do complete justice: The concerns regarding the participation of differently-abled persons in public life and the preservation of their dignity are legitimate. The SC possesses inherent jurisdiction under the Constitution to do “complete justice” to account for the wider social ramifications of online speech.
- In the Subramanian Swamy v. Union of India (2016), the SC upheld the constitutionality of criminal defamation, recognising individual dignity as one of the bases for sustaining the remedy.
However, any limitation on the freedom of speech and expression must be imposed through a duly enacted law, and such restrictions must also withstand the test of proportionality.