Why in News: On August 25, 2025, the Supreme Court directed the Union government to frame guidelines for regulating social media content, after observing that influencers often commercialise free speech in ways that may hurt the dignity of vulnerable groups.
Context:
- SC Bench urged the Centre to draft guidelines in consultation with the National Broadcasters and Digital Association (NBDA).
- Case arose from a plea by an NGO supporting individuals with Spinal Muscular Atrophy (SMA), who alleged derogatory remarks by comedians.
- Court ordered comedians to issue public apologies.
- Court observed: “When you commercialise free speech, you must bear in mind not to hurt sentiments of certain sections of society.”
Constitutional Framework
- Article 19(1)(a): Guarantees freedom of speech and expression.
- Article 19(2): Permits “reasonable restrictions” on specific grounds:
- Sovereignty & integrity of India
- Security of State
- Friendly relations with foreign States
- Public order
- Decency or morality
- Contempt of Court
- Defamation
- Incitement to offences
- Restrictions must satisfy the test of reasonableness and be narrowly tailored.
Supreme Court Jurisprudence on Free Speech
- Shreya Singhal v. Union of India (2015): Struck down Sec 66A IT Act; vague grounds like “annoyance” not permissible.
- Kaushal Kishore v. State of UP (2023): Article 19(2) grounds are exhaustive; no expansion possible.
- Imran Pratapgadhi case (2025): Reaffirmed that even speech which discomforts judiciary remains protected.
Commercial Speech and its Limits
- Hamdard Dawakhana v. Union of India (1959): Purely commercial ads not free speech.
- Tata Press v. MTNL (1995): Commercial speech that informs public is protected.
- A. Suresh v. State of Tamil Nadu (1997): Commercialised speech must be balanced with societal interests.
Principle: Commercial expression serving public interest is protected, but purely profit-driven derogatory content is not.
Existing Legal and Regulatory Framework
- IT Act, 2000 and IT (Intermediary Guidelines & Digital Media Ethics Code) Rules, 2021 regulate intermediaries and digital media.
- Provisions against obscene, pornographic, defamatory, or harmful content already exist.
- Influencers and creators remain subject to ordinary criminal law (e.g., IPC provisions on defamation, obscenity, hate speech).
Challenges
- Thin line between regulation and censorship – Over-regulation may stifle democratic dissent.
- Judicial inconsistencies – Polyvocality in SC judgments (as noted by Gautam Bhatia) creates uncertainty.
- Commercialisation of speech – Influencers monetise content, blurring the line between free expression and business.
- Technological dynamism – Social media evolves faster than legal frameworks.
- Risk of chilling effect – Fear of penalisation may discourage creative/artistic expression.
Implications of the Court’s Push
- Positive: Protects dignity of vulnerable groups; ensures accountability of commercial influencers.
- Negative: Risks expansion of restrictions beyond Article 19(2) if guidelines are vaguely worded.
- Institutional Impact: Places responsibility on the government (executive) but requires strong judicial oversight to prevent overreach.
Way Forward
- Principle-based regulation – Ensure that guidelines remain within Article 19(2).
- Stakeholder consultation – Include civil society, digital platforms, and creators, not just NBDA.
- Clarity in commercial speech – Distinguish public interest communication from private profit-making speech.
- Self-regulation mechanisms – Encourage social media platforms and influencer associations to adopt codes of ethics.
- Judicial consistency – Larger benches may help reduce doctrinal inconsistencies in free speech jurisprudence.
- Awareness & digital literacy – Citizens must be sensitised to responsible digital expression.
Conclusion
The real test lies in drafting guidelines that uphold constitutional guarantees while preventing abuse, ensuring that India remains both a vibrant democracy and a dignified society.
UPSC Relevance
GS Paper-II: Polity & Governance
- Fundamental Rights – Freedom of Speech and Expression (Art. 19)
- Regulation of Digital Media and Social Media Platforms
Mains Practice Question
Q. The Supreme Court recently directed the Union Government to frame guidelines to regulate social media content, especially commercialised speech, while safeguarding dignity and free expression. Discuss the constitutional provisions, judicial precedents, and challenges involved in balancing free speech with accountability in the digital age. Suggest a way forward. (15 marks, 250 words)