Shivanand Pandit
On August 25, 2025, the Supreme Court instructed the Union government to formulate rules for regulating social media, noting that influencers frequently exploit free speech to generate income in ways that may harm vulnerable groups. A Bench of Justices Surya Kant and Joymalya Bagchi ordered that this framework be made with input from the National Broadcasters and Digital Association (NBDA). This order comes as India has nearly 491 million social media users and over 800 million internet subscribers, underscoring the challenge of balancing the protection of free expression and individual dignity.
The court issued its order in response to an intervention plea filed by a non-profit organisation supporting individuals affected by Spinal Muscular Atrophy (SMA), a rare and debilitating genetic condition. The organisation alleged that stand-up comedians Samay Raina, Vipul Goyal, Balraj Paramjeet Singh Ghai, Sonali Thakkar, and Nishant Jagdish Tanwar had “misused the freedom of speech and expression” by making derogatory remarks about persons living with SMA. During the proceedings, the Bench stressed that the right to free speech does not cover speech delivered solely for “commercial purposes.” Justice Bagchi observed, “When you commercialise free speech, you must also be careful not to wound the sentiments of particular sections of society.”
Appearing for the Union government, Attorney-General R. Venkataramani informed the court that the Centre would frame guidelines in consultation with relevant stakeholders. He noted that these measures would seek to protect “the rights of all parties concerned without undermining individual dignity, honour, and respect.” The Bench further instructed that the framework must go beyond “isolated incidents” and comprehensively address the wider challenges posed by technology and contemporary modes of communication. In addition, the court directed the comedians to issue public apologies on their YouTube channels and other social media platforms.
Legal Framework for Social Media Use
The Information Technology Act, 2000, is the main law that regulates online communication and social media in India. Section 79(1) protects platforms like Facebook (Meta), X, and Instagram from being held responsible for what users post, as long as they stay neutral and do not change or control that content. Section 69A gives the Government the power to block online content if it threatens India’s sovereignty, security, defence, foreign relations, public order, or could lead to crimes.
To strengthen accountability, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 mandate that social media platforms safeguard users, promptly remove unlawful content, and raise awareness on matters such as privacy, copyright, defamation, and national security. In 2023, these rules were amended to require intermediaries to take down any false or misleading information relating to the Government of India. However, the Supreme Court has stayed the implementation of this amendment, citing concerns over potential misuse.
The Constitution allows restrictions on free speech only on eight specific grounds under Article 19(2): the sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to offences. Laws already exist to regulate expression within these limits. The Supreme Court has repeatedly emphasised that the state cannot impose restrictions beyond these constitutionally prescribed boundaries.
In K.S. Puttaswamy v. Union of India (2017), the Supreme Court declared privacy a fundamental right under Article 21. This judgment laid the foundation for subsequent data protection frameworks, such as the Digital Personal Data Protection Act, 2023, and guided the regulation of WhatsApp’s privacy policies as well as Aadhaar data usage.
In Shreya Singhal v. Union of India (2015), the Supreme Court struck down Section 66A of the Information Technology Act, 2000. The Court said that vague terms like “annoyance,” “insult,” or “hatred” could not be used to criminalise speech. It made clear that even speech that “offends, shocks, or disturbs” is protected under the Constitution, and that limits on free speech must fit strictly within Article 19(2). This view was reaffirmed in Kaushal Kishore v. State of Uttar Pradesh (2023), where a Constitution Bench held that the grounds listed in Article 19(2) are final and cannot be stretched for any reason, however good it may seem. The Court also stressed that no one can be punished simply for holding an opinion that does not align with constitutional values.
In March 2025, the Court again applied this principle when it cancelled a criminal case filed by the Gujarat Police against Congress MP Imran Pratapgadhi over a poem considered provocative. Justices A.S. Oka and Ujjal Bhuyan said that speech may cause discomfort—even to judges—but the Court’s duty is to firmly protect the right to free expression guaranteed by Article 19(1)(a).
The Court’s thinking on commercial speech has also changed over time. In Hamdard Dawakhana v. Union of India (1959), it upheld a law banning misleading advertisements under the Drugs and Magic Remedies Act, 1954. The Court accepted that advertising is a kind of speech but said that when it is tied to trade or commerce, it is mainly profit-driven and not part of free speech.
This narrow view was reconsidered in Tata Press v. Mahanagar Telephone-Nigam Ltd. (1995), where the Court ruled that commercial speech cannot be denied protection just because it comes from businesses. The judges pointed out that advertisements benefit the public by spreading useful information in a “democratic economy” and may matter more to consumers than to advertisers. Later, in A. Suresh v. State of Tamil Nadu (1997), the Court added that business-related speech must be weighed against society’s interests. Over time, this led to a clear distinction: one kind of commercial expression helps the public by enabling informed consumer choices, while the other serves only private profit.
Regulating Social Media: A Necessity
Unregulated social media platforms often become unsafe spaces filled with abusive posts, cyberbullying, trolling, and exploitation. The most vulnerable groups—women, children, senior citizens, minorities, and persons with disabilities—face the highest risks. Fake news, deepfakes, hate campaigns, and extremist propaganda spread unchecked, harming social unity, healthy debates, and even national security. Proper regulation can stop these harmful networks and protect public order.
Addictive features like endless scrolling, the Fear of Missing Out (FOMO), and carefully crafted online identities create anxiety, depression, and dependence, especially among young people. Regulations can promote healthier online habits, ethical design of apps, and responsible communication. The rise of influencer marketing has also misled users through hidden paid promotions and unsafe product endorsements, including betting apps. Rules can bring transparency, ensure proper disclosures, and protect consumers from financial harm.
Social media companies collect and profit from huge amounts of user data, often without clear permission. This violates privacy and can also lead to surveillance and political misuse. Regulation is essential to protect the constitutional right to privacy under Article 21. While Article 19(1)(a) guarantees freedom of speech, it is subject to reasonable limits under Article 19(2) to safeguard public order, morality, decency, and national security. Thus, regulation helps separate genuine free expression from harmful or abusive content.
Regulatory Roadblocks
The sheer scale of online content makes continuous monitoring extremely challenging. Anonymity further emboldens the spread of hate speech, misinformation, and harmful material, overwhelming regulatory capacity. Social media platforms often operate with limited transparency in decision-making and accountability in their content moderation practices. The absence of independent oversight fuels concerns about opacity and arbitrariness.
Defining harmful content is inherently subjective, as social, political, and cultural perspectives vary. This lack of consensus creates grey areas between legitimate expression and prohibited speech. Efforts at regulation are frequently perceived as censorship or restrictions on free speech, particularly when criteria are unclear, subjective, or disproportionate.
A significant portion of harmful content originates beyond India’s jurisdiction, complicating enforcement under domestic law. Moreover, content moderation decisions are regularly criticized for political bias, raising doubts about platform neutrality and eroding trust in regulatory frameworks.
Social media needs a revival push
The IT Act, 2000 should be comprehensively updated through the Digital India Act to reflect today’s digital realities. The revised law must strike a balance between platform accountability, protection of user data, and preservation of freedom of expression, while ensuring that regulatory powers are subject to judicial oversight to prevent misuse or overreach. Key measures could include:
*Accountability & Transparency: Mandate periodic algorithm audits, detailed transparency reports, and the establishment of independent oversight bodies to review platform practices. Platforms should deploy AI-driven content moderation tools that ensure neutrality, fairness, and quick redressal of user complaints.
*Cybersecurity & Enforcement: Expand the network of cyber forensic laboratories, strengthen the capacity of law enforcement agencies, and integrate AI-enabled monitoring systems that can detect threats in real time, all while respecting privacy rights and encryption standards.
*Digital Literacy & User Protection: Launch nationwide campaigns to raise awareness about misinformation, deepfakes, cyberbullying, and online fraud. Encourage responsible digital behavior and promote ethical design practices that prioritize user well-being, particularly for vulnerable groups such as children, women, and the elderly.
*Global & Multistakeholder Collaboration: Strengthen international cooperation on cross-border digital regulation and harmonize standards for data governance, cybercrime, and online safety. Actively involve civil society, academia, industry leaders, and policymakers to create an inclusive and future-ready digital ecosystem.
Free Speech at a Crossroads
Today’s influencers build careers around clicks, likes, and brand partnerships, often crossing lines of decency. Many stoop to mocking disability, reinforcing stereotypes about minorities, or ridiculing the elderly. When ridicule becomes a source of revenue, it demeans communities, deepens prejudice, and widens social divides. The Supreme Court’s concern reflects its earlier observation in the Pravasi Bhalai Sangathan case (2014), where it warned that unchecked hate speech corrodes social cohesion. In a country as diverse as India, the risks are even greater.
The challenge is complicated by a new form of online activity: commercial speech. Traditional media, though profit-driven, generally functions under clear ethical codes. Influencers, by contrast, operate in a grey zone—half citizen, half business. Their content blurs the line between personal opinion and paid promotion. Recognising this, the Court has called for guidelines on commercial speech, asking pointedly: “Anybody can start making fun… where is all this going to end?” It is crucial to note that this is not a censure of satire or critique. Satire is essential to democracy, for it punctures arrogance and exposes hypocrisy. But mocking someone’s disability or age is not satire—it is cruelty masquerading as entertainment. To monetise such cruelty cannot be defended as free expression.
The Court’s reminder is timely. First, Parliament must define “commercial speech” in the digital age and clearly distinguish private expression, satire, and monetised content. Influencer promotions and brand endorsements should be held to the same standards as consumer protection laws. Second, audiences must shoulder responsibility: disengaging from toxic creators, demanding better content, and exercising collective conscience. Words must remain free—but never inhuman.
Yet, there is also reason for concern. By urging the Union government to draft rules regulating speech on social media, the Supreme Court risks empowering an executive that has already weaponised the law to curtail expression. The Court’s intervention in response to a petition against derogatory online remarks about disabled persons furthers a troubling pattern: judicial encouragement for state intrusion into grey areas of speech regulation, often at the cost of constitutional liberties.
To treat distasteful humour—however offensive—as a matter for state control is to fall into the trap of imagined righteousness. Expanding powers to police speech brings predictable dangers: governments use them to silence art, satire, or political critique they dislike; journalists face legal harassment for doing their jobs; filmmakers hesitate to explore socially relevant themes. A climate of censorship breeds self-censorship, smothering truths essential to democracy.
India already criminalises hate speech and incitement to violence, providing disadvantaged groups with legitimate avenues of justice. Adding more discretionary power to the executive—especially one with a track record of misusing media and speech regulations—risks tipping the balance towards authoritarianism. The Supreme Court’s duty is to safeguard rights under the Constitution, not to act as an overlord setting vague moral limits. Free speech can be messy, unsettling, even unpleasant—but it is the foundation of a vibrant democracy.
