FREE SPEECH IN THE CLICK ERA: Redefining Constitutional Limits on Digital Speech in India

 

INTRODUCTION

Digital platforms like X, YouTube, Threads, Reddit and LinkedIn have completely changed how people communicate, express ideas and take part in public affairs. Information now travels instantly, conversations spread rapidly, and online spaces have become central to democratic engagement. This expansion reflects the spirit of Article 19(1)(a),[1] which places free expression at the heart of Indian democracy.

At the same time, the unfiltered nature of social media has brought serious concerns. Misinformation, hate campaigns, deepfakes and manipulated content circulate faster than they can be verified. These dangers bring Article 19(2)[2] into sharper focus, especially when the digital world operates without a clear, modern legal framework.

As online speech gains the power to shape public perceptions, spark unrest and affect individual dignity, India faces a crucial constitutional question: how do we protect freedom while addressing digital harm? This blog examines how that balance can be achieved.

FREE SPEECH IN THE DIGITAL ERA

A. The Expanding Reach of Article 19(1)(a)

Article 19(1)(a) promotes free and open communication, encourages accountability and supports India’s pluralistic traditions. Courts have consistently widened its scope in response to social and technological changes.

In Romesh Thapar v State of Madras and Brij Bhushan v State of Delhi, the Supreme Court made it clear that free expression includes circulation of ideas without pre-censorship.[3] R. Rajagopal v State of Tamil Nadu broadened this further to include digital forms of communication.[4]

Commercial speech received protection in Tata Press Ltd v MTNL,[5] recognising that advertisements also inform the public. Electronic broadcasts were protected in Odyssey Communications v Lokvidayan Sanghatana.[6]

The right to receive information, recognised in Raj Narain, and the right to dissent through silence as held in Bijoe Emmanuel, show how Article 19(1)(a) continues to evolve.[7]

B. Reasonable Restrictions Under Article 19(2)

To balance free expression with the interests of society, Article 19(2) allows reasonable restrictions. These include security of the State, public order, defamation, contempt of court, decency, morality, sovereignty and integrity.

Security of the State applies only to serious threats such as rebellion or espionage, not criticism of the government. Defamation and contempt of court remain valid grounds under the Contempt of Courts Act 1971 and Articles 129 and 215.[8]

In S. Rangarajan v P. Jagjivan Ram, the Court stressed that restrictions must be narrow, necessary and proportionate. This principle is central as digital platforms amplify speech to unprecedented levels.[9]

C. Why Social Media Challenges Free Speech Doctrine

Social media introduces complexities the Constitution never anticipated. Algorithms decide what becomes visible, anonymity makes accountability difficult and content spreads across borders within seconds.

Deepfakes illustrate the problem clearly. Recent AI-generated videos involving Shilpa Shetty show how easily identities can be misused. Political content is often edited or manipulated, shaping public opinion before facts emerge. The Kanhaiya Kumar episode in 2016 demonstrated how quickly online narratives fuel polarisation.

These developments raise serious questions about truth, fairness and democratic participation.

SUPREME COURT'S APPROACH TO DIGITAL SPEECH

A. Shreya Singhal and Online Expression

Widespread misuse of Section 66A of the IT Act led to the landmark decision in Shreya Singhal v Union of India.[10] The law allowed arrests for vague terms like “annoying” or “offensive,” which resulted in arbitrary action, including the arrest of two young women in Maharashtra for a Facebook post. This violated Articles 14, 19(1)(a) and 21.[11]

Drawing from Romesh Thapar and Whitney v California,[12] the Court held that satire, criticism and political commentary lie at the heart of free expression. Section 66A was struck down, ensuring that online spaces remain open to democratic debate.[13]

B. Proportionality in Anuradha Bhasin

In Anuradha Bhasin v Union of India,[14] the Supreme Court held that restrictions on internet access must satisfy the proportionality test. Any shutdown must serve a legitimate aim, be the least restrictive option and undergo regular review. The Court recognised that the internet has become essential for exercising rights under Article 19(1)(a).

C. Private Platforms and Horizontal Rights

With private platforms dominating public discourse, the Court in Kaushal Kishor v State of Uttar Pradesh acknowledged that certain constitutional rights may operate horizontally when private actors shape the public sphere.[15] This is an important development as content moderation decisions increasingly determine who gets heard online.

DIGITAL HARMS AND THEIR DEMOCRATIC IMPACT

A. Deepfakes and Synthetic Manipulation

Deepfakes are one of the most worrying digital threats today. AI-generated videos that imitate real individuals create confusion, harm reputations and interfere with democratic processes. Countries such as China and Singapore have already enacted specific legal frameworks to address this.

India now faces the challenge of distinguishing legitimate satire from malicious manipulation without suppressing creativity or political expression.

B. Algorithmic Spread of Hate and Misinformation

Algorithms prioritise engagement over accuracy. Content that provokes anger or shock often receives more visibility, creating echo chambers and narrowing democratic dialogue. Harmful posts may go viral before platforms can intervene.

This environment quietly influences public opinion, raising concerns about fairness and inclusiveness.

C. Online Harassment and Manipulated Targeting

Doxxing, impersonation, abusive trolling and deepfake pornography have become routine. Women, journalists, students and activists often reduce their online presence due to constant harassment. This “chilling effect” limits discussion, shrinks participation and impacts elections, where misinformation spreads rapidly.

REGULATORY GAPS IN INDIA

A. Weaknesses of the IT Act 2000

The IT Act was drafted long before social media evolved. It focuses on e-commerce and cyber fraud, not deepfakes, impersonation or algorithmic manipulation. Section 79 on intermediary liability and Section 69A on blocking powers remain vague, leading to inconsistent enforcement and self-censorship.

Although the Digital Personal Data Protection Act, 2023 introduces a more structured framework for handling personal data, it does not directly address misinformation, deepfakes or algorithmic manipulation. Its focus remains on consent, lawful processing and data protection obligations, which leaves a gap in regulating harmful digital speech. As a result, privacy is better protected, but the challenges of synthetic content and targeted manipulation still require separate safeguards

B. Concerns Around the IT Rules 2021 to 2023

The IT Rules were introduced to increase accountability but raised serious concerns. Traceability requirements threaten encryption, and government fact-checking powers may chill political criticism. Courts have questioned whether broad categories like “fake” or “misleading” meet constitutional standards under the proportionality test.[16]

C. Section 69A and Lack of Transparency

Although the Supreme Court upheld Section 69A in Shreya Singhal,[17] it did so expecting transparent procedures. In reality, most blocking orders remain confidential, limiting public knowledge and judicial review.

COMPARATIVE GLOBAL MODELS

The United States follows a highly protective free speech model, allowing restrictions only when speech directly incites imminent lawless action, as held in Brandenburg v Ohio.[18] Platforms enjoy broad immunity under Section 230 of the Communications Decency Act, which supporters see as encouraging open debate but critics say enables misinformation.

The European Union adopts an accountability-based system. Under the Digital Services Act, large platforms must assess and reduce risks linked to harmful or misleading content, while the General Data Protection Regulation ensures strong data protection and greater user rights.

The United Kingdom focuses on preventing online harm. The Online Safety Act places a duty of care on platforms to address issues such as cyberbullying and grooming. While some fear over-regulation, the aim is to keep digital spaces safer without curbing legitimate speech.

DRAWING A BALANCE LINE FOR INDIA

A. Protecting Democratic Speech

Democracy survives only when people can openly question the government and debate public issues without fear. Article 19(1)(a) protects even uncomfortable, unpopular or sharp criticism.[19] Restrictions should apply only when speech clearly crosses into real harm like deepfake deception or incitement. In the digital age, the rule must stay simple: speech is free unless it creates concrete, immediate danger not just because it offends someone.

B. Transparency and Platform Accountability

Social media platforms quietly decide what the country sees, what trends, and which voices get buried. Users rarely know why a post was removed or why their reach suddenly drops. To keep digital spaces fair, platforms should give clear reasons for takedowns, allow proper appeals and reveal how their algorithms rank content. Safe harbour must depend on responsible behaviour, not blind immunity.

C. Independent Oversight for Digital Governance

Right now, government blocking orders often stay secret, and automated moderation removes content without giving people a chance to respond. India needs a neutral, expert-led digital oversight body that reviews takedowns, handles user appeals and ensures transparency. With judicial involvement and technical expertise, such a body can protect rights while addressing serious digital harms under Section 69A fairly, openly and without political influence.

CONCLUSION

Free speech online is strained by deepfakes, harassment and misinformation. The rule must stay simple that speech remains free unless it causes real harm under Article 19(2). India now needs stronger safeguards and transparent platforms to manage digital risks responsibly and may soon need a dedicated AI governance framework like the EU AI Act, focusing on deepfakes and automated decision-making.

Pushkar Singh (B.A., LL.B. Student at GNLU, Gandhinagar)

“Law. Insight. Perspective.”

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[1] Constitution of India 1950, art 19(1)(a).

[2] Constitution of India 1950, art 19(2).

[3] Romesh Thapar v State of Madras AIR 1950 SC 124; Brij Bhushan v State of Delhi AIR 1950 SC 129.

[4] R Rajagopal v State of Tamil Nadu (1994) 6 SCC 632.

[5] Tata Press Ltd v MTNL (1995) 5 SCC 139.

[6] Odyssey Communications Pvt Ltd v Lokvidayan Sanghatana (1988) 3 SCC 410.

[7] State of UP v Raj Narain (1975) 4 SCC 428; Bijoe Emmanuel v State of Kerala (1986) 3 SCC 615.

[8] Contempt of Courts Act 1971, s 2; Constitution of India 1950, arts 129, 215.

[9] S Rangarajan v P Jagjivan Ram (1989) 2 SCC 574.

[10] Shreya Singhal v Union of India (2015) 5 SCC 1.

[11] Constitution of India 1950, arts 14, 19(1)(a), 21.

[12] Romesh Thapar v State of Madras AIR 1950 SC 124; Whitney v California 274 US 357 (1927).

[13] Shreya Singhal v Union of India (2015) 5 SCC 1.

[14] Anuradha Bhasin v Union of India (2020) 3 SCC 637.

[15] Kaushal Kishor v State of Uttar Pradesh (2023) 4 SCC 1.

[16] Anuradha Bhasin v Union of India (2020) 3 SCC 637.

[17] Shreya Singhal v Union of India (2015) 5 SCC 1.

[18] Brandenburg v Ohio 395 US 444 (1969).

[19] Constitution of India 1950, art 19(1)(a).