It is the prerogative of the legislature to make laws or not. Law is not a solution for every unethical act in human conduct, which would need a social or cultural diagnosis and appropriate remedies. For example, one is not punished for ingratitude, for it is only a moral wrong and not a penal offence. If a person tells a lie to their spouse, unless it contains penal ingredients, they are not punished. Bad Samaritans cannot be prosecuted for being bad. Such instances of moral wrongs are numerous in human life.
When it comes to freedom of speech and expression, legislation is a more serious business. Free speech is a constitutional guarantee under Article 19(1) (a). This can only be subjected to reasonable restrictions as indicated in Article 19(2) of the Constitution. Whether a law restrictive of free speech is reasonable or not is for the constitutional court to decide. Given the scheme of things, the court asking other branches of the state to enact restrictive legislation is bound to be inherently problematic. It negates Montesquieu’s age-old idea of the separation of powers.
The Supreme Court called for a law on digital content when YouTuber Ranveer Allahbadia challenged the multiple cases against him in different parts of the country. The court’s demand for restrictive laws renders the constitutional scheme under Article 19 nugatory, as this writer has previously noted in an earlier piece (TNIE, March 12, 2025).
Recently, the Supreme Court took up the matter again. This time, five other comedians were present in court as per the court’s direction. Comedians who allegedly mocked the disabled were directed to post apologies on social media. The court reiterated the need to frame guidelines to regulate social media posts and to draw a line between “free speech and hurtful speech “. The Attorney General offered to develop a proposal. The court also said that suggestions are to be called from all stakeholders, including the Bar. Thus, almost a legislation by the executive, at the instance of the judiciary, is on the cards.
The peculiarity of the last day’s hearing is its focus on “commercial speech”. Commercial speech is seen as being afforded lesser free speech protection compared to non-commercial speech, at least in the American context. This is the picture emerging from the First Amendment to the US Constitution.
In India, Article 19(1)(a), on the face of it, does not distinguish between commercial speech and non-commercial speech. The distinction between the two is neither simple nor clear. It is contingent and dependent. In Hamdard Dawakhana v. Union of India (1959), the Supreme Court rejected the challenge to the law regarding objectionable advertisements of drugs and magic remedies. The drug producer, among other things, contended that the advertisement is entitled to get free speech protection.
Repelling the contention, the Supreme Court upheld the statute which was intended to control or prohibit the advertisement of drugs in certain scenarios. It was laid down that the commercial advertisement cannot, as of right, claim protection under Article 19(1)(a). Yet, the five-judge bench had an easy job, as it was considering a straightforward case of commercial advertisement that required regulation for the public good.
However, in the Indian Express Newspapers Case (1984), the court intervened in the imposition of duty, which led to a reduction in pages and a consequent decrease in the space allocated for advertisements in the newspaper. The court thus implied that commercial speech too could claim Article 19 (1)(a) protection. The same was the indication in Tata Press v. Mahanagar Telephone Nigam (1995). Again, in Suresh v. State of Tamil Nadu (1996), the court noted that the freedom under Article 19(1)(a), when mixed with commercial interest, will have “to be balanced against societal interest”.
Thus, the Supreme Court always invoked a contextual approach to the topic. Formulating a rigid rule on the point is not easy, either through legislation or adjudication.
Let us come back to the present case in the Supreme Court. The quality of the content offered by influencers of our time might often be questionable. One would think that there is an artistic and cultural erosion, ostensible on the screen. Yet, it is one thing to acknowledge this issue, and quite another thing to call for a law to ‘set it right’.
Whether influencers are always commercialising the speech is a complex and contestable issue. On extension, a newspaper article containing a political opinion or social view would be termed an instance of commercial speech. One might argue that the newspaper also engages in commercial activity, as it generates income, and the writer, too, receives remuneration. This approach is clearly untenable.
There are two more issues involved. First, the country already has comprehensive laws governing online and offline content, including the Information Technology Act 2000, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, and the Cable Television Network Regulation Act and Rules. The latter’s Advertisement Code, for example, bans content that derides groups, “presents criminality as desirable”, or projects derogatory images of women.
The Programme Code under the same Rules prohibits any telecast or publication that “offends against good taste or decency”. Almost everything, from obscenity to innuendos and half-truths, is prohibited under the code. These are provisions beyond the conventional statutes and codes, such as the Indian Penal Code, now revised as the Bharatiya Nyaya Sanhita. There is already criticism that the 2021 Rules on digital platforms have the potential to meddle with digital freedom, with a chilling effect on free speech. There are instances of abuse and misuse of these laws by the state.
The second issue that the court and the government will have to address is the impact of a relatively recent Constitution Bench decision in Kaushal Kishor (2023), which held that additional restrictions on free speech, beyond those permitted by Article 19(2), are impermissible. The court, in that case, specifically addressed instances of hate speech and disparaging comments, and outlined legal remedies for aggrieved persons to pursue before judicial forums. The court refused to suggest, much less direct, the framing of any guideline or even a voluntary code of conduct to regulate the speech of public functionaries. In the light of Kaushal Kishor, the propriety of the two-judge Bench adopting a different course of action on commercial speech would require juridical debate. The ongoing controversy underlines the need for constitutional pragmatism.
Kaleeswaram Raj | Lawyer, Supreme Court of India
(Views are personal)
(kaleeswaramraj@gmail.com)