The Context: On August 25, 2025, the Supreme Court urged the Union government to frame guidelines for regulating social media, observing that influencers often commercialise free speech in ways that can offend the sentiments of vulnerable groups.
The directive comes at a time when nearly 491 million Indians are active on social media, highlighting the challenges of safeguarding free expression while simultaneously protecting individual dignity.
WHAT WERE THE DIRECTIONS ISSUED?
The court’s order stemmed from an intervention application filed by a non-profit supporting individuals affected by Spinal Muscular Atrophy (SMA), a rare and debilitating genetic disorder. The organisation alleged that stand-up comedians Samay Raina, Vipul Goyal, Balraj Paramjeet Singh Ghai, Sonali Thakkar, and Nishant Jagdish Tanwar had “abused the freedom of speech and expression” by making derogatory comments about individuals suffering from SMA.
During the proceedings, the Bench emphasised that the right to free speech does not encompass speech made purely for “commercial purposes”. When you are commercialising free speech, you should also bear in mind not to hurt the sentiments of certain sections of society.
The court also ordered the comedians to issue public apologies on their YouTube channels and other social media platforms for their offensive remarks about persons with disabilities.
COMMERCIAL SPEECH NOT PROTECTED UNDER ARTICLE 19(1)(A)
In Hamdard Dawakhana v. Union of India (1959), advertisers challenged the constitutionality of the Drugs and Magic Remedies Act, 1954. While the court acknowledged that advertising is “no doubt a form of speech, but commercial advertisements, being “part of a business,” do not fall within the “essential concept of the freedom of speech” protected under Article 19(1)(a).
THE CONTRARY JUDGEMENTS
Tata Press v. Mahanagar Telephone-Nigam Limited (1995), the court held that commercial speech should not be denied constitutional protection merely because business entities issue it. The ruling recognised that commercial advertisements serve the public interest, as they disseminate information in “a democratic economy” and may be of “much more importance to the general public than to the advertiser who may be having purely a trade consideration”.
Similarly, in A. Suresh v. State of Tamil Nadu (1997), the court observed that “where the freedom of speech gets intertwined with business, it undergoes a fundamental change and its exercise has to be balanced against societal interests.”
In 2015, in the case of Shreya Singhal v. Union of India, the Supreme Court struck down Section 66A of the Information Technology Act, 2000. The ruling affirmed that speech which “offends, shocks, or disturbs” remains constitutionally protected, and that restrictions on free speech must satisfy the test of reasonableness under Article 19(2).
The principle was reiterated in Kaushal Kishore v. State of Uttar Pradesh (2023), where a Constitution Bench held that the grounds enumerated in Article 19(2) are exhaustive and cannot be expanded, however well-intentioned the attempt.
WHAT ARE THE IMPLICATIONS?
It is important to recognise that the digital space is not a lawless frontier. Social media companies are bound by the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, under the Information Technology Act, 2000, which require them to prevent their platforms from being used to disseminate obscene, pornographic, or otherwise harmful content.
Social media influencers, too, are not beyond the reach of ordinary criminal law and may be held accountable for what they say online just as much as for what they say offline.
WAY FORWARD
1. It is difficult to demarcate a line between freedom of speech and commercialisation of speech
2. The court itself seems to have contradicting judgements
3. In 2024, SC itself struck the Fact Check Unit of the government to precentorship of social media
4. The IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, under the Information Technology Act, 2000 are adequate to tackle any such misuse by social media.
Handing an executive, which already has a record of mala fide weaponisation of media and speech regulations, more powers would be dangerous in the extreme. At a fundamental level, such judicial pronouncements, which cite “misuse of freedom of speech” as a ground, seem to misperceive the framework of their institutional role: that of a protector of rights under a clear constitutional framework, and not of an unchallenged lord in a feudal society.
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