Should commercial speech on digital platforms be regulated?

Is there a regulatory vacuum that necessitates new guidelines?

Apar Gupta: No. The circumstances underlying the present order demonstrate that legal mechanisms for prosecution already exist. The very basis on which the Supreme Court entertained this matter was the FIRs lodged by the State governments of Maharashtra and Assam under various provisions of the Bharatiya Nyaya Sanhita, 2023 (BNS), and the Information Technology (IT) Act, 2000, in connection with a stand-up skit uploaded on YouTube titled India’s Got Latent. The IT Act further establishes a censorship framework that permits the removal of online content pursuant to court orders or executive directions. In practice, this mechanism is frequently invoked in secrecy and without adequate adherence to principles of natural justice. Thus, the court’s apprehension of a regulatory void in addressing online speech appears misplaced. Its concerns seem driven more by public sentiment than grounded in any constitutional foundation.

Jay Vinayak Ojha: I believe one ought not to attempt to “fix what is not broken”.  These very proceedings arose from a series of FIRs, which demonstrates that legal mechanisms are already in place. While the wisdom of individual provisions may certainly be debated, their existence cannot be denied. In my view, Mr. Raina’s jokes were in exceptionally poor taste. Yet, to construct an elaborate framework of legislation, subordinate rules, or guidelines on the basis of a single incident would be an overreaction.

Is protecting individual dignity a constitutionally permissible ground to restrict speech?

Jay Vinayak Ojha: The reasonable restrictions on free speech under Article 19(2) of the Constitution are exhaustive, encompassing security of the state, public order, decency, morality, and other grounds. They do not, however, include the protection of individual dignity. As established by prior Supreme Court precedents, restrictions on free expression cannot extend beyond these expressly defined categories. It is, therefore, a slippery slope to suggest that speech may be curtailed on the basis of a somewhat amorphous concept such as dignity, which lacks a precise legal definition. That said, concerns regarding the participation of differently abled persons in public life and the preservation of their dignity are legitimate. Moreover, the court possesses inherent jurisdiction under the Constitution to do “complete justice”, a mandate that empowers it to account for the wider social ramifications of online speech. Over time, it has become increasingly accepted that the court functions not merely as an adjudicator of disputes but as an integral institution in the evolution of public policy.

Apar Gupta: Dignity, by itself, is not a constitutionally recognised ground for restricting free speech. Any limitation on the freedom of speech and expression must be imposed through a duly enacted law, and such restrictions must also withstand the test of proportionality. They should be no more excessive or intrusive than necessary to achieve the stated objective. In Subramanian Swamy v. Union of India (2016), the Supreme Court upheld the constitutionality of criminal defamation, recognising individual dignity as one of the bases for sustaining the remedy. However, to treat dignity as an independent ground for restricting speech, particularly when invoked on the basis of individual sensibilities, risks inviting expansive censorship.

Could such regulations be used to silence speech deemed unpalatable?

Jay Vinayak Ojha: Yes, such regulations are likely to exert a chilling effect on speech. Restrictions based on morality or defamation may legitimately intersect with questions of dignity, and in those instances, the Constitution permits limits on expression. The difficulty arises when dignity is invoked as an independent basis for restriction, which is not constitutionally defensible. Such a move would inevitably curtail the freedom of comedians, satirists, and other artists, and discourage them from performing with candour.

Apar Gupta: I do not endorse the jokes aired in this particular show. Yet, we must recognise that literature and stand-up comedy often confront society with uncomfortable truths and compel us to reflect. For instance, when people laugh at a joke about disability, it raises difficult questions—does it expose the persistent lack of respect, protection, and access accorded to persons with disabilities? The Supreme Court itself has acknowledged the importance of protecting even unpalatable speech.  In March, it quashed a criminal case initiated by the Gujarat Police against Congress MP Imran Pratapgadhi, accused of inciting discord through a poem. A Bench headed by Justice A.S. Oka emphasised that Article 19(1)(a) protects not only agreeable speech but also views that may offend or disturb. Moreover, concerns persist that the Union government may revive the Broadcasting Services (Regulation) Bill, criticised for placing even independent creators under government scrutiny. If we concede that online content must serve only a “social value” defined by the majority, we risk sliding into mass censorship or worse, the arbitrary suppression of voices the state finds inconvenient.

Does the profit-driven nature of commercial speech justify its regulation?

Apar Gupta: Commercial speech should not be dismissed as irrelevant to public discourse. Our society runs on commerce and trade, and free expression itself is often likened to a “marketplace of ideas”. A classic example is Sakal Papers v. Union of India (1962), where the government, acting under the Newspaper Act of 1956 and the Daily Newspaper Order of 1960, sought to limit the number of pages a newspaper could publish by tying it to its price. The Supreme Court struck this down as unconstitutional, holding that such a measure curtailed both the dissemination of news and the circulation of newspapers. It affirmed that the freedom to publish any number of pages and to reach as many readers as possible is an essential component of the right to free speech under Article 19(1)(a). The same logic extends to other forms of expression. For instance, a stand-up comedian must earn a livelihood to pay for performance venues. But the fact that speech is commercial, or perceived to be driven by profit, cannot in itself justify regulation. In today’s digital age, virtually all online speech is, in one way or another, monetised.

Jay Vinayak Ojha: It is somewhat surprising that this case is being examined through the lens of commercial speech, given that the Supreme Court’s jurisprudence has consistently recognised that even commercial speech falls within the ambit of Article 19(1)(a). For instance, in Tata Press v. Mahanagar Telephone Nigam Limited (1995), the court held that commercial speech could not be denied constitutional protection merely because it was issued by business entities. The judgment acknowledged that commercial advertisements advance the public interest, as they disseminate information in a “democratic economy”. Moreover, the speech of comedians, journalists, or satirists has never traditionally been categorised as commercial speech. So far, judicial recognition of commercial speech has largely been confined to advertisements and newspaper publications.

Does the Supreme Court’s polyvocality (divergent views expressed by coordinate Benches) inevitably lead to inconsistent precedents?

Apar Gupta: A polyvocal court does not detract from its status as a court of record, which obliges it to follow the law laid down in earlier decisions. Even when a precedent is inapplicable to a new fact situation or requires incremental modification, its essence remains intact. Judges may make divergent observations during hearings, but these do not necessarily translate into binding orders. However, what is troubling in this case is that the court has directed the executive to frame regulations. Such regulations would carry not only the ordinary presumption of constitutionality but also reinforced legitimacy, having been crafted at the court’s own behest. This court-mandated exercise blurs institutional boundaries and renders any future constitutional challenge doubly difficult.

Jay Vinayak Ojha: In common law systems like India, the polyvocality of courts has long been both a defining feature and a matter of debate. The dichotomy between legal certainty and the development of law through individual judicial perspectives has always been contentious. However, we should not conflate the polyvocal nature of courts with the problem of coordinate Benches issuing conflicting judgments. When a Bench of equal strength delivers a ruling that departs from an earlier coordinate Bench, it is a breach of judicial discipline. In such cases, the only proper course is to refer the matter to a larger Bench.

What safeguards should these regulations embody to prevent misuse?

Jay Vinayak Ojha: Safeguards must begin with strong review mechanisms. The regulations should also reflect a clear respect for constitutional values of free speech, and that ethos must extend to those charged with enforcing them. Equally important is meaningful stakeholder consultation, which must not be confined to groups favouring restrictions while excluding those most affected.

Apar Gupta: The court’s order states that all stakeholders will be invited to frame these regulations, but it neither specifies who those stakeholders are nor how they will be consulted. Where regulations have a broad public impact, consultation must go beyond a narrow set of stakeholders and extend to the public at large. Moreover, the existing takedown regime under Section 69A of the IT Act and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, is already opaque. Aggrieved individuals are often not given notice before their content is removed. Such opacity in takedown orders, censorship, and website blocking has become a recurring feature of India’s regulatory landscape. These deficiencies must be addressed in the new regulations.

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