Social Media, Free Speech, And Constitutional Limits - Where Do We Draw The Line
Author: LawSphereX
Category: Constitutional & Human Rights
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SOCIAL MEDIA, FREE SPEECH, AND CONSTITUTIONAL
LIMITS: WHERE DO WE DRAW THE LINE?
Sanjana S Tholoor, B.A.LL.B., Vaikunta Baliga College of Law
ABSTRACT
The Indian Constitution, guarantees to its citizens certain rights under part III of the Constitution. One among them happens to be Freedom of Speech
and Expression under article 19(1)(a). It guarantees to the citizens the freedom to express their opinion by way of writing, print, oral speech or any other ways, subject to the restrictions under article 19(2). This, by being a fundamental right, had made sure the existence of the democratic government is very much intact and staunch from its foundation. The certain restrictions attached to the freedom made sure that the right conferred is not abused or misused by the masses, contrary to the established principles of Constitution and the democratic functioning. But the real question which is to be evaluated is the extent where the line of curtailment is to be drawn, which will be in accordance with the prescribed conditions of article 19(2).
The question brings us to the current situation around the world, where certain restrictions are posed arbitrarily and unarbitrarily on the freedom of speech and expression under the Indian Constitution. This article expands over the horizons paved by article 19(1)(a), where it tries to evaluate the needs for the restrictions, with reference to the article 19(2) and with the instances which happened, and the situations where such limits may be taken as a way of exercising unnecessary censorship for the authorities imposing it. It scours through these matters through the help of analysing both of these articles, starting from its historical inception. It also goes through several judicial precedents which are very much relevant as well.
Thus, the article explores the importance of articles 19(1)(a) and 19(2) by analysing several instances in the country which make it necessary for the stricter implementation of the latter, focusing simultaneously on preventing the undermining of the spirit of constitutional supremacy through the overriding of the former.
Introduction Social media, is the most chief form of communication in this 21st century, where not having social media is regarded as one of an unnatural-events which ought to happen with anyone. Such an inalienable foundation has been created for itself, by the social media, which has made it one of the most reliable sources, where people can communicate their feelings, opinions, grievances, etc. , to the world in its crudest and most formal sense, without having the need to physically protest for the injustice. Hashtags, tags, reposts, conquer social media, and the people do circulate it within themselves, without even taking a minute from their lives to know whether they’re right or wrong.
Yes, indeed social media is a life saver in granting all the necessary essentials to a person who really wants to bring their views into the light, but at the same time, we need to ask a question to ourselves, is it too much that it surpasses the limit drawn for itself? That thought process brings us to evaluate the extent of freedom of speech and expression guaranteed to us by Article 19(1)(a) of the Indian Constitution. It is indeed right, that it has some restrictions, but at the same time, what is the real extent to which these restrictions can be imposed, which is very much necessary considering the fact that during the enactment of the Indian Constitution, social media and internet where just infants, which was nearly in its birth phase.
Therefore, times have changed, making it possible to people to vent out about their lives anywhere and everywhere possible, making it necessary to deliberate on the limits to which the freedom of speech has been and has to be allowed. What is Freedom of Speech and Expression? What are the said restrictions? Indian Constitution guarantees to every citizen freedom of speech and expression under the article 19(1)(a), subject to restrictions under the article 19(2). The restrictions can be imposed by the state on the grounds of: sovereignty and integrity of India or public order, decency or morality, defamation, contempt of court and hate speech. The restrictions should be strictly adhering to these grounds, otherwise will constitute a staunch violation of article 19(1)(a).
The freedom of speech and expression includes the right to express their opinions freely by way of mouth, writings, pictures, movies, banners, etc. It was also held by the Supreme Court that this right also includes the right to communicate, print, and advertise information. It is also included in the Universal Declaration of human rights (declared on 10th December 1948). The High Court of Tripura held that, right to post on social media is same as having the freedom to express their opinions offline. The court further held that the police should refrain from
prosecuting a civil activist who was arrested because of a social media post criticising an online campaign in support of the Citizenship Amendment Act, 2019. He warned the people through that post. Historical Foundation Article 19(1)(a) has also been subjected to various interpretations due to the scope it encompasses within itself. In a democratic country like India, which holds the supremacy of the constitution intact, its very much important for people to express their grievances so that the fundamental rights of the people will remain not violated as well as the constitutional principles will be upheld. In this 21st century, the medium has changed to social media, where the digitized version of freedom of speech and expression can be observed.
If we go through the historical basis, then we can see that freedom of speech and expression, being a cornerstone of democracy, impliedly includes freedom of press which was pronounced in the case of Romesh Thapar v. State of Madras (1950)1. It was also held that the freedom will also be subjected to reasonable restrictions under Article 19(2) on the grounds of sovereignty, public order, decency, morality defamation and incitement. On being the basis of freedom of press being laid out in this historical case, it had led to various certain interpretations with regard to expressions in the media. The digital media protection has been evolved in the case of Shreya Singhal v.
Union of India (2015)2, where the section 66A of the Information Technology Act has been struck down due to vagueness where the court found the section overly broad, and the judgement affirmed by stating that the free speech deserves the same level of protection in the internet as in-person speech to the crowd, and the restrictions must be reasonable. 3 But, as mentioned earlier, these pronouncements had been given during the time when the scale and intensity of the social media was still minimal. These days, the opportunities offered by social media has increased as well as the medium in social media, through which they can circulate their opinions, also has exacerbated widely. Therefore, there is a greater threat for people and of people in it, when someone decides to open up, based on how it affects them. People are not safe, even if their allegations are credible.
They are not safe, especially when
1 Romesh Thapar v. State of Madras, A.I.R. 1950 S.C. 124 (India); 1950 S.C.R. 594.
2 Shreya Singhal v. Union of India, (2015) 5 S.C.C. 1 (India); A.I.R. 2015 S.C. 1523.
3 Constitution of India art. 19, Indian Kanoon, https://indiankanoon.org/doc/1218090/ (last visited Nov. 30, 2025).
they are engaged in spreading misinformation, leading to the situation of collective hatred in social media, due to the failure of certain precedents such as based on pre-internet censorship (KA Abbas v. Union of India)4 to address AI based deep fakes and viral hatred scenarios. Social Media: Saviour or Commercialising Agent? Social media, is no doubt, an open space which allows people to convey the bad and good experiences in their lives. It’s the most ideal space for a whistleblower. They are somewhat convinced that their needs and the injustices they’ve faced will be cleared remedied up once they tell in the social media and their videos or posts get enough views, striking a situation of ‘being viral’ so that they get the adequate support they need.
But, isn’t it free and unbolted enough to let the wrong information and criticisms gets levelled up against an innocent person to disrupt their reputation and the peace of mind of the masses? The sole aim of social media is to get profit. Whatever the way people use it, the ultimate goal of the creators is to gather up enough wealth from its use. Therefore, as far as any information, correct or wrong travels up, it wouldn’t budge them, until and unless it has a direct consequence to their income. Therefore, there is an inherent ideology of commercialisation. They are capitalising the grievances and the worst experiences of the people. They do not do anything directly to make sure that the views get to the appropriate government. The views matter to them and thus, ultimately to the people.
Therefore, people are driven mostly to increase their views so that their point of view reaches to the extreme masses, so that they’ll benefit from the remedies, when it reaches the authorities. The righteousness of the contents and its index aren’t the matter. They are allowed to circulate freely, despite there being incessant efforts on the part of some social media platforms to regulate fake news. They have released the propaganda already, and post control mechanism, isn’t just right as it will be futile. Therefore, control over the free speech is very much mandatory, owing to the present circumstances and the social media algorithm, as it will circulate freely the contents which poses a threat to the integrity of the nation.
Contemporary Challenges; Deepfakes, Misinformation and Vulnerable Groups The year of 2024-25 has exemplified certain issues so far in the area of misinformation and defaming people, with the introduction and amplified usage of deepfakes and AI. The realistic
4 K.A. Abbas v. Union of India, A.I.R. 1971 S.C. 481 (India); (1971) 2 S.C.R. 446.
factor of AI is getting scarier day by day. the Deepfakes had led to many suicides around the country. According to McAfee 2025, 85% Indian children face cyberbullying. The cyber bullying has also led to several suicides. One of the most disturbing incidents which recently happened, was that of Priyanshu Yadav, a 16-year-old queer teen, who died in November 2023 due to homophobic comments which were beyond derogatory to him on social media. It showcases the allowance of free speech in ignorance of the feelings and impact it would pose on the people against whom it is posed, will cause. People do ignore all these factors and project on others their frustrations which makes them feel intensely insecure and sometimes, they do descend themselves into depression, thus ultimately leading to suicides.
Vulnerable groups such as queers, women, children, people from other marginalised communities are mainly targeted online due to their insecurities and vulnerabilities, which makes them a prey into the hands of these cyberbullies. It all happens due to the freedom of speech available to the citizens without considerable restrictions in this matter. 5 Misinformation is another of the extreme issues. The information emitted in the internet, devoid of prior verification, will be serving itself as a source of information to many people, especially those who doesn’t have enough time to go through the official news. During 2020, when covid-
19 was spreading rapidly, around 5,613 unique misinformation was shared in social media from
the months of March 2020 to December 2020. Another analysis showed around 11,000 fake information being circulated globally. One among several misinformation shared was that corona virus could be avoided if people drink alcohol in sanitizers. X, Instagram, Facebook, and even WhatsApp showed a vast multitude of junk information being shared as valid during those times. Several instances of death were reported following the spread of the sanitizer related false information, due to panic on the part of public due to the spread of an unknown virus. These all instances had occurred due to the existence of unregulated free speech available on internet. It had been drawn that there is an immediate regulation especially during the ongoing times due to the increase in the usage of AI for fraudulent activities, especially to defame others.
Therefore, even if there are certain regulations governed by Information Technology Act, 2000, are at place, there needs to be amendments which are to be implemented to accommodate the changing apparatus in the social media. Thus, there should be a mandatory transition from free 5 A. Singh, India’s Courts Must Hold Social Media Platforms Accountable for Hate Speech, TechPolicy. Press (2025), https://www. techpolicy. press/indias-courts-must-hold-social-media-platforms-accountable-for-hatespeech/ (last visited Nov. 30, 2025).
speech to regulated and balanced speech, owing to the protection of life and personal liberty of each and every citizen. Government Coercion and Jawboning in India: What is the limit of restrictions? Coercion and Jawboning may seem similar prima facie, but when we look closer, the difference becomes more daunting, especially on being applied to the real-life instances. Coercion, as it is obvious, refers to the act of force. But, Jawboning, indicates a persuasive activity, which includes usage of someone’s influence to persuade someone to do something. The restrictions on the free speech may be imposed due to two-fold factors: (i) to regulate the decorum of the base and protect the peace and integrity of the country. It includes saving of people and their reputation from unnecessary allegations, and (ii) to cater to the arbitrary needs of the people in authority.
Jawboning has been observed quite profusely with regards to the social media, as evident through the takedowns of several posts, comments, videos, accounts, etc. , in the name of violating the principles of the app, hate speech, as against the rules made by the government. The government entities pressurise the private entities, especially social media platforms to take some specific actions on their part, such as censoring certain contents, which has the potentiality of bringing their illegal acts and activities which are deemed to be misusing the constitutional mechanisms into light. The most foremost example is regarding the Information Technology (Intermediary Guidelines and Digital Media Ethics Code), Rules, 2021, which provides a framework for the appropriate government to remove certain contents from the social media which are deemed undesirable and harmful to the public order.
The situation openly emphasises unmitigated control over the tool of censorship. The situation rightly reveals the fact that restrictions under Article 19(2) can also be taken and interpreted vaguely to address the needs of those in power. Therefore, the question remains, what are the actual limits on the restriction of contents of social media? Is it solely on the rights vested to the government under the said article, or is it left to the discretion of the authority, by using the blanket provided under the article, by interpreting it in such a way that caters to their activities? The precedent, in Anuradha Bhasin v. Union of India (2020)6, had stated that internet shutdowns must be proportionate. The word proportionate could be twisted and taken accruing
6 Anuradha Bhasin v. Union of India, (2020) 3 S.C.C. 637 (India); 2020 SCC OnLine S.C. 172.
to their conditions. According to the case on MediaOne ban reversal (2023)7, the news channel was banned, without giving them explicit reasons for their banning. Ultimately, the ban was reversed by the Supreme Court, where the court held that national security should not be used as an excuse to circumvent the rights of citizens and the rule of law. These are some of the primary examples, where the provisions of reasonable restrictions are actively misused by the government. But the government had implemented reasonable bans such as banning certain Chinese apps, such as TikTok and other 200+ apps, under Section 69A of IT Act, citing national security, on the backdrop of the dispute in the border between India and China (violent clash in the Galwan Valley 2020). 8 The restrictions, imposed by the appropriate authority, needs to be evaluated carefully to know its inherent aim.
The restrictions can be on the basis of the ones mentioned in article 19(2), but the way it is implemented has to be evaluated. It can be to expedite the selfish needs or to reasonably protect the country and the public. Thus, the restrictions can also be drawn out of the line, depending upon the contents published and we can’t judge the contents posted entirely on the basis of the restrictions inflicted. They can be also to obstruct the flow of free speech, thus posing as a violation of article 19(1)(a). Where to Draw the Line? Proposals and Judicial Safeguards The line which is to be drawn is determined basically after 2015 on the basis of the fourpronged proportionality standard laid down by the Supreme Court in the case of Shreya Singhal v. UOI (2015).
9 The test was to test the rationality of the restrictions laid down by the government for curtailing the freedom of speech and expression. They include: • The restriction must have a legitimate aim or objective listed under article 19(2). • The measure taken by the government must be rationally connected to the objective. • There must be equally effective alternative available. • The restriction must not impose an excessive burden on the fundamental right when
7 Madhyamam Broad. Ltd. v. Union of India, 2023 SCC OnLine S.C. 366 (India).
8 Free Speech Collective, State of Press Freedom in India 2025: A Free Speech Collective Reckoner (2025), https://freespeechcollective.in/reports/fsc-reports/state-of-press-freedom-in-india-2025-a-free-speech-collectivereckoner/ (last visited Nov. 30, 2025).
9 Shreya Singhal, supra note 2, at 3.
weighed against the benefit gained. Such precedents lay down certain important guidelines to be followed while striking down the freedom of speech and expression of people. Such precedents, due to the article 142 of the constitution, has an imminent factor, which exemplifies its binding force. Therefore, the role of judiciary in such situation is very much absolute. When we are looking into the needed legislative reforms, the existence of narrow IT rules, provides scope for the loopholes to grow further. Therefore, those loopholes should be sealed and there should be the inclusion of provisions for public consultations, and judicial preapprovals for takedowns, which will strengthen the hold IT Act and other rules have with regard to social media and its functioning.
Moreover, updating of section 196 of Bharatiya Nyaya Sanhita, 2023, which criminalises promoting enmity, hatred or disharmony between different groups based on religion, race, language, caste or other grounds, is suggested. The provision’s applicability should be strictly applied more stringently in the case of propaganda trending in the social media. The social media platforms, should themselves regulate more the functioning, often holding the records of those who are engaging in criminal activities, within these platforms to promote the safety of the other users. There should be more transparent algorithms, regulative mechanisms, records of the users and their important details which should be confidential, etc.
In the societal front, there should be the promotion of digital literacy among the masses, awareness regarding the danger within the social media, and avoidance of the VPN-driven circumstances, etc. Conclusion India’s 2025 regulatory push reflects global tensions, but still tries to grasp and sustain the unique hold on Article 19’s reasonableness. There has to evolve a strict regulatory mechanism, due to the existence of cons of under and over regulation, therefore, affirming the complicatory status of social media in the present condition. In the path forward, there should be robust frameworks, which gives importance to the factors of proportionality, transparency and user agency.
The article 19(1)(a), thus exists as the guardian of the existence of democracy, at the same time being a tool for misemployment, in the social media, due to the generative privilege, which needs to be taken due care because of the fact that, it is looked on by the citizens as their source of ideal livelihood, by amplifying voices of the downtrodden.