Will SC's push for online content rules bring clarity or stifle free speech?

Mint

5 days ago

The spotlight has returned to the limits of free speech for content creators in India, as the Supreme Court recently asked the government to frame a set of guidelines to curb obscenity and vulgarity in online content without curtailing freedom of expression.
Multiple benches of the court, while hearing different cases on 15 July involving comedians and influencers, stressed the need for clear guidelines to curb objectionable content while protecting Constitutional rights.
The apex court's directive has left content creators divided. While some welcome the move, hoping it will define clear boundaries for permissible online behaviour and reduce legal uncertainties and arbitrary measures, others fear it could threaten their creative freedom and lead to self-censorship.
'I'm open to guidelines that promote responsible content creation without stifling creative expression. As a roast comedy content creator, I already self-censor to avoid offence, but clarity on what's acceptable would help," said Shivamsingh Rajput, a Surat-based YouTuber who has close to 10.5 million subscribers across his five YouTube channels.
'A content classification system would be great. It would let audiences choose what they watch and take the pressure off creators. Dark humour has its audience worldwide and I believe India could benefit from a more open approach. This would allow our content economy to grow and evolve," Rajput added.
Rohan Cariappa, a Bangalore-based creator who creates short comedy skits on Instagram and content about India's growing hip-hop and rap culture on YouTube, expresses skepticism on executing such guidelines. He has close to 500,000 followers across platforms.
'The idea of having a set of guidelines for creators doesn't sound bad to me, but the real problem lies in the execution. With the kind of population and the number of creators we have in this country, it is really difficult to fast-track anything," Cariappa highlighted, adding that as per the latest data, India is home to over 8 million active content creators.
'I also fear that such rules can be misused to arm-twist creators with different ideologies and affinities, be they religious, political, or any other kind. I have personally faced this when a comedy video of mine attracted a legal notice last year after a few complaints and my phone was confiscated only for the case to be quashed by the court later. People have also tended to try to pull down creators who have grown very fast. So, as much as the proposal sounds good, I am unsure whether it is feasible given the size of our community and country," Cariappa further added.
The influencer marketing industry in India is expected to grow to ₹3,375 crore in 2026 from ₹2,344 crore last year, as per EY data reported by Mint earlier.
The fresh debate on the creation of such guidelines for creators began with India's Got Latent controversy, where Cure SMA India Foundation accused five stand-up comedians, including Samay Raina, of making insensitive remarks about persons with disabilities.
While hearing a plea, Justice Surya Kant verbally asked Attorney General R. Venkataramani to draft guidelines in consultation with stakeholders to ensure they align with Constitutional principles.
'What we would like is guidelines in conformity with Constitutional principles, balancing freedom and the limits of that freedom where rights and duties start. We want it to be comprehensive and debated openly," remarked Justice Kant.
Justice Kant clarified that Article 21 (right to live with human dignity) of Indian Constitution overrides Article 19 (freedom of speech), especially in cases involving insensitive comments against vulnerable groups.
On the same day, another bench of Justices B.V. Nagarathna and K.V. Vishwanathan discussed ways to curb 'divisive tendencies" on social media while hearing West Bengal-based Wazahat Khan's plea to club FIRs against him for posts on Hindu deities. The bench called for detailed deliberations to frame guidelines that balance objectionable content with Constitutional rights.
Meanwhile, a third bench of Justices Sudhanshu Dhulia and Aravind Kumar expressed concern over the tendency of citizens to post 'anything and everything" online while hearing cartoonist Hemant Malviya's plea for protection against a case filed for posting a 'revolting" cartoon on Prime Minister Narendra Modi.
'What is happening today is people say and write all kinds of things without caring about the language they use online and on their shows," Justice Dhulia remarked.
Mint spoke to lawyers practising technology law in India's top courts. They noted that the court's discussions and the government's plan to bring new rules align with existing laws like the Information Technology Act, 2000. However, they cautioned that new rules should not create vague or subjective definitions for terms like vulgarity and obscenity, as this could lead to misuse.
'The Intermediary Guidelines to follow already define such content under existing law to allow takedown. New rules shouldn't create separate or vague standards that risk curbing legitimate online expression," said Sidhant Kumar Marwah, Partner at Unum Law.
The guidelines mentioned by Marwah refer to The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 that are a set of rules that require digital intermediaries such as YouTube, X, Instagram and Facebook to respond to user grievances expeditiously and remove harmful content.
Nakul Gandhi, founding partner of NG Law Chambers, said the framework must begin by recognising that freedom of expression is deeply subjective.
'What's vulgar to one may be satire to another. The danger lies in converting personal offence into legal prohibition. Instead of rigid definitions, the law should focus on principled thresholds, such as: Does the content incite violence? Does it exploit or endanger a specific group? These are measurable parameters. But matters of taste, tone, or personal offence should remain outside the scope of legal sanction."
Lawyers also stressed the need for safeguards under new rules to prevent arbitrary takedowns by platforms.
According to Ankit Sahni, partner at Ajay Sahni & Associates, any government takedown request must have a written order with legal grounds and give creators a chance to respond. 'Transparency reports, time-bound reviews, and oversight by an independent grievance body can build trust."
Marwah from Unum Law suggested setting up an independent regulatory body manned by experts, similar to the UK's Online Safety Act, to issue takedown orders based on clear, well-defined standards.
However, legal experts warned of what overregulation can do.
'Vague or broad rules may stifle creativity, comedy, and critical commentary. Guidelines must be clear, transparent, and proportionate to protect free expression," noted Anupam Shukla, technology law and privacy practice at Pioneer Legal.
Gandhi from NG Law Chambers further cautions that 'the direction seems more cautionary than empowering for creators. Seen in that light, moves towards broad guidelines, without any defined limits, risk becoming tools against creators, especially the independent ones who don't have the backing of big platforms or studios."