Beyond Observations: Why social media needs statutory regulation

This makes it evident that judicial pronouncements have the power to create laws, if not directly legislating, at least laying the groundwork for it.

The apex court, on several occasions, has made pertinent observations on important policy matters and constitutional issues; however, it stopped short of shaping them in the form of judgments that could have led to legislation. 

In doing so, it leaves some important issues open to interpretation, especially as to whether the observation made in that particular context should be taken as serious policy guidelines or merely an opinion of the judiciary. 

One such area of ambiguity is the freedom of speech in the context of social media.

Horizontality of fundamental rights needed?

The Supreme Court bench, consisting of Justice BV Nagarathna and KV Viswanathan, on July 14, said the right to free speech was increasingly being abused, especially on social media, and called for self-restraint and regulation. The bench was hearing a petition by Kolkata-based Wazahat Khan seeking the consolidation of first information reports (FIR) registered against him in Assam, Maharashtra, Delhi and Haryana over his social media posts.

The bench called for framing guidelines to control “divisive tendencies” on virtual platforms. Also, it raised an important question of “horizontality” of the fundamental rights, which means enforcement of rights against persons other than the State or its instrumentalities. 

Similarly, on July 15, in two separate cases, two benches of the apex court heard two separate matters related to the same issue. In the first instance, the bench of Justices Sudhanshu Dhulia and Aravind Kumar granted interim protection to Indore-based cartoonist Hemant Malviya over a social media post allegedly depicting the Rashtriya Swayamsevak Sangh (RSS) and Prime Minister (PM) Narendra Modi in an undignified manner.

In the other case, a bench of Justices Suryakant and Joymala Bagchi, during the hearing of the matter related to the comedian Samay Raina, instructed Attorney General R Venkataramani, representing the Centre, to draft social media guidelines that balance freedom of speech and expression with the rights and responsibilities of others.

Advent of social media has introduced a new dimension to free speech

Over the past decade, social media has emerged as a powerful platform for expressing political views. In the absence of institutional checks and regulatory oversight, users often voice not only their opinions but also their biases and prejudices, many of which are directed against the state or specific social groups. In such a scenario, those at the receiving end of these remarks may take offence. While, in most cases, such offensive content is countered with equally strong reactions from the public, there are instances where the state intervenes, especially when the discourse on social media crosses certain lines. This raises complex questions about the limits of free expression in digital spaces and the extent to which the state should act in response.

When even adult choices—such as alcohol consumption or sexual preferences—are not left completely unregulated, expecting free speech to exist without any form of regulation is naïve and even undesirable. Especially when the Constitution itself provides for reasonable restrictions. 

The real challenge lies not in whether speech can be regulated, but how, and to what extent, such regulation should be imposed. While judicial observations have consistently called for restraint and balance, the absence of clear, well-defined guidelines backed by legislation leaves room for ambiguity and misinterpretation. This legal vacuum risks either overreach or under-enforcement.

The recent stance taken by the apex court in various cases related to the exercise of free speech on social media has been strict. It is seen as tilting towards regulation to tame unfettered freedom of speech. The reaction of the apex court calling for greater restraint should be seen in a larger context and not as an attempt to scuttle free speech. The fact is that hundreds of cases are being registered against people for ‘defamatory’ and abusive posts every day. In the absence of proper guidelines, the police are exercising wide discretion in registering such cases—a discretion that, in most instances, lacks sound legal reasoning and often appears outright arbitrary.

The complaints are often slipping into a domain of being an instrument of harassment, as multiple FIRs are being registered against accused persons. In most of these cases, accused persons are moving the Supreme Court under Article 32 of the Indian Constitution and to the High Court under Article 226 to get effective and speedy relief. But this is leading to clogging the higher judiciary with such cases.

Justice Nagarathna, while hearing Wazahat Khan’s plea, observed how such matters were clogging the legal system and also questioned why citizens could not exercise self-restraint while expressing themselves on social media.

“This is happening in the country. There is no restraint; freedom of speech and expression is a very, very important freedom and a fundamental right. If there is abuse of that freedom leading to litigation and clogging of courts. There are also other criminal cases the police can attend to instead of chasing these kinds of cases. What is the solution to this? We are not from the point of view of the state, we are asking from the point of view of citizens.”

Case for regulating use of social media

The debate around free speech, its scope, and reasonable restrictions is as old as the Indian Constitution itself, so much so that it led to the very first constitutional amendment within the first year of the Republic. However, recent cases involving the alleged misuse of social media platforms have brought two critical issues to the forefront.

There is an urgent need to establish clear and enforceable guidelines governing the use of social media, so as to reduce arbitrariness in how such cases are handled. In the absence of a legislative framework, relying merely on judicial observations serves little purpose. As the Supreme Court has rightly noted in one of its rulings: "It is trite to say that a formal opinion of a judicial institution is reflected through its judgments and orders, and not its oral observations during the hearing."