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Divyanjali Mishra,
Maharashtra National Law University Aurangabad
I. Introduction
The fundamental right to speech and expression, which is guaranteed under Article 19 of the Constitution of India, is one of the most celebrated rights of all. However, there are various boundaries within which this right can be exercised. Previously, this stretch was restricted to newspapers, written material, etc., but with the advent of technology, its ambit has expanded to the digital world too. India has a rapidly growing online population and active social media users. This increasing social media use also increases the potential for different problems arising due to social media content. Due to this, there is a need for social media content regulations. This research paper is aimed at exploring the different intricacies that exist between technology, government, and free speech. It aims to clarify the subtleties of social media censorship laws, their effect and consequences on individual liberties, and democratic setup[1].
Internet penetration has increased to a great extent in recent years. This is due to the increasing smartphone use and reasonably priced data plans that are available. Due to this extraordinary level of connection, users are able to access a wide range of information and the perspectives of different people around the globe. Citizens are now better equipped to interact with people and participate in public conversations. However, all that glitters is not gold; this praiseworthy technology also carries various disadvantages and often gets turned into a battle field for varying viewpoints, false information, misinformation, and cyberbullying. Due to this increasing concern, the Indian government has started regulating digital content and social media platforms. At times, due to this misinformation, even national security is at stake, and so to strike a balance between free speech, national security, and public safety, the government introduced various regulations. One of the major steps taken by the government to address this issue is the introduction of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules[2], 2021, which make social media intermediaries responsible for the material posted or shared on their networks. However, these restrictions raised various questions and controversies. Major contentions were related to the extent to which the government is going to interfere with online speech and the tussle between individual rights in the digital era. Opponents are of the view that the rules have the potential to restrict freedom of speech, silence criticism, and restrict the divergent views and voices in public life. This paper navigates the way in which technology, legislation, and social media censorship interact to negotiate the complexity of social media censorship in India. The challenges posed by misinformation and hate speech and their implications for individual freedom are also discussed.
India stands at a critical juncture in its digital journey. Safeguarding the public interest while upholding the principles of free speech is a massive task that the government has to fulfill. The restrictions that are being imposed must be reasonable so as to qualify for the test of reasonability[3]. Arbitrariness in the restrictions makes the particular rule redundant. India needs to find a way towards a more inclusive, resilient, and rights-respecting digital ecosystem. Another aim of this paper is to shed light on the fundamental mechanisms influencing the regulation of online content, the difficulties presented by hate speech and disinformation, and the consequences for individual liberties and democratic government from a multidisciplinary perspective. At this digital turning point, where India stands, it is crucial for it to strike a balance between protecting the right to free speech and preserving public dialogue.
I.I. Objective(s) of the study
The objectives of this study are as follows:
To understand what is social media censorship.
To analyze social media censorship vis-à-vis fundamental rights under Article 19(1)(a).
To understand the role of social media censorship in a democracy like India.
I.II. Significance of the Study
In today’s world, when most of the information is transferred through social media, it is important for us to understand the implications of posting certain kinds of material and what actually constitutes social media censorship. Negligence of law is never pardoned, and so understanding the concept of censorship becomes a legal necessity. Social media censorship versus the fundamental right to speech and expression has become a hot topic. Many condemned the government when the new information technology rules of 2021 were introduced as being stringent and also in a way attacking the fundamental right of free speech and expression of the people. However, the government has always taken its defense. This tussle between social media censorship and fundamental rights is an evergreen topic. And hence, this paper is there to discuss the various nuances of the same.
I.III. Literature review
There is a plethora of resources that discuss social media censorship regulations. However, in this paper, our sole focus will be on social media censorship in India. Wherein, some papers have discussed social media censorships and information technology rules 2021 through the lens of fundamental rights (Siwal Ashwini, 2022)[4] [4], and others have talked about how it becomes difficult for the user to identify whether the news that is being perceived and read is true or not (Ravinder Kaur, Aasita Bali, and Pratik Desai, 2019)[5] [5]. And a comparative study of the OTT platform and censorship in India has also been done (Rahul M., Dr. S. Dinesh Babu, 2021)[6] [6]. Various pieces of literature commenting on censorship are available. To further understand this concept, the researcher is conducting the study, based on which it will be decided whether the hypothesis is true or not.
I.IV. Research Methodology
The researcher has used the doctrinal method to complete the research. The researcher has rigorously analyzed the available resources—legal articles, case laws, legislation, and other resources—to reach a conclusion and analyze whether the hypothesis is true or not.
I.V. Hypotheses
The researcher will be working upon the following hypothesis and will analyze whether the hypotheses are true or not:
Social media censorship is not against the fundamental right guaranteed under Article 19(1)(a).
Social media censorship is important in a democracy like India.
II. Understanding Social Media Censorship
In this era of the digital revolution, social media platforms are the main means of national as well as international communication. This mass-level communication also exposes us to the threat of the misuse of this platform in various ways. In such a scenario, social media censorship comes into play. However, understanding what social media censorship actually means before further discussing its advantages and disadvantages becomes highly crucial. Social media censorship means controlling what is being posted or propagated on social media platforms with the aim of avoiding any communal tension, hatred, misinformation, or threat. Social media platforms themselves have significant power to control what is posted online, and additionally, the government also imposes certain restrictions on it. However, the easier this sounds, the more complex its implementation and working. There is huge difficulty and complexity in social media censorship. The algorithms used, automatic filters, and community norms—all these are ideas of social media censorship only. They shape the digital terrain by amplifying some voices and stifling others. However, it is frequently difficult to distinguish between censorship and moderation, which raises concerns about responsibility, openness, and the defense of civil liberties[7].
The main aim behind limiting the content is to promote public harmony and avoid any kind of hatred and chaos. This is the main contention that the promoters of censorship make. On the other hand, there are various who oppose such actions by the government because it may lead to restrictions over free speech, saturation of one kind of idea that can also be at times politically motivated, and misuse of the power of control that is given in the hands of the executors. A way between maintaining a secure online environment and respecting the ideas of free speech and intellectual diversity is difficult. Then again, global standardized censorship rules governing different social media platforms are difficult to form, mainly due to varying cultural norms and legal frameworks across different countries. This makes it difficult for social media platforms to enforce uniform standards because such standards may be acceptable in one nation or banned or offensive in another. There is a practice known as “geo-blocking,” in which content is blocked according to the user’s location, which highlights how difficult it is to navigate the vast global digital landscape. However, this creates a problem of disproportionate suppression of the voices and opinions of underprivileged groups. The digital divide exacerbates these disparities by reinforcing the existing power structures and amplifying the voices of the wealthy. Not only must the architecture of social media platforms be rethought, but long-standing oppressive structures in society at large must be challenged in order to solve these discrepancies. Due to disagreements over the power and content moderation practices of digital corporations, the subject of social media censorship has drawn more attention in recent years. There have been demands for greater accountability, openness, and
Yet this task of effective policymaking remains a formidable one. It requires collaboration between various stakeholders, governments, and society. There is a need for an interdisciplinary and nuanced approach to understanding social media censorship. Scholars, policymakers, and activists must engage in dialogues to unravel the complexities of online expression, interrogate the underlying power dynamics, and chart a course towards a more equitable digital future. By fostering a culture of critical inquiry and democratic deliberation, we can navigate the complexities of social media censorship and uphold the principles of free expression in the digital age.
Article 19(1)(a) of the Indian Constitution guarantees the fundamental right to freedom of speech and expression. Various contentions are raised that social media censorship in India violates this provision. A pillar of Indian democracy is Article 19(1)(a), which upholds citizens’ freedom to voice their beliefs without worrying about censorship or interference from the government. However, under Article 19(2) of the Constitution, the government may impose reasonable restrictions on the right to free speech and expression if doing so would serve India’s sovereignty and integrity, national security, friendly relations with other countries, public order, decency, or morality, or if it would result in contempt of court, defamation, or incitement to an offense[9]. Social media censorship in India often arises in the context of addressing concerns related to national security, public order, and the prevention of hate speech, fake news, and incitement to violence[10]. Government regulations, such as the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, aim to regulate social media platforms and digital news organizations to ensure compliance with local laws and to curb the dissemination of harmful content. While these regulations are intended to uphold public safety and security, they have been criticized for their potential to restrict free speech and expression. Critics argue that vague and broad provisions in the rules grant excessive powers to the government to censor online content arbitrarily, thereby undermining the principles of freedom of speech and expression[11].
Opponents contend that the regulations’ ambiguous and expansive language gives the government undue authority to control internet content at will, compromising fundamental rights to free speech and expression. Concerns have also been expressed over the lack of accountability and transparency in content moderation procedures due to social media censorship in India. Allegations of bias and selective censorship have arisen from platforms being accused of favoring some voices or opinions over others in particular situations. Maintaining the values of free speech and expression while safeguarding public safety must be balanced while negotiating the conflict between social media censorship and Article 19(1)(a) of the Indian Constitution. Any limitations placed on social media content must be open, judicially reviewed, and strictly limited in order to guarantee that they are appropriate and required in a democracy.
Ultimately, the evolution of social media censorship in India will continue to be shaped by ongoing debates surrounding the interpretation and application of constitutional principles, the role of technology platforms in regulating online speech, and the broader socio-political context in which these discussions unfold. As India grapples with these complexities, it must remain committed to safeguarding the rights and liberties enshrined in its Constitution while addressing the challenges posed by the digital age.
IV.India and Social media censorship regulations[12]
With the huge population using social media and other online platforms in India, there is a need for various laws to control the flow of information. The aim of this is public harmony.
The censorship process is performed only by the concerned authorities. In India, there are various legislations that directly or indirectly govern censorship, like the Code of Criminal Procedure, the Indian Penal Code, the Central Board of Film Certification, the Press Council of India, the Cinematograph Act of 1952, the Cable Television Act, the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules of 2021, etc. Section 499–502 of the Indian Penal Code (IPC) deals with the offense of defamation. Hence, anyone defaming a person, even virtually, can be punished under the IPC. Under the Code for Criminal Procedure[13] [1], provisions related to the forfeiture of certain content and publications are mentioned. There is a statutory body that is established under the Cinematography Act, 1952, called the Central Bureau of Film Certification (CBFC), which regulates the content of films. Various categories are made so that the film is perceived by the correct audience. U (unrestricted exhibition), UA (restricted only for children below 12 years of age), A (permitted to adults), and S (specified class of persons only) are such categories. Another watchdog of content over media is the Press Council of India. It is a statutory and quasi-judicial body that regulates the content of print media. The content that is broadcast on television is controlled under the Cable Television Networks Act. Its function is more or less similar to CBFC. Then come our recent information technology rules of 2021, with the aim of regulating not only social media content but also the content of OTT and messaging apps (like WhatsApp).
While the aim of the legislation makers was always to promote public harmony, all these rules have generated discussions and disagreements, with detractors claiming that they may restrict free expression and jeopardize user privacy as the new rules are imposing restrictions even over messaging apps. The regulations’ ambiguous and wide-ranging clauses, which give the government considerable authority to restrict internet content, have drawn criticism. Whenever a particular social media site is unable to comply with the guidelines of the government, the government ends up sending notices to them and threatening them with possible legal action.
However, one needs to understand that an unregulated site can pose a greater challenge not only to the government but also to the public at large. Unrestricted data flow will create chaos, confusion, hatred, misinformation flow, and possible legal injury to people through defamatory posts, etc. Considering the huge and diverse Indian population, where people of various ethnicities and religions live together, there is a high possibility of communal riots if such content is posted to incite hatred among people. Leaving these platforms unattended and without any restrictions can be highly dangerous. Also, customer data selling is yet another problem that will arise.
V.Conclusion
The researcher has reached the conclusion after analyzing all the aspects of social media censorship that both hypotheses are true. Social media censorship is not a violation of the fundamental right under Article 19(1)(a); rather, it comes under the ambit of reasonable restrictions under Article 19(2), and such restrictions are necessary for a democracy like India with a divergent population. The conflict between the right to free speech and social media censorship is a complex issue, but there is a need to strike a balance between the two. The content on social media can’t be kept unwatched because that will create chaos. Hence, the need for such balance is a need of the hour. Government and other stakeholder collaborations can certainly meet this purpose. Framing such laws and rules where the power is not restricted to one hand but rather a ground for deliberation must exist. This will ensure individual as well as public interest at large. Finding a balance between maintaining a secure online environment and respecting free speech and intellectual diversity is challenging due to varying cultural norms and legal frameworks across different countries. The global aspect of social media platforms exacerbates the problem of censorship, as communication considered acceptable in one nation may be offensive or banned in another. The digital divide further complicates the issue, as underprivileged groups often experience disproportionate suppression of their voices and viewpoints due to internet censorship. To address these disparities, it is necessary to challenge long-standing oppressive systems and rethink the architecture of social media platforms.
India has been exploring and enforcing social media censorship laws to address issues such as hate speech, disinformation, and hazardous content dissemination. The Indian government has implemented various policies to control social media sites and ensure local laws are followed. In conclusion, understanding social media censorship requires a nuanced and interdisciplinary approach, involving scholars, activists, and policymakers to navigate the complexities of online expression and uphold the principles of free expression in the digital age.
[1] Shankar, Ravi, Ahmad, Tabrez, Academic Journal, Information Technology Laws: Mapping the Evolution and Impact of Social Media Regulation in India, Desidoc Journal of Library & Information Technology, 2021, Vol 41, Issue 4, p295,
[2] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, https://www.meity.gov.in/writereaddata/files/Revised-IT-Rules-2021-proposed-amended.pdf.
[3] Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118.
[4] Siwal Ashwini, Social Media Platform Regulation in India – A Special Reference to The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (April 4,2022)https://library.oapen.org/bitstream/handle/20.500.12657/58180/external_content.pdf?sequence=1#page=215.
[5] Ravinder Kaur, Accountability of Social-Media: Laws, Censorship and Social Accountability, https://ijde.puchd.ac.in/issues/ijde-vol-xiii.pdf#page=61.
[6] Rahul M, Dr. S. Dinesh Babu, Annals of the Romanian Society for Cell Biology, A Comparative Study on Ott Platform Censorship and Policies in India (2021), http://annalsofrscb.ro/index.php/journal/article/view/7578.
[7] Katitza Rodriguez, Sasha Mathew, Christoph Schmon, Electronic Frontier Foundation, India’s Strict Rules For Online Intermediaries Undermine Freedom of Expression (April 7, 2021), https://www.eff.org/deeplinks/2021/04/indias-strict-rules-online-intermediaries-undermine-freedom-expression.
[8] Constitution of India 1950, art. § 19.
[9] Ramji Lal Modi v. State of UP, AIR 1957 SC 620.
[10] K.D. Gaur, Constitutional Rights and Freedom of Media in India, Journal of the Indian Law Institute (1994), https://www.jstor.org/stable/43952367.
[11] Kulesza J., Public Administration and Information Technology, Social Media Censorship v. State Responsibility for Human Rights Violations (2014), https://doi.org/10.1007/978-3-319-04666-2_15.
[12] Censorship Regime in India, (Sept. 12, 2022), https://www.drishtiias.com/to-the-points/Paper2/censorship-regime-in-india.
[13] Code of Criminal Procedure 1974, sec.§ 95.
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