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The Supreme Court’s directive to the government to formulate a framework for regulation of free speech on social media is problematic because such regulations may become curbs. The Court’s view that the right to free speech should be exercised with due respect for the right to dignity of all communities and in accordance with obligations to society is unexceptionable. A citizen’s rights and obligations are mutually reinforcing. But the direction to frame guidelines enables the government to set limits for free speech. This is particularly so in light of the distinction the Court made between free speech and commercial speech and its observation that those who indulge in commercial speech, such as social media influencers, podcasters, etc., cannot claim protection under the right to free speech. It is a contentious view that may be misused by the government.
The Court issued the directive in a case regarding offensive remarks made by comedians on social media against persons with disabilities. It was right to point out that marginalised communities should not be ridiculed or subjected to offensive humour. But the Constitution does not mention “commercial content” as among exceptions from freedom of speech and expression. There is no definition of commercial speech either. To entrust the government with powers to define it and to prescribe the boundaries of free speech based on that definition is risky. Humour can be different in different personal, social, and cultural situations – the government cannot be the authority which decides what is humour and what is not. Existing laws can be invoked when disadvantaged and marginalised communities are verbally ridiculed or insulted. It is not necessary to create a new set of guidelines that risk major restrictions on free speech.
The distinction between commercial and non-commercial speech is not always clear. Since the dividing line is vague, a law against commercial speech may end up constraining free speech and is likely to be interpreted by the police and other authorities to suit their interests. The government has in various ways tried to curb free speech. While guidelines are crucial to ensure accountability, it must be noted that exceptions in Article 19(2) already make such responsibilities clear. The Supreme Court has, through decades, expanded the scope of freedom of speech and shielded the right. It is uncharacteristic of it to ask the government to take measures to regulate free speech on unconvincing grounds. If the abuse of the right is a concern, the remedy is not in a law that curbs the very right.