In a significant move to address the potential harms of viral misinformation, the Supreme Court of India has instructed the Ministry of Information and Broadcasting to formulate a draft framework for the pre-screening of user-generated content on social media platforms. The bench, led by Chief Justice of India Surya Kant and comprising Justice Joymalya Bagchi, expressed concern over the rapid spread of content that can cause social upheaval before it is taken down.
Balancing Free Speech and Social Harmony
The court strongly emphasized that the right to freedom of speech is a regulated right and not absolute, drawing a distinction from the First Amendment in the United States. The bench noted that existing self-regulatory codes employed by platforms are insufficient. "If anti-national content is uploaded on social media, by the time the government notices it and orders its takedown, a day or two may pass," the court observed. "During this period, it would go viral and cause damage to, or unrest in, society."
The court was clear that the objective is not to throttle free speech but to establish a reasonable preventive mechanism. It highlighted the potential of Artificial Intelligence (AI) to curate content and sieve out problematic material before it is published online, pointing out a current statutory vacuum in this area.
A Heated Debate on Defining 'Anti-National' Content
The proceedings witnessed a spirited exchange when advocate Prashant Bhushan challenged the subjective use of the term anti-national. He argued that the definition is often applied selectively by authorities. To illustrate his point, Bhushan posed hypothetical questions about discussing the accession of Sikkim or China's territorial claims on social media, questioning whether such viewpoints would be deemed anti-national.
Solicitor General Tushar Mehta strongly objected to this line of questioning, stating that Bhushan should not "instigate secession" in a judicial proceeding focused on curbing the upload of obscene and anti-national content. The CJI countered by citing a specific case from Operation Sindoor, where an individual posted a pro-Pakistan video that went viral almost instantly, despite being deleted within an hour.
The Path Forward: An Autonomous Body and Public Consultation
The bench dismissed the claims from broadcaster and OTT associations that self-regulation is adequate. "If the self-regulatory code is working, why is such content getting posted on social media?" the court questioned. It proposed that the power to regulate should not rest with the government or the portals themselves, but with an autonomous body.
"Speaking against the government is not anti-national activity. That is a precious democratic right," the bench affirmed, clarifying that the core issue is specific viral content that causes damage before it can be removed.
The court has given the I&B Ministry a four-week deadline to prepare the draft mechanism. The government must then publicize the draft to seek suggestions and objections from the public, domain experts, jurists, and media personnel. The Supreme Court will examine the issue again after this consultative process is complete.
