Beyond the Outrage: Why India’s Push for Influencer Guidelines Needs Public Scrutiny to Protect Free Speech 

In response to a Supreme Court directive for the Ministry of Information and Broadcasting (MIB) to create guidelines regulating social media influencers following a comedy show controversy, Professor VK Tiwari has urged the ministry to hold a public consultation. He argues that such rules impact the fundamental rights of millions and must be developed through an open, multi-stakeholder process to be legitimate.

Tiwari contends that the court’s focus on penalizing “hurt sentiments” and “commercialized speech” is constitutionally precarious, as restrictions on free speech are only permitted under the specific, narrow grounds listed in Article 19(2) of the Indian Constitution, which do not include offense. He warns that treating monetized content as a lesser form of expression or enabling prior censorship would set a dangerous precedent, risking a regulatory framework where the boundaries of acceptable speech are determined by outrage rather than legal standards. The article cautions that without public consultation, the government’s response could lead to overly broad rules that suppress protected speech far beyond the original incident.

 Beyond the Outrage: Why India’s Push for Influencer Guidelines Needs Public Scrutiny to Protect Free Speech 

Meta Description: As the SC directs the MIB to draft social media influencer rules, Professor VK Tiwari’s call for public consultation is critical. We explore the constitutional tightrope between regulating harm and preserving free speech in the digital age. 

Introduction: A Directive That Could Reshape Digital Expression 

In the vast, chaotic, and vibrant arena of Indian social media, a new rulebook is being quietly drafted. The impetus came from the Supreme Court: a directive to the Ministry of Information and Broadcasting (MIB) to formulate guidelines for social media influencers following a controversy around offensive jokes on a comedy show. To the casual observer, it might seem like a reasonable step towards accountability. But as Professor VK Tiwari of NUJS Kolkata argues in a compelling letter to the MIB, the process of creating these rules is as important as the rules themselves. His urgent plea is for public consultation—a democratic exercise he believes is non-negotiable when the fundamental rights of millions are at stake. 

This isn’t just about regulating a few rogue comedians; it’s about defining the boundaries of acceptable speech for an entire digital economy. The court’s observation that influencers “commercialise free speech” has placed a target on monetised content, potentially creating a second-class category of speech that is subject to heightened scrutiny. The danger, as Tiwari and other free speech advocates warn, is that in our rush to police offence, we may inadvertently construct a system of prior restraint and censorship that stifles dissent, satire, and unpopular opinions—the very lifeblood of a healthy democracy. 

The Genesis of a Legal Firestorm: More Than Just a Bad Joke 

The Supreme Court’s directive on August 25th didn’t emerge in a vacuum. It was born from a specific petition concerning India’s Got Latent, a YouTube comedy show where comedians, including popular streamer Samay Raina, made jokes deemed offensive to persons with disabilities. The court rightly condemned the content and mandated an apology from the comedians. 

However, the court’s remedy extended far beyond the individual case. It instructed the MIB to prepare broad guidelines for all social media influencers, consulting with industry bodies like the News Broadcasters and Digital Association (NBDA). This is where a case-specific correction morphs into a sweeping regulatory exercise. By tasking the government with creating a blanket “social media code,” the court has initiated a process that could fundamentally alter India’s digital landscape. 

Professor Tiwari, an academic with a disability, is uniquely positioned to comment. He isn’t dismissing the hurt caused by the content; rather, he is arguing for a response that is constitutionally sound, proportionate, and crafted through inclusive dialogue, not behind closed doors with select stakeholders. 

The Constitutional Tightrope: Article 19(2) and the Peril of “Hurt Sentiments” 

At the heart of Tiwari’s argument is a strict, legalistic interpretation of the Indian Constitution. He anchors his case in Article 19(1)(a), which guarantees the fundamental right to freedom of speech and expression, and its necessary counterpart, Article 19(2), which outlines the only grounds on which the state can impose “reasonable restrictions” on this right. 

These grounds are specific and narrow: 

• Sovereignty and integrity of India 

• Security of the State 

• Friendly relations with foreign States 

• Public order 

• Decency or morality 

• Contempt of court 

• Defamation 

• Incitement to an offence 

Noticeably absent from this list is “hurt sentiments.” Tiwari’s letter powerfully asserts that feeling offended or hurt cannot be a lawful basis for restricting speech. This is a crucial distinction. A joke may be in poor taste, crass, and deeply offensive to a community, but unless it incites violence (a threat to public order), is defamatory, or falls squarely within another category under 19(2), it remains protected speech. 

The Supreme Court’s suggestion to include “penalties for misconduct” that hurts sentiments, therefore, ventures into constitutionally murky territory. It risks creating a system where the subjective, and often politically weaponised, feeling of being “hurt” becomes a tool for censorship. 

The Slippery Slope of “Commercial Speech” and Prior Restraint 

The court’s characterisation of influencer content as “commercialised free speech” is another red flag for legal scholars. Tiwari rightly points out that commercial speech is protected speech in India. From newspaper advertisements to influencer brand deals, the Supreme Court has historically recognised that economic expression is intertwined with the right to free trade and profession (Article 19(1)(g)). 

To treat monetised YouTube videos, Instagram posts, or sponsored tweets as a lesser form of expression subject to harsher rules would be a dramatic and dangerous departure from precedent. It would create a two-tiered system where a citizen journalist on YouTube could be penalised for content that a traditional newspaper publisher could legally air. 

Furthermore, Tiwari warns against any form of prior restraint—censoring content before it is even published. In democratic jurisprudence, prior restraint is considered the most severe form of censorship and is only justified in the most extreme circumstances, such as an imminent threat to national security. Using it to pre-emptively block “unpopular views” or potentially offensive content would be a constitutional travesty, replacing legal standards with the whims of the most outraged voices. 

The Cure for Bad Speech is More Speech: Why Consultation is Non-Negotiable 

This brings us to Professor Tiwari’s central demand: a broad, transparent, and multi-stakeholder public consultation. 

Why is this so critical? 

• Legitimacy and Ownership: A rulebook imposed from the top down will lack legitimacy. Creators, activists, legal experts, and citizens from diverse backgrounds must have a seat at the table. Their lived experience and professional expertise are invaluable. A process that only involves government officials and a select industry body (NBDA) is inherently exclusionary and risks being captured by powerful interests. 

• Avoiding Unintended Consequences: Well-intentioned but poorly drafted rules can have a chilling effect. A vague prohibition on “obscene” or “hurtful” content could be misused to target LGBTQ+ voices, political satire, or artistic expression. Public consultation acts as a stress test, identifying these vague areas and potential for misuse before they become law. 

• Upholding Due Process: Tiwari emphasises that any regulatory framework must adhere to principles of natural justice. This includes clear notice of violations, access to official orders, a meaningful opportunity to be heard, and the right to an independent appellate review. A closed-door drafting process is unlikely to bake these essential safeguards into its core. 

The Bigger Picture: The Predictable Cycle of Outrage and Censorship 

As noted by MediaNama’s Nikhil Pahwa, the India’s Got Latent controversy follows a worn-out but effective pattern that systematically erodes free speech: 

• Amplification: Offensive content is identified and amplified, often by political actors and sensationalist media, creating a moral panic. 

• Censorship: Under pressure, platforms capitulate and remove the content (as YouTube did with the IGL episode), setting a precedent for extra-legal takedowns. 

• Regulation: The incident is used as a justification for new, broad regulations that restrict speech far beyond the original incident. 

The easiest answer, as the government’s former Attorney General Mukul Rohatgi once stated regarding online porn, is simply “not watching it.” Empowerment, media literacy, and counterspeech are often more effective tools than blunt censorship. If content is truly harmful and illegal under existing laws (like the IPC), those laws should be enforced. We don’t need a new, parallel system for the digital world that operates on a lower threshold of what constitutes an offence. 

Conclusion: Safeguarding the Digital Town Square 

The Supreme Court’s concern is understandable. The power and reach of social media influencers are undeniable, and with that power comes responsibility. However, the remedy must not be worse than the disease. In striving to police the outskirts of acceptable speech, we must be careful not to burn down the entire town square. 

Professor VK Tiwari’s call for public consultation is not an attempt to stall necessary regulation; it is a plea for wiser, more constitutional, and more democratic regulation. It is a call to ensure that the rules governing India’s digital future are written not in reaction to the loudest cry of outrage, but through the collective, reasoned wisdom of the people they are meant to serve. The MIB would do well to listen. The freedom of expression of millions of Indians depends on it.