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The Supreme Court, on Thursday, November 27, underscored the urgent need for a “neutral, independent and autonomous” regulatory body for online and user-generated content (UGC), expressing clear dissatisfaction with the existing self-regulatory mechanisms followed by digital media platforms and content creators.
A Bench of Chief Justice of India Surya Kant and Justice Joymalya Bagchi was hearing a batch of petitions, including those filed by YouTubers Ranveer Allahabadia and Ashish Chanchlani, challenging FIRs lodged in connection with allegedly obscene content aired on the show India’s Got Latent. During the hearing, the court expanded the scope of the proceedings to examine the larger issue of regulating online obscenity and pernicious content.
CJI Surya Kant expressed surprise at the absence of accountability for individual content creators. “So I create my own channel, I am not accountable to anyone... somebody has to be accountable!” the Chief Justice remarked. Solicitor General of India Tushar Mehta submitted that the problem was not limited to obscenity but extended to “perversity” in UGC uploaded on personal YouTube channels and other platforms.
Emphasising constitutional limits on speech, the Bench observed that freedom of expression, though invaluable, is not absolute. The court said, “Right to freedom of speech is very important but a regulated right… Self-regulatory codes may not work in case of UGC.” The judges noted that by the time unlawful or socially disruptive content is taken down, it often goes viral, causing irreversible harm.
The Chief Justice cautioned against reliance on self-regulatory bodies, stating, “Self-styled bodies will not help… some neutral autonomous bodies which are free from the influence of those who exploit all of this and the state also is needed as a regulatory measure.” He questioned why violations continued to recur if self-regulation was truly effective.
Justice Bagchi highlighted the challenge of response time, observing that once “scurrilous material” is uploaded, it spreads to millions before authorities can intervene. He noted that prosecution after publication amounts to a “post-occurrence penalty” and stressed the necessity of preventive checks to stop the spread of misinformation and social harm.
The Bench also addressed concerns around pre-censorship, clarifying it would not endorse any mechanism that throttles legitimate dissent. “We will not put our seal of approval on something which can gag somebody. We will only address the vacuum,” CJI Kant said. At the request of senior advocate Amit Sibal, appearing for OTT platforms, the court replaced the term “preventive” with “effective” in its order to avoid any impression of prior restraint.
Attorney General R Venkatramani informed the court that the Ministry of Information and Broadcasting is in the process of drafting guidelines, which would be placed in the public domain for consultation. Recording this assurance, the Bench directed that the draft be published to invite public feedback and suggested the constitution of an expert committee comprising domain experts and persons with judicial background.
“We are informed by the learned Attorney General that the Ministry of Information and Broadcasting is proposing certain guidelines which are to be brought in public domain to invite suggestions from the public at large,” the order stated, posting the matter for further consideration after four weeks.
The court reiterated that while dissent and criticism of the government form the backbone of democracy, the rights of ordinary citizens, particularly the poor, marginalised and those without a platform, also deserve protection from online abuse, humiliation and reputational harm. The issue of regulating UGC, the Bench observed, requires a delicate balance between safeguarding free speech and preventing irreversible social damage.