Puneet Srivastava & Kushagra Tiwari
The new Digital Media Policy 2024 (“The Policy”), declared by the Government of Uttar Pradesh on August 28, 2024, marked a serious change in the state government’s policy of digital dissemination of information and regulation of content. Under the apparent objective of facilitating the work of the government in reaching out to more people for its various schemes and achievements through social media, this policy introduces incentives in the form of financial benefits to social media influencers and content creators. But beneath its facial skin lies an immensely elaborate web of possibilities for ramifications on freedom of expression and democratic discourse in the Indian digital space.
The policy, at its core, classifies digital platforms and their influencers based on the number of subscribers; it provides a unthinkable ₹8 lakh per month as monetary incentives for positive coverage of government schemata and activities, while at the same time, granting enormous powers of penalty to the Information Director for “anti-national,” “anti-social,” or content that runs against the government narrative with a host of interpretations leading up to withholding payments or initiating prosecution, which would carry punishment up to life imprisonment.
The article seeks to discuss the multi-faceted implications of the Policy for its potential impact on free speech, the independence of digital media, and the broader democratic fabric of India. We must, as we delve into the mechanisms and possible consequences of this policy, weigh such government communication needs against the basic tenets of a free and open internet in service of democratic society.
An Attack on Free Speech
Democracy essentially means that the ordinary citizen must have the right to express dissent, criticize the running of the country, and hold a plurality of views without any harassment. The Policy seems to strike at the very heart of this freedom. Severe punishment, including possible life imprisonment for posting “anti-national” material, is being prescribed by the state to muzzle every frail voice of dissent in the name of order.
The policy matters today because, if left unchallenged, it sets a dangerous precedent for other states, and indeed, the whole country. A policy such as this, if allowed to thrive, sends signals of increasing State control over the digital space-a move that may stifle innovation, suppress dissent, and tear down the very building blocks that constitute our democratic society. The implications of this policy are not confined to Uttar Pradesh; it may, as a matter of fact, reshape the way digital speech is policed in this country.
Article 19(1)(a) of the Indian Constitution guarantees the right to freedom of speech and expression. Proponents of the policy might argue that the restrictions in the Policy fall within the reasonable restrictions allowed under Article 19(2) of the Constitution, particularly concerning public order and national security. However, this argument fails to consider the established legal principles governing such restrictions.
In K.S. Puttaswamy v. Union of India (2018), the Supreme Court recognized the doctrine of proportionality as a cornerstone for evaluating restrictions on constitutional rights. This doctrine requires that any limitation on a fundamental right meet four essential criteria. First, the restriction must have a legitimate aim, meaning it must pursue a constitutionally valid and pressing public interest. Second, the measure must demonstrate suitability by being rationally connected to the stated objective. Third, it must satisfy the test of necessity, ensuring that no less restrictive means are available to achieve the same goal. Finally, the restriction must pass the test of proportionality strictu sensu, where the impact on fundamental rights must not outweigh the benefits derived from achieving the objective.
However, the measures listed in the Policy are neither suitable nor necessary. The vague terms such as “anti-national” and “anti-social” fail to provide a clear, objective standard for enforcement, leaving the policy open to arbitrary interpretation and misuse. This lack of precision makes the measures unsuitable for addressing the stated aim of combating harmful content, as it conflates genuine threats to public order with legitimate dissent or criticism. The Policy also runs afoul of the Supreme Court’s decision in Romesh Thapar v. State of Madras (1950), where the Court held that restrictions on free speech under Article 19(2) must have a proximate nexus to public order.
Additionally, the punitive measures prescribed, including life imprisonment, are far from being the least restrictive means of achieving the policy’s objectives. Instead, they represent a disproportionate response, particularly in a democratic society where free speech and the right to dissent are vital to governance.
In S. Rangarajan v. P. Jagjivan Ram (1989), the Court had similiarly emphasized that restrictions must be narrowly tailored and directly linked to the objective sought. In this case, the Court quashed the denial of a film’s certification, reaffirming that restrictions on speech must be narrowly tailored.
Less intrusive alternatives to the Policy, such as transparent content moderation guidelines, independent oversight mechanisms, or even public consultations to define harmful content, could address concerns about online safety without infringing on constitutionally guaranteed freedoms. By bypassing such measures, the Policy imposes undue restrictions on the digital public sphere. This disproportionate and vague approach not only fails the test of necessity but also threatens to set a precedent for unchecked state control over digital discourse, eroding the fundamental values of democracy and the open exchange of ideas.
Thus, the approach of the Policy on regulating digital media is highly questionable with regards to the balancing of state interests against individual rights in the digital era. Apart from this, the Policy may have a trickling effect on other states and a cascading effect on national policymaking in turn. The digital domain, by its very nature, transcends geographical boundaries, for which the spreading effect of such regional policy would be wide. Given this, there is a very valid fear that, as time progresses, the same measures will be judged and implemented across all of India, resulting in a burdensome patchwork of digital media regulations that might dramatically alter online expression in the country.
Chilling Effect on Digital Discourse
The potential impact of the Policy goes beyond immediate free speech concerns into the very heart of digital discourse; it has the potential to change the very character of the digital public sphere in India. This Policy may create an atmosphere of self-censorship and government-approved narratives that threatens to homogenize online content and kill the diversity of opinions so essential for a healthy democracy.
The vague and sweeping terms—“anti-national” and “anti-social”—open the door to arbitrary enforcement and abuse of power.
In Shreya Singhal v. Union of India (2015), the Supreme Court struck down Section 66A of the Information Technology Act, 2000, for its vague and overbroad language. The terms “grossly offensive” and “menacing” in the provision were deemed unconstitutional, as they lacked a clear definition and allowed arbitrary interpretations. The Court emphasized that vague laws have a chilling effect on free speech, as citizens self-censor to avoid the risk of prosecution.
The Policy mirrors this vagueness. The terms “anti-national” and “anti-social” are subjective and lack clarity, making them vulnerable to misuse by authorities. In fact, the inclusion of life imprisonment as a possible punishment exacerbates this chilling effect, as individuals may refrain from voicing even legitimate criticism of the government.
In an age where digital platforms are democratizing information dissemination, such restrictions could also significantly impair the public’s right to information. In State of U.P. v. Raj Narain (1975), the Supreme Court read the right to information into Article 19(1)(a) of the Constitution, holding that the right to freedom of speech includes the right of citizens to know about the workings of the government. This right is foundational to ensuring accountability and transparency in a democracy.
By creating barriers to independent reporting and fostering an atmosphere of self-censorship, the Policy significantly impairs the public’s access to diverse and unbiased information. Government control over digital narratives, coupled with penalties for dissent, restricts citizens’ ability to access alternative perspectives and critical analyses of public policies. This not only violates the right to information but also undermines the principles of transparency and accountability, which are essential for the functioning of a democratic society.
Incentivising Erosion of Media Independence
The policy does not only threaten those who may post content critical of the government; it also creates an environment where social media influencers and digital platforms are financially incentivised to promote the government’s achievements. While the idea of rewarding positive content might seem benign at first glance, it fundamentally distorts the media landscape. It turns influencers—who often serve as alternative voices to mainstream media—into mouthpieces for state propaganda, reducing the diversity of viewpoints available to the public.
The government thereby monetarises positive coverage and holds out a carrots-and-stick policy for those who would dare to question it, doling out financial carrots to those in favour and wielding a punitive stick against those who are out of favour. The dual approach of incentivisation and penalisation under this policy creates an interesting confluence of very complex legal and ethical debates. By offering financial rewards to obtain a particular liking, the government in effect commodities digital speech.
This policy probably runs afoul of the well-settled principles of independence of the media and the press as a watchdog in the context of a democratic form of governance. The Supreme Court of India, through various judgments, has always protected the independence of the media, as in the case of Indian Express Newspapers v. Union of India (1985). This case concerned the imposition of heavy customs duty on imported newsprint, which the Court invalidated, holding that economic measures should not indirectly stifle press freedom.
The Policy’s financial incentives mirror this concern but in reverse: instead of stifling dissent through financial burdens, it rewards compliance, creating an unequal playing field. Influencers and platforms aligned with the government narrative receive state funding, while dissenters face the threat of penalties, fundamentally skewing public discourse. The approach of the Policy may, thus, be seen to amount to an indirect control by the state over media narratives, tantamount to an infringement, if not in letter at least in spirit.
Furthermore, the policy’s approach to incentivizing positive coverage raises ethical concerns about the independence of media. It potentially conflicts with the principles of journalistic ethics and the media’s role as an impartial disseminator of information. The Press Council of India’s Norms of Journalistic Conduct stress the importance of editorial independence and impartiality. By financially incentivizing positive coverage, the Policy compromises these principles, turning digital influencers into de facto government spokespeople. This not only undermines public trust in the media but also restricts the diversity of perspectives essential for informed democratic debate.
Conclusion: The Need for Vigilance
Supporters of the Policy might argue that it is necessary to curb the spread of misinformation and maintain social order. In an age where fake news can spread like wildfire, some might see the Policy as a tool to ensure that digital platforms are not used to destabilize society. However, while the intent to combat misinformation is valid, the method of doing so through heavy-handed legal measures and financial incentives is deeply flawed.
Instead of fostering a culture of responsible digital citizenship, this Policy risks creating a culture of fear and compliance. It’s crucial to acknowledge the need for some regulation in digital spaces, but the approach must be balanced and grounded in principles that protect, rather than undermine, democratic values.
As this policy takes effect, it’s more important than ever for citizens, civil society, and independent media to remain vigilant. The encroachment of state power into digital spaces must be met with robust resistance to protect the freedoms that define our democracy. The Policy is not just a regional issue of Uttar Pradesh; it’s a litmus test for the future of free speech in India. We must ensure that this dangerous precedent does not become the norm.
As this Policy unfolds, it will be crucial for the legal community to engage in rigorous analysis and debate. The balance between state interests and individual rights in the digital age is a complex issue that requires nuanced consideration. The Policy may serve as a catalyst for a broader national conversation on how to regulate digital spaces while preserving the essence of democratic freedoms in the online world.
Puneet Srivastava and Kushagra Tiwari are fourth-year B.A. LL.B. students at The West Bengal National University of Juridical Sciences, Kolkata.
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