[Answered] The regulation of commercial speech on digital platforms raises constitutional questions. Critically analyze the challenges of regulating such speech based on subjective concepts like ‘dignity’, while upholding freedom of expression.

Introduction

Digital platforms today host over 820 million Indian users (TRAI, 2024), where speech is increasingly monetised. Regulating such “commercial speech” through subjective notions like “dignity” risks colliding with constitutional guarantees of free expression.

1. Constitutional Position of Free Speech

1. Article 19(1)(a) protects freedom of speech and expression.
2. Article 19(2) permits “reasonable restrictions” on defined grounds: public order, decency, morality, security of the state, etc.
3. Dignity, though constitutionally significant under Article 21, is not an explicit ground for restricting speech.
4. Subramanian Swamy v. Union of India (2016): Court upheld criminal defamation by linking it to dignity, but not as an independent restriction.

2. Commercial Speech and Judicial Recognition

1. Sakal Papers v. Union of India (1962): State’s attempt to regulate newspaper size struck down; circulation is intrinsic to free speech.
2. Tata Press v. MTNL (1995): Affirmed commercial advertisements as part of Article 19(1)(a), as they aid consumer choice in a “democratic economy.”
3. Today, digital monetisation blurs the line: comedy shows, influencer content, or YouTube skits are simultaneously artistic, political, and commercial.

3. Challenges of Using ‘Dignity’ as a Regulatory Standard

1. Subjectivity: Dignity lacks a clear legal definition, making it prone to arbitrary interpretation.
2. Chilling Effect: Artists, satirists, and comedians may self-censor, undermining creativity and critical discourse.
3. Judicial Ambiguity: Divergent precedents (polyvocality) lead to inconsistent application — e.g., quashing FIRs against satire (Imran Pratapgadhi case, 2024) versus upholding restrictions in other contexts.
4. Risk of Overreach: Government-driven guidelines, like the proposed Broadcasting Services Regulation Bill, may enable executive censorship under the guise of dignity protection.

4. Balancing Dignity with Free Expression

1. Persons with Disabilities: Protecting dignity of marginalised groups is a legitimate social concern (UNCRPD, 2007). However, remedies should be narrowly tailored.
2. Proportionality Doctrine: Restrictions must meet tests of legality, necessity, and least-intrusive means (Justice K.S. Puttaswamy v. Union of India, 2017).
3. Alternative Remedies: Civil defamation, hate speech laws (BNS 2023 provisions), and targeted takedowns under Section 69A IT Act provide tools without requiring dignity-based censorship.

5. Safeguards for Regulation

1. Transparency: Mandatory disclosure of takedown orders, currently opaque under IT Rules (2009).
2. Stakeholder Consultation: Regulations must include creators, civil society, and users, not only industry bodies.
3. Independent Oversight: Avoid excessive executive discretion; consider quasi-judicial review boards.
4. Case Studies: EU’s Digital Services Act (2022) balances harmful content regulation with procedural safeguards like notice and appeal.

Way Forward

1. Shift focus from broad dignity-based bans to targeted harm-based regulation.
2. Encourage self-regulation codes with independent audits, as in the Advertising Standards Council of India (ASCI).
3. Invest in digital literacy and counterspeech as democratic correctives instead of heavy-handed censorship.

Conclusion 

As Amartya Sen notes in The Idea of Justice, dignity must coexist with liberty. India’s regulatory framework must prevent harm without diluting free expression — safeguarding democracy’s “marketplace of ideas.”