Free Expression, But With Terms and Conditions

India woke up to yet another landmark clash between technology and law this September when the Karnataka High Court dismissed a petition by X, formerly Twitter, against the Indian government’s new content regulation mechanism known as the Sahyog Portal. The court’s message was clear and uncompromising: no global platform can treat India as a playground for unregulated speech, and liberty in this country is inseparably tied to responsibility. In one stroke, the judgment reignited a debate that has simmered for years—how far can the state go in regulating online platforms, and where must the line be drawn to protect the democratic promise of free expression? This case, though seemingly limited to one platform and one government mechanism, is a prism through which the larger tensions of our digital age can be examined, offering an insight into India’s evolving constitutionalism, its regulatory philosophy, and its role as a digital powerhouse.

The facts that led to this clash are simple enough but symbolically weighty. The Sahyog Portal was introduced as a centralized government mechanism through which unlawful online content—ranging from hate speech to fake news and child exploitation material—could be reported, flagged, and ordered for takedown. Intermediaries like X, Meta, or YouTube were expected to comply swiftly, failing which they could lose their “safe harbor” protection under Section 79 of the Information Technology Act. For the platforms, however, this represented a shift from being neutral hosts of third-party content to being active agents of state censorship. X challenged the legality of this framework, arguing that it undermined the constitutional right to freedom of speech and expression, chilled online discourse, and vested the government with sweeping powers unchecked by procedural safeguards. But the Karnataka High Court disagreed. Justice Nagaprasanna, writing for the bench, emphasized that platforms operating in India must respect Indian laws, and that while Article 19(1)(a) guarantees free speech, Article 19(2) allows for reasonable restrictions in the interests of sovereignty, public order, decency, and morality. The judgment resonated with a pointed observation: liberty is yoked with responsibility.

What makes this moment particularly significant is not just the court’s reasoning, but the context in which it arrives. India today is one of the largest digital markets in the world, with nearly 850 million internet users and counting. Social media platforms are not merely tools of entertainment but arenas where political discourse unfolds, reputations are made or destroyed, and civic activism takes root. The regulation of such spaces, therefore, cannot be treated lightly. On the one hand, unchecked online speech has fueled mob violence, communal flare-ups, and the rapid spread of misinformation during crises, from the COVID-19 pandemic to election seasons. On the other hand, overzealous regulation risks silencing dissent, shrinking democratic space, and turning social media into a tame echo chamber of state-approved speech. The challenge, as always, lies in striking a balance.

To understand why the Sahyog Portal matters, one must step back to the architecture of Indian cyber law. The IT Act of 2000, drafted in a very different technological era, initially treated intermediaries as neutral conduits of information. Section 79 provided them immunity from liability for user-generated content, provided they acted merely as intermediaries and removed unlawful material once notified. Over time, as social media morphed into powerful publishers in their own right, successive governments began demanding more accountability. The 2021 Intermediary Guidelines and Digital Media Ethics Code marked a decisive turn, imposing obligations such as traceability of messages on WhatsApp, the appointment of grievance officers in India, and time-bound removal of flagged content. The Sahyog Portal is the latest extension of this regulatory arc, creating a centralized, technology-driven mechanism for content governance. For platforms, this dramatically alters the compliance burden and narrows the space for resisting takedown orders. For the state, it represents efficiency and centralized control. For users, however, it raises a fundamental question: who decides what is unlawful, and on what grounds?

This is not an Indian problem alone. Across the world, democracies are wrestling with how to regulate Big Tech. In the United States, platforms enjoy broad immunity under Section 230 of the Communications Decency Act, though bipartisan calls for reform have grown louder after repeated scandals around misinformation and extremist content. The European Union has enacted the Digital Services Act, imposing due diligence and transparency obligations on online platforms, including hefty fines for non-compliance. Even closer home, countries like Australia have experimented with laws compelling platforms to remove harmful material within 24 hours, and Singapore has crafted legislation allowing the government to direct corrections of “fake news.” India’s Sahyog Portal sits within this global trend of governments reclaiming power from tech giants. The question is not whether regulation is necessary, but how it is designed and implemented.

Critics of the Karnataka High Court’s decision argue that the Sahyog Portal tilts the scales too far in favor of the state. Their concern is that by centralizing takedown requests and bypassing judicial oversight in the first instance, the system risks being used for political ends—silencing critical journalism, dissenting voices, or minority viewpoints. The chilling effect, they warn, is not hypothetical. Indian courts have previously expressed concern about vague takedown orders that platforms are compelled to obey or risk losing safe harbor. If compliance becomes automated and unquestioning, platforms may over-remove content to stay on the safe side, thereby curbing legitimate expression. In a democracy, such outcomes can erode public trust in both state institutions and private platforms.

Yet it would be intellectually dishonest to pretend that platforms are merely hapless guardians of free speech. Their record on content moderation has been far from flawless. There is ample evidence of platforms being slow to curb hate speech, allowing coordinated disinformation campaigns, or privileging engagement metrics over social responsibility. In India, fake news has repeatedly led to real-world violence—from lynchings linked to rumors of child kidnappings spread on WhatsApp to incendiary posts that exacerbated communal tensions. In these situations, the state has a legitimate interest in intervening quickly and decisively. As Mahatma Gandhi once said, “Freedom is not worth having if it does not include the freedom to make mistakes.” But in the digital era, mistakes amplified on social media can snowball into crises that cost lives. The state, therefore, cannot remain a passive bystander. The Sahyog Portal represents an attempt—whether flawed or effective remains to be seen—to institutionalize accountability.

What the Karnataka High Court recognized, perhaps implicitly, is that the Constitution itself anticipates this balance. Article 19(1)(a) enshrines the right to free speech, but Article 19(2) explicitly allows the state to impose reasonable restrictions in the interests of public order, security of the state, decency, morality, and other enumerated grounds. The question has always been what counts as “reasonable.” Courts have traditionally tested restrictions for proportionality, procedural safeguards, and non-arbitrariness. In upholding the Sahyog Portal, the High Court appears to have prioritized the state’s responsibility to maintain order over the platform’s claim of free expression. Whether this interpretation stands when inevitably challenged before the Supreme Court will be the real test.

For businesses and compliance officers, the implications are immediate and practical. Platforms operating in India must now ensure robust processes to respond to Sahyog Portal orders swiftly, maintain transparency logs, and prepare for audits by regulators. Non-compliance can mean not only the loss of safe harbor but also exposure to criminal liability under the IT Act and the new Bharatiya Nyaya Sanhita. Lawyers advising such companies must navigate a complex terrain: how to comply with Indian mandates without falling afoul of global free speech standards, how to design appeal processes for users whose content is taken down, and how to manage reputational risks in a polarized political environment. Smaller startups in the social media or online publishing space may find these burdens especially onerous, leading to concerns that regulation may inadvertently stifle innovation by entrenching the dominance of established giants who alone can absorb compliance costs.

The editorial opportunity lies in moving beyond the binary of censorship versus free speech. The real challenge is institutional design. How can India craft a framework that both combats unlawful content and preserves the vibrancy of its democratic discourse? One possibility is to build stronger independent oversight into the takedown process, such as a quasi-judicial review body that can adjudicate contested orders swiftly. Another is to mandate greater transparency from both the state and platforms: regular publication of takedown requests, reasons cited, and compliance statistics. Civil society participation—through advisory councils or public consultations—can also lend legitimacy to the process. Importantly, the courts must remain vigilant, ready to strike down orders or rules that cross the line into arbitrariness or disproportionate censorship. The Karnataka High Court’s judgment may have signaled deference to state power, but the conversation does not end there.

India’s regulatory experiment will also shape global debates. Tech companies often argue that the internet is borderless and that local laws must yield to universal norms of free expression. But as the High Court noted, platforms cannot expect to enjoy market access in India while ignoring Indian law. This raises difficult questions about the future of the global internet. Are we moving toward a “splinternet,” where each country enforces its own rules, fragmenting the digital commons? Or can a middle path be forged, where international standards of free speech coexist with culturally and politically sensitive regulation? India, by virtue of its size and influence, has the power to set precedents that others may follow. How it balances these competing imperatives will be watched closely from Silicon Valley to Brussels to Singapore.

One must also acknowledge the political undertones. Content regulation is never ideologically neutral. Which speech is deemed harmful, and who decides, often reflects prevailing power structures. In India’s plural democracy, where dissent and criticism are vital, there will always be suspicion that regulation is a tool of control. This is why judicial vigilance, public debate, and active media scrutiny are indispensable. The Sahyog Portal may be technologically innovative, but without robust safeguards, it risks being perceived as yet another mechanism to centralize authority over discourse. The task, therefore, is not just legal or technical, but fundamentally democratic.

As we reflect on this moment, it helps to recall the words of Justice Louis Brandeis of the U.S. Supreme Court, who famously said: “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” Transparency, accountability, and public scrutiny are the antidotes to both state overreach and corporate irresponsibility. If the Sahyog Portal is to succeed, it must embody these principles, not circumvent them.

In the end, the Karnataka High Court’s ruling is not the final word but a chapter in India’s ongoing negotiation with digital power. The fundamental truth is that free speech in the twenty-first century cannot be disentangled from technology, nor can technology be left entirely free of regulation. The balance must be struck carefully, continually, and transparently. India has chosen a path of assertive regulation, and platforms must adapt. But citizens too must remain vigilant, ensuring that in the name of responsibility, liberty is not quietly eroded. The health of our democracy depends on it.