Abstract

The shift of public discourse onto digital platforms, now curated by algorithms, presents fundamental challenges to free speech under Article 19(1)(a) of the Indian Constitution. With over 800 million internet users, social media is crucial for Indian democratic deliberation. The paper argues that algorithmic governance has destabilized the ‘safe harbour’ distinction between a ‘publisher’ and a ‘passive conduit’. Modern platforms actively prioritize and amplify content, engaging in a form of automated editorial control that erodes their immunity. This positive control has also rendered the traditional ‘push’ and ‘pull’ media classifications redundant, replaced by a ‘predictive push’ model. India’s response, through the IT Rules, 2021, shifts the legal framework to a ‘compliance-first’ model. This requires ‘Significant Social Media Intermediaries’ (SSMIs) to exercise ‘due diligence’ and deploy automated filtering tools. However, this assertive state regulation, coupled with private algorithmic curation, risks a ‘chilling effect’ through automated censorship and intermediary liability. Key algorithmic practices such as shadow banning, context collapce and bias, personalisation etc. violate constitutional rights. The current Indian ‘command-and-control’ approach, focused on swift takedowns, contrasts with the systemic oversight and transparency required by the EU’s Digital Services Act (DSA). The paper concludes that an ‘Indian perspective’ must reject both data colonialism and digital authoritarianism, striving for a ‘digital constitutionalism’ to protect the right to speak, be heard, and dissent

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