Author: Anha Tahir, Aligarh Muslim University

This article argues that social media platforms are not merely the private entities; they constitute a critical digital infrastructure that directly impacts the fundamental rights of individuals, their regulation has become a vital constitutional necessity. Globally, three regulatory models have emerged: self-regulation, where platforms manage internal policies; external regulation, where the State intervenes to curb rights infringements; and co-regulation, exemplified by the EU Digital Services Act, which balances state and private authority through independent oversight. In India, a tension exists between a “Rights-First” model, grounded in judicial oversight and constitutional safeguards, and an “Executive-First” model, characterized by state-controlled, opaque regulatory mechanisms, a shift highlighted by the Karnataka High Court’s judgment in X Corp. v. Union of India (2026).

To effectively regulate social media platforms, the Judiciary must reclaim its role as the sentinel of Digital Constitutionalism. This paper analyses the paradigm shift from “Safe Harbour” protections to “Active Gatekeeping” under the IT Rules 2026. The article advocates for a transition toward a rights-based framework. This includes the application of writ jurisdiction to major intermediaries, the establishment of an Independent Digital Commission, and the strict adherence to the principles of natural justice to ensure that the “new normality” of the digital sphere remains governed by the Rule of Law rather than administrative convenience.

KEYWORDS

Digital Constitutionalism, Intermediary Liability, Collateral Censorship, Private Sovereignty, Natural Justice, Writ Jurisdiction, Algorithmic Accountability.

“In this race of technology, the law must be the charioteer steering the course of technology, not a bystander watching its lightning sprint. When the tide of technology rises, the law cannot remain anchored in the past.”

-PURUSHAINDRA KUMAR KAURAV, J.

The information revolution is the era in which the entire lives of individuals are archived in the cloud or within digital dossiers. While technology is an important tool for the advancement of human lives in this era, simultaneously, it is a weapon capable of breaching the sacred private space of an individual. With the development of technology, it is required that the law can’t afford to crawl.

The US Supreme court held that while in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace – the ‘vast democratic forums of the Internet’ in general, … and social media in particular.

In September 2019, a man was sentenced by a German court only for sharing a video reporting on ISIS, making him guilty for sharing propaganda material of a forbidden terrorist organisation on Facebook. Later, the Bavarian High Court overruled the decision, citing the court’s error because sharing of content with forbidden symbols does not amount to terror propaganda. This case shows the importance of judicial review despite having the first perplexing impression it might give. It requires a nuanced approach when it comes to both the content itself and to the way platforms are expected to react.

This research paper argues that the traditional paradigm of the state as the sole repository of power has been disrupted by the emergence of social media platforms as “Private Sovereigns.” As digital dossiers and cloud-based archives increasingly define the human experience, the judiciary can no longer afford to remain a passive bystander. Instead, it must evolve into the active “charioteer” of technology, ensuring that the lightning sprint of innovation does not outpace the fundamental principles of constitutionalism.

​By analyzing the shift from the protective “Safe Harbor” regime to the “Active Gatekeeper” mandates of the IT Rules 2026, this paper explores how judicial review serves as a critical corrective measure against both executive overreach and algorithmic bias. Using the Four-Pronged Proportionality Test as its primary diagnostic tool, this research examines the tension between the necessity for rapid content moderation, such as the three-hour takedown window, and the constitutional prohibition of “prior restraint.”

​Ultimately, this study posits that the “new normality” of digital life requires a transition to a Rights-First regulatory model. It advocates for the institutionalization of natural justice, the extension of writ jurisdiction to major intermediaries, and the establishment of independent oversight bodies. The paper concludes that while technology may rise as a tide, the law must serve as the vessel that navigates it, ensuring that the advancement of the digital forum remains tethered to the sacred private space and the democratic freedoms of the individual.

With the rise of immense influence of social media platforms India has extended its control over online speech and contents by laws and executive orders. Information Technology Act 2000 (IT Act), alongside the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (IT Rules) and the Digital Personal Data Protection Act 2023 (DPDP Act), which provide the State with sweeping exemptions.

Jawed and Girish discuss that the executive is empowered by these rules to manage online content while ‘safe harbour’ protection remains in theory. But struggling with vague definitions and opaque tools like Sahyog, these platforms form ‘collateral censorship’ to mitigate state-imposed liability; they over comply, removing even lawful speech.

Two distinct philosophies emerged to determine the limits of this executive reach by courts. Jawed and Girish specifically highlights them as – The “Rights-First” Model (Constitutionalism) where The government and big tech companies should both be held accountable by the “Rule of Law” building on the foundational precedent of Shreya Singhal v. Union of India, mandating that restrictions must align strictly with Article 19(2) and face strong judicial or quasi-judicial oversight, being extended by the Bombay High Court in Kunal Kamra v. Union of India, struck down the government’s proposed Fact Check Unit (FCU) as unconstitutional. The court identified the inherent danger of “collateral censorship,” arguing that if the State acts as the sole arbiter of truth regarding its own affairs, it creates a “chilling effect” that discourages even lawful criticism. The other philosophy is the “Executive-First” Model characterised by Digital Authoritarianism, where the government dictates online acceptability through administrative mandates, often bypassing the court system. Conversely, the Karnataka High Court’s ruling in X Corp v. Union of India represents a pivot toward state-centric control. By upholding mass content takedowns via the Sahyog portal under Section 79(3)(b), the court effectively permitted the executive to circumvent the procedural checks established in Section 69A. Soorya Balendra (2024) discusses the need for regulatory models and their various approaches but does not specifically categorise the recent Indian trend as a shift from a judicial model to an “Executive-First” model endorsed by specific recent judgments like X Corp. v. Union of India (2026).

Nicolas Suzor (2018), Maria Jawed and R. Girish (2026) and Celeste et al. (2022), have explored the emergence of “Digital Constitutionalism.” According to them, social media platforms are essential instruments for public discourse by sharing the news, driving political participation and amplifying certain voices and silencing others thereby making it a ‘modern public square’. These platforms have begun to exercise a form of “Private Sovereignty” over speech and information that rivals state power. Therefore, the role of judiciary is no longer merely to interpret statutes but to ensure that these private governors do not bypass fundamental constitutional safeguards. ​Dr. Dinesh (2022) emphasize the need for doctrine of judicial review with the ever-increasing contours of technology, questions whether private social media intermediaries are amenable to writ jurisdiction by exploring the “Public Character of Functions” test, arguing that unless a platform is backed by a government monopoly, its relationship with users remains primarily contractual creating a “remedy gap”, while administrative law principles like Natural Justice suggest users should have a right to be heard, the current legal framework often forces these disputes into civil suits under the Civil Procedure Code (CPC) rather than public law remedies.

​Thus, while the substantive jurisprudence (Shreya Singhal) points toward a Rights-First model, the procedural limitations of writ jurisdiction identified by Dinesh (2022) continue to insulate platforms from direct constitutional accountability, leaving the citizen in a state of ‘remedial precarity’.

To examine the evolving role of the Judiciary in regulating social media platforms within the Indian constitutional framework, the research uses the qualitative as well as doctrinal methods. The study is structured to understand the theoretical concepts of constitutionalism with the practical exigencies of modern digital governance.

The research paper critically examines the statutory provisions governing social media platforms specifically the Information Technology Act, 2000 and the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, focussing on the significant 2026 Amendments and maps out the judicial shift from “Safe Harbor” to “Active Gatekeeping” with the Supreme court and High court’s precedent where they shows how social media infringes ones fundamental rights.

This research uses a minimum comparative approach by studying global regulatory models, which include an analysis of the European Union’s Digital Services Act (DSA) as a benchmark for the “Co-regulation” model and evaluates the failure of these global models in international jurisdictions such as the Rohingya crisis and US Section 230 debates, to highlight the limitations of non-state-led oversight.

At last the research relies on secondary sources for broader socio-legal context, which includes academic journals and treatises on constitutional law, reports from digital rights organizations and legal commentaries regarding the impact of the 2026 IT amendments. By synthesizing these sources, the methodology ensures a comprehensive critique of the shift from executive-led "opaque" regulation to a proposed model of judicial and independent oversight.

Constitutionalism stands as the fundamental antithesis of arbitrary power; it is the principle that governmental authority is limited by law to prevent the encroachment of unlimited power upon individual freedoms. Constitutionalism has emerged against absolutism as a safeguard, mandating an enforceable observance to constitutional boundaries based on the necessity of limited governance. Traditionally, it is framed to regulate the relationship between the nation-state and the citizenry. However, in the contemporary era the rise of digital technology reshaped the distribution of power. Social media platforms are not merely the private property owners, they keep us close to our relatives and friends, allowing us to ‘travel’ around the world, exchange news, ideas and, in some cases, even carry out our work. This ‘new normality’ has exposed the constitutional relevance of social media platforms in a way that had not been seen before.

Digital platforms now operate as a ‘Private Sovereignty’ governing a decentralised online ecosystem where they exercise their own authority that was once an exclusive domain of public institutions. This digital infrastructure is managed by intermediaries that often present themselves as neutral “carriers” or “facilitators” of content.

By projecting an image of neutrality, these platforms seek to evade legal and ethical responsibility for user behaviour and the specific consequences of their system designs and deployments. Their claim of neutrality is contradicted by how they manipulate users’ actions by being neutral while simultaneously satisfying the competing demands of diverse user communities, advertisers, civil society, and state governments. Platforms perform a delicate balancing act, exercising absolute discretion grounded in their rights as owners of private property, to manage their networks and control speech. This tension necessitates a “digital constitutionalism” based on the principles of rule of law that ensures these private governors are held to the same standards of accountability and transparency as the traditional state.

Social media platforms provide tools for exercise of fundamental rights. There are activities we no longer imagine performing without social media. Its regulation is one of the concerns mainly in the developing countries as they have built their technology infrastructure within the couple of decades. Authorities usually restrict the use of social media or shut down the access of the internet causing hindrance in the day to day life of common people. The European Court of Human Rights (ECtHR) has found that blocking access to or shutting down the Internet and social media constitutes a severe violation of human rights.

Worldwide three models are prevailing in regulating social media platforms:

Self-regulations: Platforms consist of minimum external oversight meaning thereby they from time to time improve their policies. For example- In 2019, Meta openly took corrective measures by updating its algorithm as it detected the failure of its AI system in detecting posts related to Christchurch terror attack livestream.

This model is subject to limitations as the platforms are companies and most of the time their movements are because of commercial perception. Most policies are biased and lead to discrimination. When genocide occurs against Rohingya Muslims, Facebook algorithm boosted hate speech and there was negligence on part of the platform in taking down the posts results in filing legal action by the Rohingya Muslims of UK and US. Facebook was largely protected from liability under US laws over content posted by its users.

External regulations: Government has to intervene in the governance of social media through policies related to privacy, data protection, content sharing, intellectual property, and competition. This model came due to the breach of privacy, data protection regulations; the repudiation of intermediary liability protections; and competition law.

Free speech is one of the ancient and widely recognised constitutional rights of various countries being an indispensable right it gives liberty of speech to individuals. It became a fundamental right but when this right is used without any limitation it can infringe other rights also such as right to privacy, right to freedom of thoughts and religion.

The Right to Privacy is the individual’s inherent right under Article 21 to safeguard their personal life, information, and autonomy from unwarranted intrusion by the state, private entities, or other individuals. It not only encompasses physical privacy but also includes informational privacy, ensuring dignity and autonomy in decision-making. The use of social media should be such that it does not infringe into the privacy of the user concerned. The judiciary took their instance on it to maintain the restriction by establishing the Four-Pronged Proportionality Test in Modern Dental College and affirmed in K.S. Puttaswamy-

(a) There must be a legitimate goal to restrict a right (legitimate goal stage).

(b) It has to be a suitable means of furthering this goal (suitability or rational connection stage).

© There must be an equally effective alternative (necessity stage).

(d) The measure must not have a disproportionate impact on the right-holder (balancing stage)

Balancing Freedom of Expression and Content Regulation

We can profess our political and religious faiths, communicating, job searches, meeting organising or many more things. Social media platforms have become such important communication tools that restricting access to them may have significant constitutional consequences. This freedom comes under ambit of Article 19(1)(a) of the constitution.

However, they are subject to reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence.

When a person makes remarks against the Prime Minister on YouTube that he has resorted instigation causing violence creating chaos in the public peace supreme court quashed the FIR against citing that his freedom of speech and expression under Article 19 criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right.

The self- regulation model creates challenges related to collateral censorship which is against Article 19. As in the Kunal Kamra case the court exposed a fatal flaw at FCU as platforms operate as commercial entities rather than democratic principle and lack any incentives to contest FCU determination.

Co-regulations: Within the regulatory frameworks, the collaboration between authorities, platforms, and other stakeholders occurs. It attempts to democratize aspects of the governance and management of big technology companies. Here, both government and private parties share responsibility for regulatory tasks. The government sets the objectives while the private parties enforce specific standards. This model has a broader approach in the European Union Digital Services Act by promoting fair processes and independent oversight, it limits the power of State as well as platforms.

Intermediaries got some immunity from liability contingent on the condition that they complied with statutory and domestic laws. This immunity varies from jurisdiction to jurisdiction, influenced by the legal context and various cultural, political, societal, and other factors. There are two types of approaches to identify intermediaries' liability:

Fault-based approach: Under this approach, intermediaries are held liable when they do not perform the specified functions as per the IT Rules, 2021, stipulates that an intermediary is obligated to make reasonable efforts to avoid publishing any objectionable content. For that reason, the intermediary is obligated to observe due diligence while discharging his duties under the IT Act. The Supreme Court held that an intermediary can not be absolved from his liability under the POCSO Act unless it complied with the requirements set out under the said Act, even though it complied with the requirements of Section 79 of the IT Act.

In TVF Media Labs (P) Ltd. V. State (NCT of Delhi) (2023), where the Delhi High Court observed that “online content curators or intermediaries” often operate in clear violation of the IT Rules, 2021. In this case, the court noted that the failure to provide age-based classification or warnings regarding profanity, specifically in the web series College Romance, constituted a breach of the digital ethics code. Consequently, platforms are no longer viewed as neutral carriers; they are now mandated to implement proactive moderation and classification tools to retain their legal immunity.

Knowledge based approach: This approach has lesser degree of liability than the fault based approach where intermediaries have knowledge about the illegality but does not remove the content within stipulated reasonable time.

Google France case is the leading case, where Louis Vuitton sued Google’s search engine as it directed the users to the counterfeit websites' links for selling Louis Vuitton’s product thereby infringing their trademark. However, the European Court of Justice upheld that Google may be held liable only if it plays an “active” role as a service provider which essentially has the knowledge or control over the data results it generates. Therefore, Google cannot be held liable in this case.

With the emergence of 2026 amendments the Judicial review of social media intermediaries in India has evolved from protecting them as “safe harbors” to holding them accountable as “active gatekeepers.”

IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2026 serves the legitimate goal of preventing social unrest. The intermediary as per the rule can remove content (including SGI) while following these Rules, that act of removal will not be held against it under Section 79(2)(a) or (b) of the IT Act, 2000. It does not matter whether the removal was triggered by a human reviewer or by an automated classifier. They chose to close it off legislatively rather than leave it to courts to sort out. Its mandate for a 3-hour takedown window for AI-generated misinformation is a significant policy shift. The practical weakness of such a mandate is the high risk of "prior restraint." Intermediaries, fearing the loss of "Safe Harbor" protection as established in TVF Media Labs (2023), are likely to deploy aggressive, non-nuanced algorithmic filters. This leads to collateral censorship and infringing the freedom of speech and expression.

• Institutionalizing Natural Justice

To regulate social media platforms, the dual system, which is prevailing in India, must shift the executive model to the right first model. The judiciary must serve as a critical check on executive power, Any content removal, whether directed by the State or performed by an intermediary, must adhere to the principles of natural justice. The government, to regulate it took administrative measures by account suspension or internet shutdown without any sufficient notice through opaque portals causing hindrance in the peace of society thereby infringing their rights, affected parties must be granted reasonable opportunity for right to be heard as digital platforms are now essential socio-economic tools, ensuring that regulatory measures do not summarily extinguish the livelihoods or peace of the citizenry.

• Establishment of an Independent Digital Commission

To replace the current executive-dominated model with a Statutory Independent Digital Commission, India should consider it and draws inspiration from the European Union’s Digital Services Act (DSA), this body would ensure a balanced regulatory perspective, operating independently of political exigencies and providing a transparent mechanism for oversight that prioritizes constitutional safeguards over administrative convenience.

• Extension of Writ Jurisdiction to Intermediaries

Given the pervasive influence of social media platforms on the exercise of fundamental rights. It is required that there must be an extension of Writ Jurisdiction to these entities. The way of filing a civil suit is often too prolonged to address the immediate harm of digital subjugation by extending the rights under Article 226 and Article 32, powers to cover major intermediaries would ensure expeditious justice, allowing the courts to issue immediate remedies when digital constitutional rights are infringed.

The evaluation of social media from private digital space to the centre pillar of democratic discourse requires evaluation of fundamental constitutional boundaries. As platforms transition into the role of “Private Sovereigns,” the doctrine of limited governance must extend beyond the State to encompass the digital intermediaries that now mediate fundamental rights. The shift in Indian jurisprudence, from the protective “Safe Harbor” regime of the past to the “Active Gatekeeping” mandate of the IT Rules 2026, marks a critical juncture in this regulatory journey.

Social media platforms provide free speech, but when it is performed with a malicious mind can easily infringe the fundamental rights of its users. Its regulation became a key essential to maintain peace and order in society. The judiciary clearly stated that fundamental rights are to be protected unless they are under restrictions and follow the four-stage proportionality test. Even the intermediary will be liable under two approaches- fault based where platforms fail to exercise due diligence and there is a clear violation of the law; and the knowledge based where the platform is made aware of specific illegal content and fails to act within the mandated timelines,

The courts are empowered to check the executive actions by adopting a Rights-First model, the Indian legal system can bridge the gap between administrative efficiency and constitutional liberty. The implementation of natural justice through the right to be heard, the establishment of a Statutory Independent Digital Commission, and the extension of writ jurisdiction to major intermediaries are no longer radical suggestions, they are essential safeguards for a digital democracy.

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