The pilot-basis trap: Free speech on a trial run?

The Supreme Court’s recent order in M/S Cure SMA Foundation of India v. Union of India & Ors has triggered a fresh wave of debates, opening a Pandora’s Box in the realm of online content moderation.

While hearing petitions arising out of the Ranveer Allahbadia and Samay Raina controversy, the Court expressed concerns related to accessibility of obscene content, derogatory portrayals of persons with disabilities and dissemination of the content perceived as “anti-national”. Although the Court has clarified that regulatory mechanisms should not outlaw fundamental rights and emphasised that it would not approve “something which can gag somebody,” it nevertheless orally suggested that these mechanisms may be introduced first “on a pilot-basis”.

The Bench has suggested a series of regulatory mechanisms ranging from Aadhaar-based age verification and the formation of an autonomous body to assess the validity of online content, to the formulation of stringent laws addressing content that demeans individuals.

“The warning can be for a few seconds...then perhaps ask for your Aadhaar card etc. So that your age can be verified and then the program starts. Of course these are illustrative suggestions...a combination of different experts...Let something come up on pilot basis and if it clogs free speech and expression, it can be looked at then. We need to build a responsible society and once that happens, most of the problems will be solved,” said Chief Justice of India (CJI) Surya Kant.

While the Court has labelled these as “illustrative suggestions,” any proposal or idea emanating from the highest judicial authority of the country inevitably holds value and grabs the attention of the people at large (read here).

The Aadhaar-based age verification raises significant privacy concerns and sits uncomfortably with the Puttaswamy privacy framework and India’s broader data-privacy regime. Yet, what is more troubling is the idea of piloting restrictions on fundamental rights. It signals a precarious approach, thus shifting the burden from the State to citizens. This would effectively turn individuals into subjects of experimentation whose harms will reverberate long after.

Against this backdrop, this piece seeks to analyse the troubling point as to why the Court’s illustrative suggestion of introducing restrictive measures on a “pilot basis” is constitutionally problematic and potentially creates a chilling effect.

A “pilot basis” approach is essentially derived from pilot studies and schemes. It allows authorities to examine reforms before their full-scale implementation and execution. Although it appears to be a cautionary and an experimental approach, its implementation in the context of fundamental rights is highly problematic. The very root of this problem is the fact that unlike policy formulations, constitutional freedoms, particularly fundamental rights, cannot be placed on trial runs. For instance, a pilot basis approach would essentially mean: “Let the State first restrict your rights. If anything goes wrong, we can look at it later”.

This is problematic for two reasons. First, this reverses the very essence of the constitutional order, thereby contravening Article 19(2) of the Constitution. Article 19(2) places the burden on the State to demonstrate, before imposing a restriction, that the measure is necessary, proportionate and the least restrictive option available. A pilot scheme inverts this constitutional framework by presuming that a restriction may be imposed first and examined for constitutionality later.

Second, fundamental rights are not prototypes and citizens are not subjects in constitutional laboratories. Placing them on a trial run is essentially a temporary alteration, which would not lessen the harm but rather affect the constitutional design.

This is the heart of the pilot-basis trap; a temporary mechanism results in permanent consequences, thereby conditioning citizens to self-censorship. The Aadhaar-based verification means that even though a regulatory mechanism on a pilot basis results in excessive data collection, privacy harms or wrongful exclusion, by the time it is evaluated, free speech would have become cautious and identity would no longer be private. With the Court endorsing a kind of “shoot first, ask questions later” approach, the chilling of rights would become inevitable. And once chilled, they would not thaw easily.

a) The Indian constitutional approach to chilling effect

A chilling effect is inherent and not incidental to the pilot-basis approach. Indian free speech jurisprudence has long recognised that censorship does not only occur through direct prohibition. As affirmed by the Supreme Court in Shreya Singhal and Anuradha Bhasin, vague and overbroad measures are sufficient to deter individuals from exercising their rights. Through these cases, the Court has time and again observed that any measure that has a propensity to chill fundamental rights must be dealt with heightened scrutiny regardless of the fact that the State’s measure is temporary or preventive. Once the State steps into the shoes of an “uncertain and unreasonable” watchdog, thereby monitoring activity and conduct, self-censorship becomes the default response.

This doctrinal foundation squarely applies to the present case. The idea of introducing an Aadhaar-based age verification - regardless of how temporary, experimental or small-scale it is - alters the behaviour of individuals. In Anuradha Bhasin, the Court ruled that the restrictions on fundamental rights must satisfy the test of reasonableness, necessity and proportionality (paragraph 72) - a jurisprudential concept that requires justification before any restriction is imposed and not retrospective validation.

Additionally, once people are aware that they are being “monitored,” their choices and privacy are no longer free. Surveillance over online activities may result in individuals restricting themselves from accessing a certain specific kind of content or information (whether political, religious, dissenting or otherwise sensitive). This stands in direct contravention to what the Court cautioned against in Shreya Singhal (paragraph 83). What is more crucial to understand is that once the chilling effect kicks in, the harm cannot be reversed.

b) Global constitutional standards vis-a-vis the pilot basis approach

The pilot-based approach seems not to be welcomed within the constitutional standards of other democracies. In the United States, it suffers from a troubling jurisprudential history. In the landmark case of Skinner v. Oklahoma, the US Supreme Court propounded the “strict scrutiny” standard. The Court ruled that it is the State’s duty to present a reasonable justification before implementing any limitation. Although the aforementioned approach of strict scrutiny is not followed in India, the Court’s reasoning is of critical relevance in the present case.

The Canadian stance is even more explicit in this regard. Dickson CJ of the Supreme Court of Canada elaborately propounded the Oakes Test in R. v. Oakes. The State must justify that the objective of the restrictive measure is compelling enough to warrant overriding the constitutionally guaranteed freedom; a rational nexus must exist between such a measure and the object sought to be achieved; the means must be least restrictive; and lastly, there must be proportionality between the effects of such measure and the object sought to be achieved.

The Court’s “illustrative suggestion” to introduce an additional measure in online content moderation is constitutionally problematic. When viewed from a privacy lens, the pilot-based approach risks the creation of a database with access to monitor individual online activity to biometric data. This judicially-sanctioned breach of privacy (if implemented) creates a legal fiction that, once normalised, would become impossible to make good of the harm done. The proportionality test under Article 19(2) demonstrates that the present measure fails ex ante constitutional scrutiny. There exist multiple viable alternatives - including but not limited to parental control, age verification by third parties and content warnings - that place substantially fewer limitations or intrusions on accomplishing the regulatory objective.

Even if we proceed with Kant CJ’s idea of a pilot-based approach, the social cost of establishing such a database while recording comprehensive media patterns, individual interests and beliefs substantially exceeds the benefit of age verification through less intrusive mechanisms. Thus, it fails to stand on the foundational principles of proportionality.

Most critically, the measure's effects on freedom of expression are readily predictable. The idea that the individuals' media consumption will be tracked and permanently recorded will inevitably cause individuals to self-censor. A paradoxical phenomenon that stands on established surveillance theory and psychological principles regarding privacy and behavioural manipulation. The Court’s underlying assumption that the impacts of regulation can be known only after implementation (pilot-based approach) suffers a factual fallacy.

Before concluding this piece, we are reminded of Fritz Fleiner, a German administrative law scholar, who once wrote: “the police should not shoot at sparrows with cannons.” Fleiner’s caution with unreasonable and disproportionate use of the State’s power resonates with the present issue at hand. The pilot approach, though temporary in nature, might end up acting as a constitutional cannon against what may be mere speculative harms. The chilling effect is foreseeable through established theoretical and practical grounds, which render this implementation unjustifiable. In the end, the Court’s observation that “we need to build a responsible society and once that happens, most of the problems will be solved,” cannot be achieved at the cost of curbing fundamental rights.

Sayed Kirdar Husain and Vedansh Raj are law students at Rajiv Gandhi National University of Law, Patiala.