“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

Justice Louis Brandeis’ warning, delivered nearly a century ago, remains startlingly relevant today as the Indian Government appears to be engineering a quiet power grab over online speech. In a move that has triggered constitutional alarms, the executive is invoking Section 79(3)(b) of the Information Technology Act, 2000 (“IT Act, 2000”) not as a liability shield for intermediaries, as legislatively envisioned, but as the legal foundation for a parallel content blocking regime. 

Introduction

Section 79(3)(b) of the Information Technology Act, is a provision meant to limit intermediary liability in cases involving unlawful content, is now at the heart of a legal challenge before the Karnataka High Court. The petition, filed by X Corp (formerly Twitter), against the Ministry of Home Affairs and other government bodies over a series of notifications authorizing Nodal Officers to issue blocking orders to intermediaries. These notifications stem from an advisory issued by the Ministry of Electronics and Information Technology (MeitY) on October 31, 2023, which urged all Ministries and law enforcement agencies to adopt this approach. The advisory, as contended by X Corp., cites Section 79(3)(b) of the IT Act and Rule 3(1)(d) of the Intermediary Guidelines and Digital Media Ethics Code Rules, 2021, as the legal basis for this new model. The Petitioner contended that the notifications are beyond the scope of the IT Act, 2000 and is a clear attempt of an executive overreach, which seeks to enact a parallel content blocking mechanism without adequate safeguards. 

This article critically examines the government's use of Section 79(3)(b) to construct a parallel content blocking regime, sidestepping the safeguards of Section 69A. It questions the legality and constitutional validity of this approach, and its broader implications for digital free speech and executive accountability.

Parallel Blocking Mechanism and Safeguards under the IT Act, 2000

Section 69A of the Information Technology Act, 2000 empowers the Central Government, or its authorized officers, to direct intermediaries to block public access to online content, if it is deemed necessary or expedient in the interest of:

  • The sovereignty and integrity of India
  • Defence and security of the State
  • Friendly relations with foreign states
  • Public order
  • Preventing incitement to commit a cognizable offence related to the above grounds

Orders under Section 69A must be reasoned and recorded in writing. Any non-compliance can result in imprisonment of up to seven years and a fine, making it mandatory for intermediaries to comply with such directions. Further to operationalize this provision, the Government notified the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (“IT Blocking Rules”), which lay down the detailed procedure for issuing blocking orders. Two main mechanisms exist under the IT Blocking Rules:

A Designated Officer examines blocking requests received from government departments- nodal officers for the same have been appointed by each ministry. A notice is issued to the intermediary or user (in India or abroad) for a hearing or written response. A review committee then assesses whether the content falls within the scope of Section 69A and recommends action to the Secretary, MeitY, who has the final say. In urgent cases, the Designated Officer may submit a request directly to the Secretary with recommendations. If satisfied, the Secretary may issue interim blocking orders without a hearing. This must be reviewed by the committee within 48 hours, after which the Secretary passes a final order.

However, the parallel blocking regime enacted by Meity seeks to rely on misinterpretation of Section 79(3)(b) and places an onerous burden on the Intermediary platforms. Section 79(3)(b) to this end states that  any immunity conferred is contingent upon intermediary adhering to due diligence and other guidelines as may be prescribed, and upon “ receiving actual knowledge, or on being notified by the appropriate government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act” and on expeditiously disabling access to that material on that resource without vitiating the evidence in any manner.  

Evidently, Section 79(3)(b) merely sets out an instance where safe harbour may be lost in cases of failure to act, and cannot be interpreted as a repository of independent blocking powers. Its function is limited to defining the boundaries of immunity for intermediaries; it does not automatically create any substantive obligation or confer authority on the executive to mandate takedown of content. By threatening the withdrawal of safe harbor protections for non-compliance, the very shield meant to protect the intermediary platforms is being utilized to compel take-down. The nodal officers appointed under MeitY’s directive are being provided with unfettered powers to inundate social media intermediary platforms to remove information or suffer consequences. This undermines both the procedural safeguards laid down under Section 69A and the substantive protections for free expression under Article 19(1)(a). The Division Bench of Delhi High Court in Amazon Seller Services Pvt. Ltd. v. Amway India Enterprises Pvt. Ltd. & Ors., has affirmed that Section 79 is an affirmative defense and not an enforceable provision. Thus, notifying an agency as a Nodal Authority under Section 79(3)(b) or Rule 3(1)(d), does not grant any authority beyond what is already conferred upon the entity in the parent act.

It is notable that that the Supreme Court of India in Shreya Singhal v. Union of India, had assented to the constitutionality of the 69-A only after taking note of the safe-guards implicit therein. 

"109. It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision with several safeguards. First and foremost, blocking can only be resorted to where the Central Government is satisfied that it is necessary to do so. Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution.

110. The Rules further provide for a hearing before the Committee set up - which Committee then looks into whether or not it is necessary to block such information. It is only when the Committee finds that there is such a necessity that a blocking order is made. It is also clear from an examination of Rule 8 that it is not merely the intermediary who may be heard. If the "person" i.e. the originator is identified, he is also to be heard before a blocking order is passed. Above all, it is only after these procedural safeguards are met that blocking orders are made and in case there is a certified copy of a court order, only then can such blocking order also be made. It is only an intermediary who finally fails to comply with the directions issued who is punishable under sub-section (3) of Section 69A."

Furthermore, it is a settled principle of law that when a power is conferred to do a certain thing in a certain way, the thing must be done in that way or not at all. Any other method of performance is necessarily forbidden. In this light, when an information blocking order has to be passed by following procedure, the executive is forbidden from enumerating another process while ignoring the necessary safeguards therein.  

Interpreting Section 79(3)(b) r/w Rule 3(1)(d) of the IT Rules, 2021: A Disquieting Expansion of Governmental Power

As discussed, the rationale behind upholding the constitutionality of Section 69A in Shreya Singhal, the government power to block information only in specific and limited scenarios prescribed under Section 69A(1), such as in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign States, and public order. However, Rule 3(1)(d) departs from this narrow tailoring by introducing a significantly broader ground— “or any information which is prohibited under any law for the time being in force.” 

an intermediary, on whose computer resource the information is stored, hosted or published, upon receiving actual knowledge in the form of an order by a court of competent jurisdiction or on being notified by the Appropriate Government or its agency under clause (b) of sub-section (3) of section 79 of the Act, shall not host, store or publish any unlawful information, which is prohibited under any law for the time being in force in relation to the interest of the sovereignty and integrity of India; security of the State; friendly relations with foreign States; public order; decency or morality; in relation to contempt of court; defamation; incitement to an offence relating to the above, or any information which is prohibited under any law for the time being in force:

This addition goes beyond the specific and constitutionally recognized grounds listed in Section 69A(1). Unlike the targeted concerns, such as sovereignty, public order, or security of the state, this catch-all phrase allows blocking of information based on potentially any statutory provision. By doing so, Rule 3(1)(d) dilutes the strict limitations that justified the constitutional validity of Section 69A in Shreya Singhal. The broader language of Rule 3(1)(d) extends obligations beyond what is prescribed under the parent act. Such delegated legislation, which goes beyond the scope of the enabling Act, is impermissible as per the settled law.

Further, the grant of powers to the police personnel or any other authorized officer would result in a state where such personnel would determine the “unlawfulness” of such content, without any adjudication as to the nature, veracity, or violation of applicable law by any Court of law. ln Amish Devgan v. Union of India, the Supreme Court opined on what entails the determination of an “unlawful” content. The Court stated that “The transcript, including the offending portion, would form a part of the ‘content’, but any evaluation would require examination and consideration of the variable ‘context’ as well as the ‘intent’ and the ‘harm/impact’. These have to be evaluated before the court can form an opinion on whether an offence is made out. However, it is likely that the orders passed by authorized officers would not undertake any analysis of the impact, defenses, etc., before issuing blanket removal orders, thereby also violating principles of natural justice by not affording affected users an opportunity to be heard. Such glaring lack of procedural safeguards would also result in such users being unaware of the reasons why their content has been taken down. 

Recently, SFLC.in has also filed a writ petition before the Supreme Court, which, amongst other things, also challenged the arbitrary takedown of online content without affording content creators a right to be heard. The petition emphasizes that such actions violate fundamental principles of natural justice and the constitutional right to free speech. Notice has been issued in the matter, and the Court, on the first hearing, also orally observed that if users are identifiable, they must be provided an opportunity of being heard. Furthermore, by implementing such a parallel takedown mechanism, the Government appears to be stifling public participation and sanitizing the public narrative. For instance, the Ministry of Railways reportedly issued a takedown order directing platform X to remove videos of stampedes, which is crucial for public awareness and accountability. Such actions not only suppress citizen engagement but also raise serious concerns about the selective visibility of information and the erosion of democratic discourse.

A crucial dimension of free speech and individual rights arises, particularly when law enforcement authorities such as the state police direct intermediaries to remove online content. While such directives may technically fall within the scope of Rule 3(1)(d) of the IT, Rules 2021, they often exceed the limited intent of Section 69A of the IT Act, which permits content takedown only under specific circumstances like national security or public order. The problem becomes even more serious when such directions are issued without any preliminary investigation or judicial oversight, allowing the police to act unilaterally in curbing speech. In cases where the content criticizes the police themselves, this unchecked power raises serious concerns of conflict of interest and misuse. 

Conclusion: The Quiet Power Grab

The Government appears to be engineering a blocking mechanism that deliberately sidelines the user, effectively erasing them from the equation. Such a framework precludes the user from receiving notice or being afforded an opportunity of hearing before the issuance of a blocking direction. This not only undermines the principles of natural justice but also contravenes the constitutional guarantee of procedural due process. In doing so, it crowns itself as the sole arbiter of deciding what content the public may or may not see, based on its subjective perception of what qualifies as “unlawful.” Crucially, this determination often lacks transparency; for example, the alleged offence may not exist in the real world, and the content in question could very well be fictional or satirical. Yet, this does not deter the issuance of takedown orders, leaving platforms as passive executors of opaque 79(3)(b) requests by state machinery. 

The role of the platform would also raise concerns which has been highlighted by Mr. Seervai’s arguments in Kunal Kamra v. Union of India, which resonated powerfully with Justice Patel. “An intermediary will do anything to retain safe harbor. It will bend the knee to a government directive regarding content. Its business depends on safe harbour and immunity from prosecution for hosted content. Between safe harbour and users’ rights regarding content, the intermediary faces a Hobson's choice; and no intermediary is quixotic enough to take up cudgels for free speech. Compromising one particular chunk of content is a small price to pay; better the user content is thrown under the bus than having the bus run over the entire business.” In allowing state authorities to dictate takedowns without due process, and platforms to comply without resistance, the law has been quietly re-engineered into a tool of censorship. As Justice Patel, echoing Mr. Seervai’s argument, said: “Better the user content is thrown under the bus than having the bus run over the entire business.”