INTRODUCTION
In India, the legal framework for regulating online speech relies on two provisions, operating in different legal contexts, yet are increasingly converging in practice. The Information Technology Act, 2000, Section 69A, allows the Central Government to block the public’s access to certain information using a computer resource. Section 79, on the other hand, provides an intermediary with a limited degree of immunity from third-party content, thus, creating a fusion scheme in which there are three components: constitutional norms, administrative process, and platform governance which operate in the dark and the executive has an increasing number of dependencies on intermediaries.1
Distinction between blocking and safe harbour is clear in law, but is extremely weak when looking at practice. Section 69A is an uncoercive public law power that directly inhibits access to information, and Section 79 is a defense that is due to a combination of a neutral, non-abridged defense. After compliance, rules, and platform-oriented notices, the State is more likely to have operations to obtain private removals using informal means in addition to 69A. The real issue is whether the executive has been able to create ways of informal speech control through the rules that operate in the background of the framework that is constitutionally conditioned.
This Article uses doctrinal legal research to provide an answer to the legal research question that has been posed, but specifically in the Indian context. It studies the Information Technology Act of 2000, 2009 Blocking Rules, 2021 Intermediary Rules, and later amendments, alongside the case laws that have contributed to the development of modern laws pertaining to blocking, intermediary duties, and judicial recourse. The Article also posits that Indian courts have recognized Section 69A as the only legislative channel for direct state interference in blocking, but have been unable to contain the shift of blocking pressure in the language of due diligence, compliance, and executive alignment under Section 79.
CONSTITUTIONAL STRUCTURE OF DIGITAL SPEECH REGULATION
The hindrance of constitutional speech design in the Indian digital speech context depends on the protection of functional differentiation for restriction, immunity, and review. This design becomes precarious when the executive opinion equates to compliance of gateway digital speech as an all-encompassing approach, rather than separating the powers with distinct constitutional burdens.
A. Freedom of Speech, Reasonable Restrictions, and Digital Specificity
The floor of constitutional protection for online speech is determined by Article 19(1)(a) of the Indian Constitution. Law-related online speech protection shall be afforded the same measure of protection as speech in print or television media. The sources of restrictions on such speech is provided in Article 19(2) through (6).2 Gautam Bhatia demonstrates the ability of the Indian Free Speech Doctrine to declare the protection of speech conditional on the requirement of imposition of restrictions on speech for the purpose of the state’s legitimate interest, coupled with a demand for precision and narrow focus of such restrictions declared to be conditional on the almighty constitution. In the digital domain, those conditions hold more relevance in a sense that the scale and architecture of the digital speak domain allow the incidence of restraint to>
B. Section 69A as a Statutory Power of Direct Restraint
Posted in the context of the Indian Constitution, the issue is not whether the State should be able to control the flow of speech, but to what extent. The state is empowered to control access to the information for the reason of protection of India’s sovereignty and integrity, security of the state and relations with foreign states, maintenance of public order, and prevention of the incitement of cognizable offences of such nature under Section 69A.3 The Information and Technology (Procedures and Safeguards for Blocking of Access of Information by the Public) Rules, 2009, provide for a committee-based structure for blocking access to information by the public and emergency blocking of information by the public.4 In a constitutional sense, the validity of the scheme in the country depends on the placement of such safeguards so that affected users, intermediaries, and reviewing courts are able to see the safeguards.
C. Section 79 as Conditional Immunity, Not an Independent Censorship Power
Section 79 has a different purpose and is unable to allow the State to inhibit speech. Instead, Section 79 protects intermediaries from liability for third-party information when they satisfy the requirements and act as neutral facilitators. Some examples of regulation by architecture, such as Lawrence Lessig’s, are helpful here, because they illustrate the lengths to which governments may go to adjust private technical intermediaries to fulfill roles of enforcement for the government, instead of doing the task themselves.5 The presence of this degenerative structural relationship is not eliminated by the statute. Section 79 can impact incentives, but cannot become an independent, legally sanctioned, abuse of blocking authority, as this would allow the choice to legislate restraints directly within Section 69A and its controls to be violated.
JUDICIAL CONSTRUCTION OF SECTION 69A
Courts try to uphold what they see as legitimate constraints on digital regulation, without giving in to unrestricted regulation by the executive. Thus, what courts have to say about the 69A provision demonstrates a similar pattern. Courts not only grant the possibility to block, they also state that this would have to happen in compliance with procedural discipline, the constitution, and be subject to review.6
A. Shreya Singhal and Others v. Union of India
The Supreme Court decision in Shreya Singhal and Others v. Union of India7 provides an important context. The Court struck down Section 66A of the Information Technology Act, 2000 for vagueness and for its chilling effect, but maintained Section 69A since it was more specific and had a norm construction and a recordkeeping of reasons and a hearing process. Madhavi Goradia Divan’s views of the media regulatory framework describes the exception: speech restrictions can only survive if there is a clear legal source and procedural standards that make them challengeable.8
B. Notice, Reasons, and the Problem of Confidentiality
The complication is that Section 69A operates within a context of norm. It’s a MacKinnon Principle. The extension of this principle is that a lack of publicly available reasons for an action insulates the action and its actors from liability.9 And from a loss of rights. MacKinnon and her co-authors discuss this within the Internet Intermediaries frame. If there is no disclosure or an absence of reasons for the blocking, or if the hearing and the right to be heard is of no value, the judicial review, which is an end in itself, is a form of self-justification for the administration. The problem of the rule of law is not a problem of the end. It is a problem of the means. It is a problem of the process. And the means. And the channel.
C. Account-Level Blocking and the Shift to Platform-Wide Restraints
The Karnataka High Court’s decision in X Corp v. Union of India10 legalized some blocking orders. It also ruled that Section 69A can allow account-level blocking, in addition to block orders that are limited to tweets. This decision is important in leading the law from specific targeting to complete exclusion. Laidlaw writes that powerful intermediaries impact the design of law to remedy law’s impact. Blocking an account is different from blocking a tweet. There is a risk of suppressing lawful expression by disabling the institutional space in which future speech occurs.11
D. Remedies in Writ Jurisdiction
A blocking order that is unlawful and/or overbroad can be challenged in a constitutional court, and an argument can be made in relation to the court’s jurisdiction, failure to give reasons, procedural errors, loss of proportionality, or the necessary relationship to Article 19(2). However, jurisdiction is dependent on the court’s jurisdiction. Ratio and Kettemann and Tiedeke write that there should be an account of the reinstatement of the platform and impact litigation, and that an order that allows someone to see the court is a court of that order. In India, the same logic applies. If a litigant has to find the order, then that order is already a weak order.12
E. Blocking Practice in Institutional Data
The official data exemplifies the routine nature of blocking digital content. In a Lok Sabha question answered by the Ministry of Electronics and Information Technology, it was stated that as per Ministry of Information and Broadcasting, instructions to block 2,799, 3,635, 9,849, 6,096, and 6,775 URLs were issued in 2018, 2019, 2020, 2021, and 2022. Figure 1 illustrates that in 2020, the spikes of blocking in 2020 were not followed by a return to low volume blocking.13 High annual totals are now a normal characteristic of digital governance, which enhances the demand for publication, rationale, and review.
Figure 1. Annual directions blocking URLs under Section 69A, 2018 to 2022.
The data disclosed by parliament indicates an uninterrupted rise in 69A blocking beginning in 2020. The data suggest blocking is no longer a rarely used emergency mechanism but has become a persistent mechanism of executive control over the digital space.
SECTION 79 AND THE CONDITIONAL NATURE OF SAFE HARBOUR
As for India’s intermediary liability, the law is based on the premise that social media firms are not liable for everything their users say. But the immunity is conditional, and the conditions of the immunity are changing, becoming increasingly difficult, with courts and regulators moving from a model of merely hosting to a model of actively engaging in hosting by the platform.14
A. The Shreya Singhal Reading of Actual Knowledge
The most important part of the Shreya Singhal15 for intermediary liability was the Court’s reading down of Section 79(3)(b). The Court was of the view that “actual knowledge” could not mean a slew of informal notices from private complainants. “Actual knowledge” had to be anchored to a Court order or a Government request that may be justified on the basis of Article 19(2). This was important so that private assertion or administrative pressure could not dislodge protected expression. Graham Smith’s treatment of intermediary liability likewise stresses the need to connect notice-based duties with legally cognisable authority.16
B. Copyright and Marketplace Cases
The subsequent decisions of the Delhi High Court delineated the boundaries of Section 79 in the context of commerce. In My Space Inc. v. Super Cassettes Industries Ltd.17, the Division Bench refuted the proposition that an intermediary is required to have a general ex ante monitoring regime for all of the content that is uploaded. In Kent RO Systems Ltd. v. Amit Kotak18, the Court also did not impose a general ex ante monitoring obligation on the e-commerce platforms. Here, an analysis of Indian copyright safe harbours demonstrates that the law is wary of transforming intermediaries into perpetual monitors.19
C. Active Participation and the Erosion of Immunity
The decision in Christian Louboutin SAS v. Nakul Bajaj and Others20 altered the balance in favor of traditional IP protection mechanisms. The court stated that an electronic commerce platform that involves the promotion to the consumers, provides a no-haggle guarantee of authenticity, or does anything else that could be considered as materially facilitating the sale of goods, in an environment where the sale of goods violates the legal norms, could lose the protection of Section 79. The ruling did not eliminate safe harbour, but did restrict its scope where active participation is shown.21
D. Criminal Process, Reputation, and Platform Responsibility
The judgment in Google India Private Limited v. M/s Visaka Industries Limited22 left room for argument that an intermediary’s position may be examined assuming the facts are available; this judgment may also be extended to the circumstances surrounding (allegedly) defamatory publications. Interrogating Lilian Edwards’ explication of the responsibilities of intermediaries: the safe harbour provision does not mean intermediaries are legally ‘innocent’ of the crime that placed them in the safe harbour provision.23
RULE-MAKING OVERREACH AND COMPLIANCE ARCHITECTURE
The modern-day discussion is about more than just how laws are interpreted. It’s about how delegation of legislative power is used along with executive coordination mechanisms to controversially redistribute the practical consequences of legislative speech-control power as a result of the absence of adequate parliamentary justification or constitutional protections.24
A. The 2021 Rules and the Expansion of Due Diligence
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 converted what used to be basic due diligence to a very elaborate and complex code of conduct, and in turn, a code of governance that mandates a grievance officer, compliance, and multiple touchpoints with the user for notifications and complaint mechanisms. The Internet and Mobile Association of India’s research said that compliance with these rules is burdensome, confusing and unclear as to the scope of compliance or liability.25 These concerns are valid as Section 79 is a safe harbour and not an empty charter for unlimited executive content control.26
B. Fact-Checking and Ultra Vires Concerns
The 2023 amendments for government-controlled fact-checking were challenged in the Bombay High Court in Kunal Kamra v. Union of India27. The court found that the amended Rule 3(1)(b)(v) was beyond the boundaries of constitutional validity. It undermined the parent statute because the government was allowed to judge the realm of falsity regarding its own actions, while also causing serious consequences to intermediary non-compliance. Emily Laidlaw’s monograph on gatekeepers and human rights is useful because it clarifies why private intermediaries cannot be treated as simple conduits when public law duties are imposed through them.28
C. Rule 3(1)(d), Sahyog, and the New Compliance Channel
Next, the controversy revolves around the delegation of authorized agencies under Rule 3(1)(d) and the Sahyog compliance scheme. The 2025 Press Information Bureau update on the amendments to Rule 3(1)(d) claimed to introduce added safeguards and clarity on the removal of unlawful content. However, in the X Corp v. Union of India29 case, the Karnataka High Court upheld a broad interpretation of the compliance framework and claimed that traditional blocking mechanisms were still governed by Section 69A.30
D. From Safe Harbour Conditions to Informal Removal Pressure
Dan Svantesson claims that content moderation may be improved if the focus is on competence, legitimacy, and procedures that determine the scope and limits of moderation, instead of the ad hoc improvisation that many policymakers fall back on when they are overwhelmed with the scale of the moderation task. This is the situation India currently finds itself in. The constitutional burden begins shifting to private risk, and the only answer to that burden is a framework for moderation that fast-removes content in compliance with broadly defined legal claims. Therefore, the answer isn’t to prevent the State from using digital regulation, but to require the State to adhere to the same procedural laws if regulation is in the same block-justifying category.31
E. Platform Compliance Data and the Drift Toward Quasi-Adjudication
Data on platform reporting shows the extent of the need for regulation that sits somewhere between adjudicative and quasi-adjudicative, outside of the formal scope of the Section 69A process. In the India transparency report for the period of 26 Nov – 25 Dec in 2024, X documented thousands of complains for abuse and harassment; circumvention of bans; misinformation and media that is manipulated; media that is hateful; defamation; privacy and the regulation of adult content, with actions taken for the cited URLs. Figure 2 provides a look at the discrepancy between the number of received complaints and the number of actions taken in response.32 The argument is that such actions aren’t unlawful. What has been adopted instead are grievance systems that are taking the regulatory work of adjudication to be public, often performed in secret, with no reasons given and no review system provided.
Figure 2. X India grievances received and URLs actioned by category, reporting period 26 November to 25 December 2024.
Category-wise comparison indicates that different types of harms in India result in a high volume of complaints and a wide variety of response selective action rates. This suggests that intermediary compliance systems are taking on quasi-adjudicatory roles in addition to (and at times in place of) formal statutory blocking.
REFRAMING REMEDIES, ACCOUNTABILITY, AND INSTITUTIONAL DESIGN
Should the current structure be upheld as constitutionally justifiable, it must be recognized that remedies are inherent to the design of power. Digital governance in a democracy relies on intermediaries’ right to know, provide account, and contest the actions of the State.33
A. Publication, Notice, and Reasoned Orders
The first necessary reform is publication. Blocking orders should be made public in a redacted version or, at the very least, brought to the attention of affected originators and intermediaries with understandable explanations. Jaani Riordan’s work on intermediary liability describes how notice is neither an administrative formality nor an afterthought of the law. It has to do with the very nature of a law since it determines the ability of authors, speakers, and service providers to push the boundaries of a claimed obligation. In India, publication would mitigate the effect of Section 69A and the silent restraints it embodies and would improve the judiciary’s review process by compelling the judiciary to focus on the actual reasons rather than the post hoc reasons.
B. Independent Review and Appellate Structure
The second reform is to improve institutional review. Under the current system, review is dependent on constitutional litigation even though it is slow, costly, and difficult in the case of confidential material. Giancarlo Frosio and Christophe Geiger have argued, in the European context, that platform liability regimes must be coupled with procedural safeguards to balance the protection of fundamental rights at the enforcement stage rather than at the post harm stage. India would benefit from an independent review and/or appellate body for blocking and notice-based removal instances – particularly when the originator is known and the removal affects core, essential, and fundamental political or journalistic interests. Such a body would not be a substitute for the constitutional courts, but would enhance the accessibility of rights.34
C. Proportionality, Least Restrictive Means, and Scope Control
The third reform is about the substantive scope of restraint. Both the law and the case law, illustrated by figure 1, show that the law has gone from only stopping the most obvious content to providing the option of stopping content at the account level or, in more extreme cases, the level of an entire platform. The law in the future should push itself more in the direction it currently only hints toward, to a position demanding the use of the least restrictive means available, content based specificity wherever possible, and a rationale to explain why wider ban content is deemed necessary. Daniel Solove is correct in that while it is possible to design the architecture of harm, reputational and/or informational, one should not be held accountable to respond to an omnibus remedy. To embrace the principle of proportionality, it is clear that the least restrictive means are the most preferred.35
D. Preserving the Distinction Between Sections 69A and 79
The most substantial, positive principled reform is the most underestimated, Section 69A. This Section should be the only route by which the state may directly intervene by means of a content ban. Section 79 should not be treated as an authority by means of ‘negotiating’ indirect censorship. There is a certain relevance to Francesca Musiani’s articulation of privatized internet governance.36 The relevance relates to the principle of the law. The more governments mandate the use of private governors/setters to build the internet, the more shabby, opaque contracts will be used in place of proper contracts. Maintaining the distinction between Sections 69A and 79 maintains the principle of law. The more state censorship, the more it undermines the legal principles that, in substance, minimize state censorship.
CONCLUSION
Indian online speech legislation may not be unconstitutional in the abstract sense, but it is undermining the constitution in practice. Section 69A is a surviving, not unconstitutional, deferring, and, questionable constitutionally privileged power, while Section 79 is an immunity enactment that is not an unrestrained judicially bound platform liability. The concern is that more recent regulations and enforcement practice have allowed the two provisions to edge closer together for a long period of time, compromising the constraints that provided the original judicial allowance.37
There has been both restraint and slippage by the Courts. Shreya Singhal and Others v. Union of India38 case saved Section 69A and read down Section 79 to defend speech. Courts ruled that speech is defended against the informal pressure of take-downs. Marketplace cases ruled that immunity cannot extend to active and unlawful activities, and justified the Courts’ position by relaxing some of the immunity. Case on unexplained blocking policy, the general case of restraint on the part of the accounts and the Sahyog litigation show that courts are struggling with the administrative burden of digital speech controls.39
The clear legal position is that Indian Courts must be willing to acknowledge the position that, when online content is to be take down, it must be done under the aegis of Section 69A and its legal safeguards. Whenever the Courts tend to push the safeguards under Section 69A and the objectives of Section 79, that must not be achieved, shaping a speech control regime, in the Courts. The speeches must be published, justified, and challenged by an independent body. The safeguard and the control must be considered at the same time.40
SUGGESTIONS
The issues discussed above call for practical reforms that improve legality, transparency, and remedy without disabling legitimate regulation of harmful online content.
1. Publish Redacted Blocking Orders: After the issuance of Section 69A orders, the Central Government should release them in redacted form by a specific deadline. This would let everyone from users to courts to analyze the orders to see what legal basis the government argues under, what the orders specifically are, and the proportionality of them.
2. Mandate User and Originator Notice: Name-based notice should be provided to the person or entity where identity, or in general, whose identity should, in some sense, be ascertainable. Such a framework is important because restrictions cannot be challenged where there is general non-disclosure, or where there is just communication to the intermediaries.
3. Require Reasoned Necessity Findings: Every blocking order should state the necessity of this measure, how it pertains to an Article 19(2) justification, and state why there are no other less restrictive alternatives. This will transform the proportionality argument from a post facto legal argument to a routine administrative concern.
4. Create an Independent Digital Review Body: India should create an appellate or review mechanism separated from the issuing department to address the challenges against blocking orders and removals based on high-impact notices. This would reduce the over-reliance on constitutional court writ jurisdiction and improve the access to Lancaster.
5. Confine Account-Level Blocking to Exceptional Cases: Complete blocking of accounts, handles, or channels should only be allowed when it is justified that item-specific restraints do not meet technical or legal standards. This would decrease suppression of lawful speech and support the least restrictive means principle.
6. Preserve Section 69A as the Sole Blocking Route: To ensure the provisions of Section 79 and subordinate regulations do not become an add on blocking authority, courts and lawmakers should carve out terms ensuring that while safe harbour provisions can control intermediary behavior, they should not remove the legal protections from formal blocking.
7. Clarify the Meaning of Active Participation: Judicial and regulatory standards ought to draw a clearer line between neutral hosting and unlawful intermediation. Preserving the status quo for intermediation and innovation is critical. Standards ought to be sharper to preserve liability for participatory wrongdoing.
8. Standardise Transparency Reporting: Intermediaries ought to provide standardised reports of court orders, Section 69A directions, Rule 3 notices, voluntary policy enforcement, and actions in response to grievances separately. The division would improve discernment of the boundaries between public authority and platform discretion.
9. Limit Delegated Rule-Making to Statutory Functions: Before amendments to the Intermediary Rules are notified, they should be assessed for alignment with the parent Act and speech provisions of the Constitution. This may help to contain the extent to which lack of legislative guidance allows the executive to impose speech limiting duties on State agencies for the sake of broad and vaguely worded objectives.
10. Strengthen Judicial Scrutiny of Opaque Processes: Constitutional courts should, in cases of digital speech, consider the fact of secrecy and the lack of reasons and evidence as weighing/defer to purposes. It should be in the interest of the courts to relieve the burden of the speaker in a restriction of the status quo and preserve the principle of the State’s obligation to the greatest extent.
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Footnotes
1. The Information Technology Act, 2000 (Act 21 of 2000), ss. 69A, 79.
2. Gautam Bhatia, Offend, Shock, or Disturb: Free Speech under the Indian Constitution 118 (Oxford University Press, New Delhi, 1st edn., 2016).
3. Supra note 1.
4. The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, rr. 8, 16.
5. Lawrence Lessig, Code: Version 2.0 78 (Basic Books, New York, 2nd edn., 2006).
6. Durga Das Basu, Commentary on the Constitution of India 212 (LexisNexis, Gurgaon, 9th edn., 2018).
7. (2015) 5 SCC 1.
8. Madhavi Goradia Divan, Facets of Media Law 226 (Eastern Book Company, Lucknow, 3rd edn., 2022).
9. Rebecca MacKinnon, Elonnai Hickok, et.al., “Fostering Freedom Online: The Role of Internet Intermediaries” 25 (UNESCO, 2014).
10. W.P. No. 13710 of 2022 (Karnataka High Court, June 30, 2023).
11. Emily B. Laidlaw, “A Framework for Identifying Internet Information Gatekeepers”, 24 International Review of Law, Computers & Technology 263 (2010).
12. Matthias C. Kettemann and Anna Sophia Tiedeke, “Back Up: Can Users Sue Platforms to Reinstate Deleted Content?”, 9 Internet Policy Review 1 (2020).
13. Ministry of Electronics and Information Technology, “Lok Sabha Unstarred Question No. 1064, Blocking Access to Online Content” (February, 2023).
14. Jaani Riordan, The Liability of Internet Intermediaries 164 (Oxford University Press, Oxford, 1st edn., 2016).
15. Supra note 7.
16. Graham J. H. Smith, Internet Law and Regulation 213 (Sweet & Maxwell, London, 5th edn., 2020).
17. 2016 SCC OnLine Del 6382.
18. 2017 (69) PTC 551 (Del).
19. Aradhya Sethia, “The Troubled Waters of Copyright Safe Harbours in India”, 12 Journal of Intellectual Property Law & Practice 398 (2017).
20. 2018 SCC OnLine Del 12215.
21. Lalitha Nandula, “Delhi High Court Excludes Safe Harbour Protection for E-Commerce Platform”, 14 Journal of Intellectual Property Law & Practice 665 (2019).
22. (2020) 4 SCC 162.
23. Lilian Edwards, Law, Policy and the Internet 142 (Hart Publishing, Oxford, 1st edn., 2018).
24. Jack M. Balkin, “Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation”, 51 U.C. Davis Law Review 1149 (2018).
25. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, r. 3.
26. Internet and Mobile Association of India, “IT Rules, 2021: A Regulatory Impact Assessment Study” 18 (2022).
27. 2024:BHC-OS:14750-DB.
28. Emily B. Laidlaw, Regulating Speech in Cyberspace: Gatekeepers, Human Rights and Corporate Responsibility 96 (Cambridge University Press, Cambridge, 1st edn., 2015).
29. W.P. No. 7405 of 2025 (Karnataka High Court, September 24, 2025).
30. Press Information Bureau, “Government Notifies Amendments to Rule 3(1)(d) of the IT Rules, 2021” (October, 2025).
31. Dan Jerker B. Svantesson, Private International Law and the Internet 184 (Wolters Kluwer, Alphen aan den Rijn, 4th edn., 2021).
32. X Corp., “Twitter India Transparency Report – Grievance Officer – India Complaints” 4 (January, 2025).
33. UNESCO, “Guidelines for the Governance of Digital Platforms” 42 (2023).
34. Giancarlo Frosio and Christophe Geiger, “Taking Fundamental Rights Seriously in the Digital Services Act’s Platform Liability Regime”, 29 European Law Journal 31 (2023).
35. Modern Dental College and Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353.
36. Francesca Musiani, “Dangerous Liaisons? Governments, Companies and Internet Governance”, 2 Internet Policy Review 1 (2013).
38. Supra note 7.
39. X Corp. v. Union of India, W.P. No. 7405 of 2025 (Karnataka High Court, September 24, 2025).
40. Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.