The authors, Vaibhav Singh Tiwari and Harshit Pathak are students of Dharmashastra National Law University, Jabalpur.
Recently, a social media platform, X Corp., has moved to the Karnataka High Court, challenging the way central and state governments are issuing orders under Section 79(3)(b)) of the Information Technology Act, 2000 (“IT Act 2000”) to block content on its platform. X has alleged that the central government is misusing its Sahyog portal and termed it a ‘censorship portal’ highlighting the conflict between Section 69A and Section 79 of the IT Act. Although the central government argues that the section 79 regime does not envisage any blocking order but merely due diligence, even then these notices create a strong threat for platforms due to losing “safe harbour” protection under rule 7 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (“IT Rules 2021”), creating a chilling effect on free speech. This has once again intensified the legal dilemma between digital platforms and state-imposed restrictions.
This piece is divided into five parts. Part I critically examines the dichotomy between Section 69A and Section 79 of the Information Technology Act. Part II delves into the constitutional analysis of the “Sahyog portal.” Part III analyses the chilling effect of this dichotomy on free speech. Part IV of the article advocates for a proportionality approach in digital media policies, and finally Part V concludes.
The Conundrum of Section 69A and Section 79 IT Act
The controversy surrounding X (a social media intermediary) has recently highlighted the conflict between Section 69A and Section 79 of the Information Technology Act, wherein the government is invoking Section 79(3)(b) to restrict public access to information, bypassing Section 69A, which mandates strict procedure for restricting access.
Section 69A of the IT Act, 2000 is the primary provision that provides power to the central government to restrict public access to any information generated, transmitted, received, stored or hosted on any computer resource if it deems it necessary or expedient in light of the reasonable restrictions under Article 19(2). Importantly, the provision mandates compliance with the procedural safeguards laid down in the IT (Procedure and Safeguards for Blocking Access of Information by Public) Rules 2009 (“IT Rules 2009”) must be complied with by the government, such as the requirement to provide reasons for blocking, adherence to the review mechanism and due process as mandated under Section 69 A and Rule 8 of the IT Rules 2009. The Supreme Court (“SC”) in the case of Anuradha Bhasin v. Union of India held that the aim of Section 69A is not to restrict/block access as a whole, but rather to block the access of a particular website, and such power should not be exercised generally due to its limited scope.
Conversely, Section 79(3)(b) of the IT Act, which provides for the same power, does not lay down any procedural requirement. Instead, Rule 3 of the IT Rules 2021 provides that upon a court order or government notification, the intermediaries must remove such information, failing which safe harbour protection will be forfeited.
The conundrum between Sections 69A and 79 exists due to their differing mandate of procedural safeguards and the limited scope of exercising powers to regulate information compared to Section 79 . The central government, due to the absence of such safeguard measures, takes action under Section 79 to evade accountability by bypassing the procedural requirements of Section 69A. Additionally, due to the threatening and coercive nature of Section 79 ,through its safe harbour protection, intermediaries feel obligated to take down information.
The government’s invocation of Section 79 t to take down the information rather than Section 69A, as highlighted by X, is a colourable exercise to override the procedural safeguards such as reasons for blocking, review mechanism and adherence to the due process as mandated under Section 69A of the Act and Rule 8 of the IT Rules 2009. The doctrine of abuse of administrative discretion provides that the power of discretion should be exercised according to procedural and legal grounds and must be in pursuance of the objective for which such discretionary power is granted. It declares every misuse of administrative power, such as mala fide actions, colourable exercise of power, etc., as null and void. Thus, it restricts the government and public bodies performing executive functions from arbitrarily evading the mandate of law by bypassing the procedural requirements. The government, in the present issue, is bypassing the procedural requirements of a reasoned order under Rule 8 by invoking Section 79(3)(b) of the IT Act, which does not require complying with a regulatory mechanism for blocking and therefore, such executive action should be held null and void.
Article 19(1)(a) provides for freedom of speech and expression subject to reasonable restrictions on exhaustive grounds provided in Article 19(2) of the Constitution. The Supreme Court in, Romesh Thappar v. State of Madras, held that freedom of speech is the cornerstone of democracy. The right to free speech includes the right to receive and transmit information, which has been violated due to the malicious intent of the government in taking down information without following due process and procedural safeguards. The government’s misuse of Section 79(3)(b) is evident because it restricts political deliberation restricting the lawful and negative criticism of the government. The government’s justification on the grounds of public order will not prevail due to the non-fulfilment of test of clear and present danger to public order which cannot t be ascertained without following the procedural requirements laid down in the Section 69A and IT Rules 2009. Therefore, the government’s actions clearly violate freedom of speech, and the court should hold such executive actions to be unconstitutional.
Additionally, such circumvention of law is done by the legislature capriciously and irrationally to restrict the free speech of citizens as there exists no intelligible differentia to prefer Section 79(3)(b) over 69A and there exists no rational nexus with the objective of curbing misinformation or disinformation that is sought to be achieved through such differentiation. Thus it amounts to unreasonable classification and is violative of Article 14 of the Constitution of India, as observed in Association for democratic reforms v. Union of India (2024) (“Electoral Bond Case”).
The Sahyog Portal: A Step toward a Digital Authoritarian Regime
The horizons of Free Speech have constantly expanded in the recent past, which calls for a regulatory mechanism for digital media, but not at the expense of fundamental rights. The policies of governments for regulating digital media, such as t Fact-Checking Units and UP Digital Media policy for regulating hate speech, have been criticised for their authoritarian and arbitrary approach. This is further exemplified by the recent sahyog portal, which aims to automate the process of sending intermediaries take-down notices under Section 79(3)(b) of the Act.
The portal has been criticised by various intermediaries and Civil Society Organisations as a censorship mechanism due to the absence of procedural safeguards under Section 69A of the IT Act. Additionally, there exists vagueness regarding the functioning of the portal, as no framework has been provided, which raises concerns of discriminatory application and manifest arbitrariness. The Supreme Court in the case of Shreya Singhal v. Union of India (“Shreya Singhal”) held that the restriction should be narrowly tailored and interpreted to abridge or restrict only what is absolutely necessary, and the restriction must fall under a reasonable restriction under Article 19(2) of the Constitution. In the Sahyog portal, due to vagueness in procedural requirements, it vests enormous power in the hands of the central government, thereby breaching the permissibility of restrictions that can be imposed under Article 19(2).
The Court, in Kunal Kamra v. Union of India highlighted that the government’s constitution of the Fact-Checking Unit empowered to unilaterally identify the information available on intermediary platform as fake, false or misleading, fails the test of proportionality and imposes a form of self-interested censorship. The Sahyog portal developed to automate the process of sending take-down notices to intermediaries by the appropriate government or its agency to facilitate the removal or disabling of access to any information, data or communication link used to commit an unlawful act, stands on the same pedestal as the Fact-Checking Unit. The Fact-Checking Unit was granted unchecked government control by the Central Government which undermines public discourse, limits access to diverse viewpoints and restricts freedom of speech and expression. Similarly, the Sahyog portal authorises the government to exercise power under Section 79(3)(b) whereby it can also direct intermediaries to block any information which is rightfully critical of the government, and non-adherence will otherwise render their safe harbour immunity inpplicable. The government, by evading the procedural safeguards under Section 69A of the IT Act through the Sahyog portal, follows a similar authoritarian approach and could significantly act as a chilling effect on the free speech of citizens due to uncertainty regarding procedural safeguards. Thus, it prima facie takes away guaranteed freedoms and is not limited to reasonable restrictions under Article 19(2) of the Constitution.
Chilling Effect of Conundrum on Free Speech
The absence of a structured review mechanism and the ambiguous nature of section 79 create arbitrariness, giving space to the government for digital censorship and discouragement of lawful expression, creating a chilling effect on expression of free speech. This creates scope for subjective interpretations of the rules and potential discriminatory applications. Digital platforms have replaced traditional platforms like news and print media, and have become a new public sphere for expression. The government could take advantage of the ambiguous nature of section 79, due to the absence of a clear standard to determine illegality and control these platforms, which may ultimately shrink the space for public expression and dissent. The doctrine of “void for vagueness” underscores the constitutional infirmity of such ambiguous provisions. In State of Madhya Pradesh v. Baldeo Prasad (“Baldeo Prasad”), the SC invalidated the law for a vague definition of the term “goonda”, emphasising that the law should provide a clear definition to prevent arbitrary enforcement. Similarly, in K.A. Abbas v. Union of India, the court observed that vague definitions could lead to arbitrary censorship. Thus, delegating the power of content regulation by the state to intermediaries without clear guidelines effectively bypasses the due process requirement, as observed in Shreya Singhal. This may also induce the digital platforms to adopt preemptive “self-censorship” of the content, owing to the risk of losing “safe harbour” protection, granted under section 79. The chilling effect arising out of the ambiguous nature of the provision results in degradation of public expression, restricted political discourse, and will devoid people of the liberty of thought and expression. Thus, without clear judicial oversight and procedural safeguards, India could slide into “digital authoritarianism”.
Need for a Proportionality Approach in Digital Media Policies
While the government attempts to justify its restrictive digital media policies under the guise of combating hate speech and misinformation, in reality, such a law serves as a de facto tool for digital censorship. Section 69A only allows content blocking after a structured review, whereas Section 79 permits virtual takedowns without any reasoning, thereby bypassing the procedural safeguards under Section 69A. The action under Section 79 becomes disproportionate as it lacks a less restrictive alternative and precision in defining the scope of permissible takedowns. Applying the test of proportionality here would prevent Section 79 from becoming a disproportionate way of censorship.
Proportionality has been adopted worldwide as a gold standard for adjudicating limitations on fundamental rights and maintaining “due process” by ensuring that the government restrictions on fundamental rights are justified and least intrusive. Thus, when courts apply the proportionality test, if any law, under Article 19(2) and 14, curtails the freedom of expression, then it must bear a legitimate aim, a rational nexus, necessity, and least intrusive means (Gujarat Mazdoor Sabha v. State of Gujarat). The SC has repeatedly stressed these tests for any law that aims to limit free expression. In Shreya Singhal, the SC struck down Section 66A of the IT Act because its prohibitions were undefined and thus led to vagueness. Similarly, the Bombay HC invalidated the government’s Fact-Check Unit under IT rules 3(1)(b)(v), as it failed to prove the tests of proportionality and lacked procedural restraints.
When the government raises the argument of “legitimate state aim”, the court scrutinises both the substance and form of the restriction imposed. This scrutiny requires that if a law imposes a restriction, it must contain certain objective criteria (as observed in Baldeo Prasad), which is the essence of the void-for-vagueness doctrine, as a check for unguided and arbitrary application of vague definitions. Similarly, the SC in Anuradha Basin v. Union of India observed that a blanket ban on the internet cannot be granted merely on the ground of legitimate state interest, and any such ban should be substantiated by certain time limits. Thus, Proportionality balances individual interest vis-à-vis larger state interest, and thus harmonises the content-based restrictions imposed on the fundamental right of the citizens. In the absence of proportionality, section 79 of the IT Act operates within a structural paradox, where its objective is to provide “safe harbour protection”, but it gives a scope for exercising arbitrariness.
The Way Ahead
In India, the regulatory framework around digital media platforms, particularly section 79 of the IT Act and IT Rules, 2021, operates in an ambiguous space through the Sahyog portal, which raises concerns of “arbitrariness”. This allows the government to bypass the “procedural safeguards”, ultimately subduing the “due process of law”. One of the potential threats of such ambiguity could be selective enforcement of the regulations, based on “political or ideological considerations”. This ambiguity and very selective enforcement could result in “preemptive self-censorship” by the digital media platforms, leading to chilling effect on free speech and expression. The authors believes that, institutionalizing proportionality-based safeguards can curb the “uncertainty with clarity” and ensure the “due process mechanism” in digital platforms.
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