Since March, a legal battle with profound implications for the limits of state power and free speech in the digital age has been unfolding before the Karnataka High Court. X Corp (formerly, Twitter) has challenged the Union Government’s expansive interpretation of its content blocking powers and accused the ‘Sahyog’ portal of being an extra legal mechanism designed to circumvent statutory safeguards for censorship.
The case raises core statutory and constitutional questions. Can Section 79(3)(b) of the Information Technology Act, 2000 (IT Act) be used as a source of blocking power? If so, does that mean the government can bypass the established procedural safeguards of Section 69A? And where should courts strike the balance between the fundamental right to freedom of speech under Article 19(1)(a) and the state’s interest in national security under Article 19(2)?
The final judgment in this matter is currently pending, with the Karnataka High Court having reserved its verdict on July 19, 2025. While we await the decision, this analysis will unpack the core contentions of the case, exposing how the IT Act’s ‘safe harbour’ framework is being challenged as a censorship apparatus that undermines procedural due process. We dissect the arguments of both X Corp and the Union Government, examining how the Court’s ultimate decision could either reinforce or fundamentally reinterpret the principles established in the landmark Shreya Singhal judgment. The ultimate stakes of this case lie in a critical assessment of its ideological undercurrents, and what they mean for the future of free speech in the digital public square.
Case Background: When a Safe Harbour becomes a Censorship Apparatus
On October 31, 2023, the Ministry of Electronics and Information Technology (MeitY) issued an office memorandum authorising all central ministries, state governments and local police officers to issue information blocking orders under Section 79(3)(b) of the IT Act. MeitY further provided a ‘template blocking order’ to government agencies to issue takedown notices under Rule 3(1)(d) of the IT Rules.
The office memorandum can be read here:
The next year, on March 13, 2024, the Ministry of Home Affairs (MHA) launched the Sahyog portal, a centralized digital dashboard which allows officers from central ministries, state governments, and law enforcement agencies to issue blocking orders directly to intermediaries under Section 79(3)(b).
Does this new centralised and automated content blocking regime, created in the name of expediency, stand up to statutory scrutiny?
Statutory Framework: Content Blocking through Safe Harbour
To understand this, let us break down the provisions of the IT Act.
69A of the IT Act gives the Union government the power to issue directions for blocking public access to online information in the interest of sovereignty and integrity of India, defence of India, security of the State, and friendly relations with foreign States or public order. These cases explicitly align with Article 19(2) of the Constitution, which contains eight “reasonable restrictions” on the right to freedom of speech and expression conferred by Article 19(1)(a). Further, subsection (2) specifically requires that content blocking orders are subject to the procedural safeguards contained in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. These include a designated officer, written justification, pre-decisional hearings for intermediaries and originators, and an independent review of all orders every two months.
In contrast, the provision that MeitY has been using to issue blocking orders since 2023 is Section 79. The is a ‘safe harbour’ provision that states intermediaries are immune from liability for third-party content, provided they comply with due diligence obligations under Section 79 are detailed in Rule 3(1)(d) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules). This rule requires that an intermediary must “not host, store or publish any unlawful information” upon receiving “actual knowledge” of its existence.
Clause 3(b) of Section 79 is an ‘exception to an exception.’ It states that intermediaries lose safe harbour protection if they do not takedown content upon receiving “actual knowledge” of its unlawful nature. Since the provision was not intended to be used for content blocking, it does not lay out a formal mechanism for blocking orders, nor is it subject to the procedural safeguards outlined in the 2009 Blocking rules.
Section 79(3) (b) read with Rule 3(1)(d) provides the statutory basis for the Union Government’s new content-blocking mechanism.
The Legal Issue: A Parallel Mechanism
This brings us to the core issue in the present case. X Corp has submitted that by using section 79(3)(b) to issue content blocking orders, the Union has unlawfully created a “parallel mechanism” to circumvent the procedures and safeguards built into Section 69A.
Court filings show government agencies ordered X to remove 1400 posts or accounts between March 2024 and June 2025. More than 70% of orders were issued through the Sahyog portal. In its petition, X has cited notices targeting tweets which are satirical or critical of political leaders, news coverage of a stampede at New Delhi Railway Station, and a video linked to a sexual assault case — instances that may not meet the higher thresholds of 69A.
The writ petition can be read here:
Shreya Singhal: Due Process as a Prerequisite for Censorship
Before diving into the arguments in X Corp. v. Union of India, we must turn the clock back a decade. In 2015, three provisions of the IT Act were contested before the Supreme Court of India: Section 66A, and the aforementioned 69A and 79(3)(b). The legal principles established by the Apex Court in Shreya Singhal v. Union of India (2015) were a landmark moment in India’s digital free speech jurisprudence.
Most significantly, the Court struck down Section 66A of the IT Act, which criminalised the sending of messages deemed “grossly offensive” or “menacing”. The Court ruled that the provision was unconstitutionally “vague” and “overbroad,” and failed to provide clear notice of what conduct was prohibited. By “impermissibly delegating basic policy matters” to government officials for subjective resolution, the provision was found to invite arbitrary misuse and have a “chilling effect” on free speech.
In contrast, the Court upheld Section 69A as an information blocking power specifically because it is “a narrowly drawn provision with several safeguards.” The Court’s validation of the provision emphatically rested on the government’s strict compliance with the procedural safeguards outlined in the Blocking Rules.
The Court upheld the Section 79 as an “exemption provision,” but found that the phrase “upon receiving actual knowledge” must be interpreted narrowly to ensure that intermediaries are not forced to make subjective judgments about content. It held that this knowledge must be “through the medium of a court order.”
The Supreme Court’s pronouncements in Shreya Singhal form the foundation of X Corp’s legal challenge. The petitioner argues that the government’s use of Section 79(3)(b) and Rule 3(1)(d) circumvents very safeguards the Supreme Court deemed essential for constitutional validity.
Legal Arguments: Competing Visions for Digital Governance
At the Karnataka High Court presided by Justice M. Nagaprasanna, X Corp was represented by Senior Advocate KG Raghavan and the Union was represented by Solicitor General Tushar Mehta and Additional Solicitor General Arvind Kamath. The matrix below summarises key arguments advanced during the hearings (reported by LiveLaw).
| Issue | X Corp’s Arguments | Union’s Arguments | ||
| Nature of Medium: Online versus Offline Content
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The safeguards against blocking should be the same whether the content is in a book or on the internet.
The medium should not change the due process requirements. Existing laws like BNSS already provide procedures for unlawful material (e.g., Section 501 on obscenity/defamation).
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The nature of the medium matters. The internet creates unique challenges, and requires a proactive approach to combat cyberthreats.
Unlike a newspaper, which is liable for its content, intermediaries can claim that there is merely a “platform” hosting third-party content. Unlike publishers, intermediaries enjoy a “special exemption” under Section 79(1). |
||
| Precedential Value of Shreya Singhal & Foreign Jurisprudence | Shreya Singhal is binding and directly applicable. To say that a judgment of Apex Court is per incuriam is “unheard of.”
The government’s interpretation of Section 79(3)(b) compels intermediaries to “apply their own mind” to content, which directly contradicts Shreya Singhal’s reasoning for upholding Section 69A. |
Shreya Singhal is not a binding precedent for the 2021 Rules and should be reconsidered.
The reliance on foreign jurisprudence, particularly American free speech law, is inappropriate in the Indian constitutional context due to its distinct legal principles: ‘Re-Indianisation of Indian judiciary must start now” |
||
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Treating Section 79(3)(b) as a takedown power creates a “parallel mechanism” that undermines the safeguards of Section 69A. If 79 were truly an all-encompassing takedown power, 69A would be redundant.
Allowing different officers to pick between provisions creates arbitrarily subjective and discriminatory enforcement. Section 79 is an exemption clause, not an empowering provision. As a proviso to 79(1), it cannot be used as a standalone blocking power. |
There is no duplication: a notice under 79(3)(b) is distinct from a “blocking order” under Section 69A.
The sole purpose of a Section 79 notice is to inform an intermediary of a due diligence obligation. Non-compliance is non-penal and simply lifts the safe harbour protection, shifting the burden to the intermediary to defend the content in court. |
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| Vagueness, Due Process, and Executive Overreach
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The term “unlawful” is not self-evident but vague. It requires a legal determination based on “interpretation, application and context.” The vagueness of the term and its application by “multitude agencies” leads to arbitrary enforcement without constitutional checks.
Section 69A is the repository of power for issuing blocking orders. It was upheld in Shreya Singhal specifically because it contains built-in safeguards (reasoned orders, passed through a committee, subject to judicial review). In contrast, Section 79 enables thousands of officers to perform a judicial function—declaring content unlawful—without uniform standards or institutional safeguards. This is violative of Article 14. |
The government has a duty to keep citizens safe from unlawful content, which does not receive the same constitutional protections as free speech.
The notification mechanism under Section 79(3)(b) does not involve adjudication or judicial determination by government officials; it merely flags content that is already unlawful under existing laws. The government needs the ability to deal with new forms of “unquestionably unlawful” content, like deepfakes, that may not fall under the specific categories of Section 69A. |
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| Safe Harbour and the Loss Thereof
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The purpose of Section 79 is to specify when an intermediary loses its “safe harbour,” which is an exemption, not an empowering provision.
The loss of this safe harbour must be tied to a proper legal authority, not arbitrary executive notices. According to Shreya Singhal, “actual knowledge” requires a court order or an order under a specific statute empowering information blocking.
|
Safe harbour is a conditional privilege, not an absolute constitutional right under Article 19(1)(a).
To retain this protection, an intermediary must comply with due diligence obligations, including those under Rule 3(1)(d). Non-compliance with a notice does not incur penalties; it simply removes the immunity, requiring the intermediary to defend the content in court. |
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| Legality of the Sahyog Portal
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The Sahyog portal is not sanctioned by statute or rule and should be struck down.
It is an attempt to create an arbitrary censorship mechanism that enables covert censorship under the guise of “advisory” notices. This creates a “fear psychosis” that chills free speech. |
The Sahyog portal is a legitimate administrative tool for “ease of doing business” between the government and social media companies.
It is a facilitative mechanism that centralizes communication and ensures notices are from a “designated authority”. |
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| Locus Standi | The petition is maintainable because the government’s arbitrary restrictions on free speech violate the company’s right to equality under Article 14, which is available to all persons.
Article 14 is broad enough to “encompass” rights under Article 19, and even a substantively valid law can be struck down for procedural unfairness. |
The petition is not maintainable. X, as a foreign entity, has no locus standi to claim rights under Article 19(1)(a), which are reserved for Indian citizens. |
Intervening Application: A Direct Challenge from Content Creators
X Corp’s petition was joined by DigiPub News India Foundation, a body representing 92 media houses, through an intervening application. Representing the foundation, Senior Advocate Aditya Sondhi argued that platform users and media houses are the ‘originators’ of content on X and are the ultimate party affected by the government’s content blocking orders. Unlike the intermediary, the intervenors are directly entitled to assert their fundamental right to free speech under Article 19(1)(a).
Digipub has argued that the government’s mechanism for issuing takedown orders under Section 79(3)(b) is a direct infringement of constitutional rights. They contend that a system allowing thousands of government officers to issue a “cyclostyle form” of a blocking order, as opposed to the committee-based, reasoned procedure of Section 69A, violates natural justice. They further pointed out that content originators are given no notice or opportunity to be heard before their content is ordered to be taken down, and they have no access to the Sahyog Portal to understand or challenge these actions. This procedural opacity makes the rules “suspect” and creates an atmosphere of fear that chills legitimate speech and reporting.
Analysis: Balancing the Scales of e-Justice
The Constitutional tension of this case lies in the balance between a citizen’s right to free speech under Article 19(1)(a) and the State’s power to impose “reasonable restrictions” on speech in the interest of national security and public order under Article 19(2). As the Supreme Court noted in Modern Dental College & Research Centre v. State of Madhya Pradesh (2016), this is a “constructive tension” that courts must resolve through a “proper balancing of the competing principles,” not by eliminating the right itself.
Since 1950, Indian jurisprudence has evolved a framework for navigating this conflict, moving from a general test of “reasonableness” to a more structured and robust doctrine of “proportionality.”
State Of Madras v. V.G. Row (1952) was a landmark ruling where the Supreme Court introduced a comprehensive test for reasonableness. For the first time, the court explicitly stated that a lack of procedural safeguards, such as a fair hearing or adequate communication, constitutes a “serious defect” rendering a law unconstitutional. The Court held that the nature of the infringed right, underlying purpose of the restrictions imposed, extent and urgency of the evil sought to be remedied, disproportion of the imposition, and prevailing conditions at the time should all “enter into the judicial verdict” when determining reasonableness.
In a finding crucial to the present case, the Court established that the government’s power to act based on its “subjective satisfaction” is permissible “only in very exceptional circumstances and within the narrowest limits.”
The modern standard for assessing fundamental rights restrictions is the doctrine of proportionality.
The proportionality test developed in K. S. Puttaswamy v. Union of India (2017) was applied to Article 19(1)(a) in Anuradha Bhasin v. Union of India (2020). The Supreme Court’s analysis reveals that the Court must satisfy itself on four core aspects:
- Legitimate Aim: The measures undertaken must be designed to achieve a legitimate aim.
- Proximity: The justification for rights-infringing measures must be based on a rational connection between those measures, the situation in fact, and the object sought to be achieved
- Necessity: The measures must be necessary to achieve the object and must not infringe rights to an extent greater than is necessary to fulfil the aim. In this determination, the court must consider whether “a less intrusive measure” could have been adopted to achieve the object of the law.
- Balancing: The measures must not be excessively restrictive or disproportionately burdensome on the right-holder. There must be procedural guarantees against abuse of such interference.
Most recently, in Kunal Kamra v. Union of India (2024), the Bombay High Court addressed head-on the Union’s core argument that Section 79(3)(b) is a non-penal provision and merely gives “notice” to an intermediary of its due diligence obligation. The Court observed that this an “illusion of choice” since companies are incentivised to act in their business interest and no intermediary will risk losing their safe harbour to protect any particular user-content. The Court held that “confronting intermediaries with the loss of statutory safe harbour is a form of directing or mandating self-interested censorship.”
This judicial framework provides a clear standard for the Karnataka High Court to evaluate the government’s actions. The questions before the Court are:
- Does the reliance on the subjective morality of government officers without uniform standards or prescribed safeguards fall within the “narrowest limits” permitted by V.G. Row?
- Can the broad and arbitrary application of Section 79 serve as the “least restrictive measure” to protect against cybercrimes, given the existence of a more procedural, and judicialised mechanism under Section 69A?
- When content publication carries the commercial risk of losing statutory safe harbour incentivising intermediaries to engage in risk-avoidance, is it constitutionally permitted to shift the burden of censorship onto the content originator and thereby chill free speech?
The government’s actions, weighed against the principles of reasonableness and proportionality, reveal an inescapable conclusion: the answer to all the above questions is a definitive no.
Conclusion: The Free (Algorithmic) Marketplace of Ideas
X Corp v. Union of India may well become a landmark case in India’s digital speech jurisprudence. The High Court’s ruling could either restore the centrality Section 69A as the sole content blocking mechanism, or re-open and re-ignite the issues that were closed in Shreya Singhal.
While our analysis finds merit in the petitioner’s arguments, the Union is correct on one critique. Social media platforms are not “neutral participants,” but actively involved in “amplifying and sequencing” content through algorithms. The argument of the ‘chilling effect’ on the ‘free marketplace of ideas’ is often so loudly championed that it silences the reality of an average user — who is programmed to cultivate outrage, algorithmised to forward fake news, and harvested for every ounce of personal data. The true constitutional challenge to free speech lies beyond takedown notices and parallel mechanisms. It requires a direct confrontation with an ecosystem algorithmised to maximise capital, one that everyone wants to control, and no one wants to dismantle.
(The legal research team of CJP consists of lawyers and interns; this legal resource has been worked on by Raaz)
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Targeting Press Freedom: The unexplained censorship of Vikatan and the erosion of free speech