Govt Officers Across Country Ordering To Block Content Based On 'Subjective Morality': X Corp Tells Karnataka High Court
In the ongoing challenge to content takedown directives issued by the Union Government, X Corp (formerly Twitter) told the Karnataka High Court on Tuesday that thousands of Central government officers across India having their subjective understanding of law and morality are directing it to block content by virtue of power under Section 79 of the IT Act.
Union's officers deciding what is lawful based on their whims and fancies
Senior Advocate KG Raghavan, representing X Corp, submitted before Justice N Nagprasanna:
"Thousands of officers appointed by the Union across the country, each with their own subjective understanding of online content, are making decisions within their respective jurisdictions under Section 79. This results in arbitrary and inconsistent content regulation. Unlike Section 69A, which requires decision-making through a committee process, Section 79 allows a single officer to issue takedown directions without any institutional safeguards. This is violative of Article 14 of the Constitution...Across the country, thousands of officers, each with their own subjective understanding of what is lawful or moral, are making such decisions as per their own whims and fancies. There is no coordination or uniformity among these government officers, and that amounts to arbitrariness".
He further argued that Section 79(3)(b) cannot serve as an independent or standalone source of power to block content, especially in the absence of procedural safeguards that are embedded in Section 69A. He further emphasised that Section 79(3)(b) does not, in itself, confer blocking powers on the executive.
"The primary question is can Section 79(3)(b) of IT Act said to be source of power? Can this provision, even if it is held to be a source of power be read as standalone provision, independent of 69A of the IT Act? We submit that 79(3)(b) is not a source of power. If at all it is held to be source of power, it is constrained by the requirements of 69A IT Act", he said.
Referring to Section 69A of the IT Act, Raghavan said that it provides a structured regime that requires satisfaction of necessity on limited grounds (such as sovereignty, public order, security of state etc.), mandates reasons to be recorded in writing, and ensures procedural checks and balances, which is absent in Section 79(3)(b), where an officer/agency takes the decisions.
Union's Officers arbitrarily empowered to take final call on blocking
He said that while the platform has "no intention to injure public interest" however, Section 79(3)(b) cannot be read in isolation as a standalone power to bypass these safeguards under Section 69A.
"Can a blocking order be passed from the confines of a government officer's room? The answer is no… It becomes a case of 'I say so, therefore it is so'. The officer's decision is treated as final, and if I don't obey, I lose my protection (safe harbour) under Section 79(1) IT Act", he remarked, stressing the 'opacity' and arbitrariness of the government's current approach.
In other words, he said that under Section 79(3)(b), the government is issuing a notice to an intermediary when it think is 'being used to commit an unlawful act', but the interpretation of what constitutes an 'unlawful act' is left entirely to the discretion of a government officer.
He argued that what may be considered defamatory or offensive in Bengaluru might not be seen the same way in other states. He said that while some words used in Bengaluru colloquially could be considered offensive elsewhere.
He therefore questioned whether Union's officers, based on their individual understanding and without any uniform standard, decide whether a particular post is unlawful or not.
Not saying 'X' is above the law, but need procedural safeguards
Raghavan noted that the Union Government consistently argues that Section 79(3)(b) is distinct from Section 69A and not subject to its procedural discipline. This, he argued, effectively enables the executive to issue content-blocking directions without any statutory or judicial oversight, which, X Corp claims, is unconstitutional and violative of Article 14.
He also submitted that X Corp has no intention to disobey the law of the land, and instead, he sought procedural safeguards in the process of issuance of blocking orders.
"I have no control over what is posted on my platform,. Somebody else is posting posts on my platform, I have no control over it. But, can I wash my hands so that even if anything offensive is posted on our platform, I can't do anything? NO. I am not saying this, it is not our case. Each and every country has rules in this regard and they have to be complied with. I want to allay the impression from the court's mind and even union govt's mind, we are not saying we are above the law. We are just saying that a procedural safeguard is not available under 79, which is available under 69A, and thus violative of Article 14".
X Corp contended that under the current practice, if the decision is not accepted, the intermediary loses the safe harbour under Section 79(1).
He also explained the consequences of non-compliance by intermediaries under Section 79(3)(b):
- The intermediary loses its exemption from liability under Section 79(1).
- It becomes exposed to both civil and criminal liability.
- Its platform may face enforcement action or blocking itself and punishment under Section 45
Inconsistency in IT Rules 2021
When the matter was taken up in the post-lunch session, Raghavan referring to Supreme Court's decision in Shreya Singhal v/s UOI (2015) said that insofar as testing the validity of a law is concerned, the apex court had said that whether it is print media or the internet, the same standards must be applied. More on this here.
Raghavan further argued that the benefits of the observations made by the Supreme Court in the Shreya Singhal judgment on Sections 69A and 79 and procedural safeguards must be ensured for X Corp.
Justice Nagprasanna, however, pointed out that the Shreya Singhal judgment was delivered before IT Rules 2021 were notified, and the Top Court had discussed the safeguards under Section 79 in view of the 2011 Rules, which are no more in existence.
"Shreya Singhal was delivered while interpreting 2011 Rules. 2021 Rules are different from 2011 Rules, and the Supreme Court has not interpreted 2021 Rules and the changes made therein. I am just clarifying that Top Court has not interpreted 2021 Rules", the Judge said.
Raghavan, however, said that the Bombay High Court in the case of Kunal Kamra v/s UOI had interpreted the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.
To this, the high court further clarified that the Supreme Court had not interpreted the rules. Notably, the Bombay High Court in its 2024 decision had struck down the 2023 Amendment to IT Rules On 'Fact Check Units'.
Meanwhile Raghavan said that Section 69A of the IT Act and Rule 3(1)(d) of 2021 Rules are similar in their scope, however, the Union, through its officers, has the discretion to proceed under Rule 3(1)(d) against one person while choosing to invoke Section 69A for another.
He thus submitted that the doctrine of separation of powers is also violated and emphasised that Rule 3(1)(d) (2021 Rules) "needs to be struck down".
For context, Rule 3(1)(d) provides that an intermediary upon receiving a court order or on being notified by the government shall not host, store or publish any unlawful information in the interests of sovereignty and integrity of India, security of the State, public order, decency or morality, etc.
At this stage, Raghavan referred to certain blocking and takedown notices issued to 'X,' including a case involving a sexual assault incident at Anna University, where a takedown notice was issued for related content.
He also referred to another instance from January this year, where a police station in Maharashtra issued a notice to X under Section 79(3)(b) of the IT Act seeking information about a user who allegedly posted a defamatory tweet posted two years ago referring to then Maharashtra Home Minister as 'useless'.
He cited another instance where the West Bengal Police sent a takedown notice to the platform related to a 'misleading' post concerning CM, Mamata Banerjee. The alleged post showed Banerjee as an astronaut in a spacewalking suit with the helmet in her hands, and the American flag in the background.
Foreign company like X entitled to Article 14 protection
Raghavan emphasized that a foreign company is not entitled to protections under Article 19. However, since Articles 14, 19, and 21 form a "golden triangle" of fundamental rights, if anything is in violation of Article 19, it would also go against Article 14 (which is available to foreign entities), he added.
He said that Article 14 has two dimensions–substantive and procedural. He said that even if a law meets the test of substantive reasonableness, it can still be struck down or read down if it fails to meet procedural fairness.
Centre opposes X's plea, says Govt has to look at issue from the intermediary's standpoint
Opposing X's plea, Solicitor General Tushar Mehta said that contentions made by X Corp's counsel have been advanced from "from an X-centric perspective".
He said that the Union Government has to look at the issue from the standpoint of an intermediary.
"Suppose a defamatory post is published against me. The government informs the intermediary that the content is defamatory and asks for its removal under Rule 3(1)(d). If the content is not taken down, and I approach the court, Twitter can claim (before the Court) that it is merely a platform and cannot be held liable. But compare this with a press owner, say, the Times of India. I say that Twitter, or any intermediary, enjoys a special exemption under Section 79(1) of the IT Act. The nature of the medium matters," he said.
After hearing the matter for some time, the court listed it for hearing on July 11, and the court will hear Union's arguments on July 17.