“The Solicitor General on behalf of the Government of India actually said that there are problems with Shreya Singhal. It is out of date. It is not dealing with what’s happening right now,” said Aditi Agarwal, independent journalist, recounting in her own words what the government’s counsel said in the Karnataka High Court’s X Corp vs Union of India case, at MediaNama’s discussion on IT Rules and the Future of Online Speech in India on April 23 in Delhi. Speakers at the discussion examined whether Shreya Singhal, the 2015 Supreme Court judgment that forms the backbone of India’s internet speech framework, remains relevant and what happens if it does not.
Shreya Singhal was designed to solve the wrong problem: Shreya Singhal v. Union of India, decided by the Supreme Court in 2015, read down Section 79(3)(b) of the IT Act to require a court order or government notification before platforms could be held liable for third-party content. It also struck down Section 66A, which had criminalised online speech.
“The crux of Shreya Singhal is addressing a very unique problem, which is how do you stop horizontal censorship by private parties,” said Vasudev Devadasan, lawyer and Master of Laws candidate at the University of Melbourne. That was what the judgment was addressing in the context of Section 79(3)(b), he said.
Rahil Chatterjee, Principal Associate at Ikigai Law, agreed that Shreya Singhal remains good law but acknowledged its limits. “The judgment also refers to the fact that you need to revisit Shreya Singhal on that, but it is still good law,” he said.
Rule 3(4) conflicts with what Shreya Singhal envisaged: “Actual knowledge under Shreya Singhal is understood when the intermediary has received a government notification or a court order. The term they used was government notification. So at the outset, it seems like that means something. It’s very specific,” said Torsha Sarkar, Project Manager at the Centre for Communication Governance, National Law University Delhi (CCG-NLUD).
The proposed Rule 3(4) is fundamentally incongruent with this framework, she argued.
“If you compare that to what Rule 3(4) says, clarifications, advisories, standard operating practices, that’s a very different class of government intimations that was not envisaged in Shreya Singhal,” Sarkar said.
Rule 3(4) does not even speak the language of actual knowledge, she added. “Rule 3(4) doesn’t even talk about actual knowledge. What it says is that now any of these things can be issued in pursuance of implementation or operationalisation of Part 2 of the act. That is also incongruent to the vision of intermediary liability that Shreya Singhal had, because Shreya Singhal talked about content takedown,” she said.
“How is MeitY being authorised to issue this new gamut of intimation to intermediaries and asking them essentially to do this on the prong of saying that you haven’t observed your due diligence? That also doesn’t really align with the vision of what Shreya Singhal said,” Sarkar said.
Section 79 is an exemption, not a blocking power: Sarkar advanced a more radical argument: that Section 79 does not create a parallel takedown procedure at all. “If you look at the language of Section 79, it says the intermediary will not be held liable if it follows XYZ things. But the liability, what is the crux of the liability? That’s not in Section 79. It’s not a criminal provision. It doesn’t lay down a punishment. That you will find in Section 69, which has seven-year imprisonment,” she said.
“When you think about government notification, the government should be actually routing their takedown intimations through Section 69. If and only if that procedure is not followed, you have reached the intermediary, they have not responded, they have not taken it down, then the criminal liability that is set in Section 69A can apply to the intermediary,” Sarkar said.
She flagged that this is her interpretation and not one backed by existing court judgments.
What Shreya Singhal actually requires of intermediaries: “Legislation clearly says that the intermediary needs to assess whether the request is legitimate or not. There is a clear understanding from the courts as well that they need to figure out whether this is legitimate or not. That’s what the judgment actually says,” said Snehashish Ghosh, Founder of TechNiti and former Meta policy executive.
If the FCU appeal succeeds, Shreya Singhal falls: The government’s appeal against the Bombay High Court order striking down the Fact-Check Unit (FCU) is pending before the Supreme Court. If the government wins, the implications go well beyond the FCU, said Apar Gupta, Founding Director of the Internet Freedom Foundation. “Then it leads to the overturning of Shreya Singhal, which means everything can be done. The slate has been wiped clean,” he said.
The Bombay High Court’s Kunal Kamra judgment contains the most elaborate reasoning on chilling effect in any Indian digital rights case, Gupta noted.
“It has a particular value which can be used to show in petitions which can be filed in which there’s a regulation which is not even in effect and for which you don’t need evidence and you can still approach a constitutional court,” he said. The Solicitor General has already laid groundwork in the Karnataka HC to question the continuing validity of Shreya Singhal, Gupta added.
“Some hints of this actually have already been provided before Justice Nagaprasanna in Karnataka High Court, where the Solicitor General has made some of these submissions,” Gupta said.
Diluted, but still relevant: “To me, Shreya Singhal will always be relevant. It’s important to understand what Shreya Singhal was trying to do in terms of balancing technological innovation with free speech rights. It has been diluted. It will continue to be diluted to a large extent,” said Sneha Jain, Partner at Saikrishna and Associates, who was also counsel for IAMAI in the original Shreya Singhal case. “Intermediaries cannot be passive. Their roles are not passive, so therefore their responsibilities and liabilities cannot be passive. They need to be responsible,” she said. But the question of what happens if Shreya Singhal is overturned remains unanswered, she added.
What Shreya Singhal could have been: During the Shreya Singhal proceedings, Nikhil Pahwa, founder and editor of MediaNama, disclosed that he and others had argued for a takedown and putback mechanism modelled on the Digital Millennium Copyright Act (DMCA) in the United States.
The argument arose specifically around non-consensual intimate imagery. If someone pushed back on a takedown, who would claim liability for putting it back up? “My argument was, who’s going to claim liability for that in the first place? It will stay down,” he said. “We argued for takedown and putback, but we got government orders and court orders instead”, Pahwa added,
“The slate has been wiped clean”: Shreya Singhal is still good law. But it was written for a different crisis. The consensus across the discussion was that the judgment’s framework cannot contain what is now happening.
“Today, the crisis we’re facing is government censorship. It’s government notices. Your right to free speech is directly engaged,” Devadasan said.
MediaNama hosted this discussion with support from Meta, Amazon, and Google. Our community partners for this event are the Internet Freedom Foundation (IFF), the Centre for Communication Governance (CCG), and Digipub.
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