Note: This article was first published on the Constitutional Law and Philosophy blog and is being cross-posted here with permission. You can access the original post here.

This is a guest post by Rudraksh Lakra.

Introduction 

The Ministry of Electronics and Information Technology recently released draft amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules 2021”). This follows an earlier amendment introduced in February, including provisions that reduce takedown timelines to as little as three hours. Together, these developments have far-reaching implications for users and have prompted considerable public concern. The amendments raise serious constitutional and policy questions. This piece seeks to extend these concerns by offering a postcolonial critique, arguing that despite changes in technology, the regulatory impulse underpinning these rules reflects a deeper continuity with colonial modes of governance.

Colonial lineages of communication control

The IT Rules 2021 draw their authority from the Information Technology Act, 2000 (“IT Act”), which vests the state with broad powers over digital communication, including surveillance and content blocking, without meaningful safeguards or independent oversight. This framework echoes colonial statutes such as the Indian Telegraph Act, 1885 and the Indian Post Office Act, 1898, both of which were designed to secure imperial control over communication networks. While this influence is most visible in provisions relating to interception and blocking, the IT Act more fundamentally reflects a model of governance characterised by extensive executive discretion and control.

The telegraph occupied a central place in British Indian administrative governance, serving as both an instrument of coordination and control. William Wilson Hunter’s observation that it formed “the basis not only of our military policy in India but also of the modern mercantile system” captures its strategic significance. The Telegraph Act of 1876 was among the earliest laws to authorise the interception of communications. Similarly, the Post Office Act, 1898, framework conferred wide discretion to intercept and detain correspondence. Together, these laws structured a particular relationship between the state and its subjects, grounded in hierarchy, surveillance, and suspicion.

A postcolonial transition might have marked a departure from these inherited structures. Instead, they were preserved and gradually extended after Independence. The continuity lies not only in the legal framework but also in the underlying logic that informs it. This continuity is evident in the IT Act, which translates earlier modes of communication control into the digital sphere. Although the medium has shifted from telegraph and telecom networks to online platforms, the architecture of control remains strikingly consistent.

IT Rules 2021 amendments: Capture of the digital sphere

The recent amendments to the IT Rules 2021 must be situated within this broader historical context. One key change is the expansion of executive power through Rule 3(4), which enables the government to issue binding advisories, standard operating procedures, and directions to intermediaries. These instruments operate outside parliamentary scrutiny, yet compliance is tied to the preservation of safe harbour protections. Platforms are therefore required to align with executive instructions or face potential liability for millions of pieces of user-generated content. This structure closely mirrors colonial modes of governance, where executive authority operated through wide, often unchecked discretion. 

Another key development is the extension of regulatory oversight to ordinary users. The amended proviso to Rule 8(1) brings “news and current affairs content” posted by users within the ambit of the three-tier oversight mechanism. This category remains undefined. In a digital environment where news production is decentralised and frequently driven by individual creators, the absence of clear boundaries significantly broadens the scope of regulation. A 2024 report indicates that 71 percent of Indians rely on online media for news, highlighting the scale and centrality of this ecosystem and suggesting that the amendments extend state control more deeply into everyday spaces of information exchange.

Additionally, while Rule 9 formally imposes obligations only on publishers to adhere to the Code of Ethics, the structure of the Rules indicates that users may also be indirectly drawn within its ambit. Under Rule 14(5), the Inter-Departmental Committee is authorised to examine user-generated content and recommend action to the Ministry of Information and Broadcasting, including warnings, censure, apologies, modification or deletion of content, and even blocking. In practice, this establishes a mechanism through which users may be indirectly compelled to conform to the Code of Ethics. It is also important to note that the Inter-Departmental Committee is not an independent body, as the majority of its members are government representatives. The Code of Ethics itself incorporates compliance with the Programme Code under the Cable Television Networks (Regulation) Act, 1995 (“Cable Act”). 

The Cable Act was enacted in the 1990s, at a time when the state monopoly over broadcasting was breaking down, and the media landscape was being liberalised, and it was designed to retain a degree of state control over broadcast content. The Programme Code has also been widely criticised for its vague and open-ended standards, particularly those relating to morality, taste, and social harmony. Such indeterminacy is not incidental; it enables flexible interpretation and selective enforcement, a feature that recalls colonial regulatory techniques where broadly framed standards allowed the state to intervene whenever it deemed necessary. This trajectory is consistent with earlier attempts to expand regulatory control through the Broadcasting Services (Regulation) Bill, 2023, which sought to extend similar standards to digital content creators. Although the Bill was withdrawn in 2024 from the parliament, the incorporation of analogous provisions through the IT Rules 2021 raises concerns about the extent to which such regulatory frameworks are being introduced without parliamentary scrutiny.

The transformation of the Inter-Departmental Committee adds another layer to this framework. Originally conceived as a grievance redressal body, it is now empowered to take up “matters” referred by the Ministry of Information and Broadcasting, even in the absence of a complaint or an identifiable aggrieved party. Its mandate now extends beyond Code of Ethics violations. This shift moves the Committee away from reactive adjudication towards proactive oversight. This evolution of the Inter-Departmental Committee also increases the risk of users being compelled to comply with the Programme Code and beyond, embedding a system in which regulatory authority is initiated and driven by the state itself rather than by identifiable harm.

Alongside these structural changes, the amendments introduced in February sharply reduced timelines for content takedown. In certain instances, platforms are required to act within as little as three hours. Such compressed timelines raise significant constitutional concerns, as they leave little room for meaningful evaluation of legality, necessity, or proportionality. The likely outcome is a pattern of over-compliance. This tendency is also reinforced by the Sahyog Regime, which establishes a direct coordination channel between government bodies and platforms. With multiple state and central agencies, along with numerous companies onboarded, this mechanism enables rapid transmission of takedown requests. In this setting, platforms, faced with potential liability, are more likely to prioritise speed over careful assessment. As a result, removal becomes a precautionary response rather than a considered decision. Apar Gupta and Nikhil Pahwa have described this emerging framework as an infrastructure for mass censorship.

This is where the idea of digital structural authoritarianism becomes useful. It shifts the focus to how the regulatory design itself produces censorship effects, including a broader chilling of speech. The concern lies not only in direct state action but in how the framework shapes behaviour across the system. Platforms anticipate risk and act cautiously, while users adjust their expression in anticipation of consequences. Control, in this sense, operates through incentives and uncertainty as much as through direct intervention. 

Postcolonial continuities in governance and free speech

From a postcolonial perspective, the IT Rules 2021 amendments reflect a familiar governing logic: power operates not only through overt coercion but through structuring the conditions within which individuals act, thereby normalising compliance and embedding control within everyday communicative practices. For example, colonial censorship laws such as the Vernacular Press Act, 1878, created conditions in which publication itself became fraught with risk. Editors faced threats of prosecution, financial penalties, or closure, producing a climate of caution. While the parallels with the present are not exact, they remain instructive. Contemporary regulatory responses similarly rely on expansive executive discretion and limited procedural safeguards.

The digital sphere intensifies these dynamics. Unlike earlier communication systems, digital platforms enable large-scale, decentralised participation in public discourse. Platforms can be regulated, data can be retained, and content can be removed at scale. The IT Rules 2021 operate at these points, extending regulatory reach across users, intermediaries, and infrastructure in ways that reshape the communicative environment.

Throughout the discussion above, the postcolonial continuity can be understood along three interrelated lines. First, communication technologies continue to function as instruments of control, censorship, and discipline. Second, the relationship between the state and individuals reflects a structure in which individuals are treated less as rights-bearing citizens and more as subjects. Third, the framework rests on wide executive latitude, which runs against any meaningful conception of the rule of law.

These features resonate with Gautam Bhatia’s account of the conservative structure of free speech in India. He identifies parallels between colonial free speech frameworks and the post-independence approach to free speech. In this account, restrictions are justified both to preserve the symbolic legitimacy of the state, rather than its substantive legitimacy, and by reference to Indian particularism. The latter rests on the assumption that Indians are driven by passion rather than reason and are therefore not fully autonomous, thereby justifying greater governmental control.

The emphasis on preserving legitimacy aligns with the first and third strands of colonial continuity, namely the use of communication as a tool of control and the reliance on broad executive discretion. At the same time, the second strand of colonial continuity, the state-subject relationship, is deepened by the particularism logic, as individuals are not treated as autonomous rights-bearing agents but as entities requiring paternalistic supervision. The present amendments, read alongside the IT Rules 2021, the IT Act, and the longer regulatory histories of telecommunications, post, press, and broadcasting, reflect a continuation of these structural tendencies. This continuity is not merely institutional but ideological, reflecting a persistent preference for domination.

Conclusion: Transformative constitutional tensions

A postcolonial critique does not suggest equivalence between colonial and contemporary contexts. Constitutional guarantees exist, and judicial review remains available. What persists, however, is a governing pattern in which communication is treated as a domain of control and executive discretion remains central. This shifts the focus beyond questions of legality to the kind of communicative environment being shaped. Communication networks are central to democratic participation, and their regulation calls for attention to rights, accountability, and transparency. The current trajectory points in another direction.

Viewed through this lens, the amendments sharpen a deeper question about the legacy of the transformative constitutional project. What does the Constitution’s attempt to transform “the people” from subjects into rights-bearing citizens mean, and how does it sit with the regulatory approach reflected here? By prioritising state legitimacy, expanding executive discretion, and treating communication as a domain of control, the framework recasts individuals as entities to be monitored and restrained rather than full members of a democratic society. It thus reinforces a hierarchical state-subject relationship, with technology functioning less as a medium of participation, accessibility, inclusion, and equity, and more as an instrument of control and domination.

Read More:

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