“The current amendments to the IT Rules, according to what I have heard in those closed-door discussions with the government was that the aim to give a retrospective legal sanctity to these advisories.”
Kumar Deep, Head of ITIC (Information Technology Industry Council), made this observation during the BIF Digital Dialogue on Draft IT Rules, organised by the Broadband India Forum (BIF).
The discussion comes at a time when the Ministry of Electronics and Information Technology (MeitY) has already tightened intermediary obligations through its February 2026 notification on synthetic media and deepfakes, which introduces shorter takedown timelines, new due diligence requirements, and clarifies that proactive compliance actions do not violate safe harbour protections under Section 79. The draft amendments under discussion, however, go further by attempting to reshape how platforms comply with government-issued advisories, standard operating procedures (SOPs), and guidelines.
Concerns Over Legal Sanctity of Advisories: Deep said, “This backdoor entry of advisories, SOPs, is having a legal sanctity as a law, which has been legislatively scrutinized and therefore has a legal sanctity, is something which we find, or at least I find, to be something which is contentious and which needs to be looked into.”
Deep also pointed to the possibility of consolidating past directives into a single framework. “An example was given of the master circular format that is used by RBI… they will make a compendium of sorts of all the past advisories, SOPs, and put it out in the digital domain as a master circular.” However, he cautioned, “But again, we will have to wait and watch.”
Highlighting a broader pattern in digital regulation, he added, “What we are seeing over the past few years is that most of these digital domain policies. So they include the advisories, the SOPs, etc. In the past few years, there has been a seasonality. i.e., they are clustering around political events. In this case, it being the election.”
He linked this directly to recent developments, stating, “Whether it is the central elections, which happened in 2024, which was… which was interpreted by many as being a social media platform 1st election, and then, of course, state elections… So those digital policies, advisories, sops, or rules are coming in or clustered around those events is what we are seeing.”
On Safe Harbour and Legal Boundaries: The question of granting legal force to advisories also triggered concerns about intermediary safe harbour under Section 79 of the IT Act. Explaining the basis of safe harbour, Abhishek Malhotra, technology lawyer, said, “there are these… If I may call them animals called platforms that do not have control. Over what is going to be put on those platforms. And therefore, their position vis-à-vis such content is reactive and not proactive.”
He further clarified the principle underlying intermediary liability: “if you, the platform, are not participating, or you have not contributed to that content… then your liability will also kick in… But till such time that happens… then you will not be liable.”
Malhotra also drew a clear distinction between binding rules and executive guidance. He said, “When it comes to SOP’s guidelines and advisories, etc. Typically, they are considered to be not mandatory. They are considered to be guidances that are provided for businesses.” He pointed out that such instruments are not subject to parliamentary scrutiny, stating, “the same level of scrutiny is usually not subjected to aspects such as guidelines, SOPs, etc.”
Warning of potential constitutional challenges, he added, “When the executive gets into the domain of interpretation… that’s where such… advisories, SOPs, etc, if they are made binding. Then they become a problem, and they can potentially be challenged.”
Government’s Perspective: Providing insight into the government’s viewpoint, Rakesh Maheshwari, former MeitY official and tech policy expert, explained that advisories are often seen as extensions of the IT Rules. He said, “Because they have been issued under the IT rules. The intent, therefore, of the ministry, it appears, is… they should be considered as an extension of the IT rules itself. should be enforceable, and therefore the ministry should be empowered to be able to seek compliance…”
He also highlighted their frequent use as a regulatory tool, noting, “it is the advisory that has been the maximum number of times the communication has been made…Advisories are always issued based on emerging issues at that particular time.”
Inter-Departmental Consultation and Regulatory Clarity: Beyond legality, Deep also flagged structural concerns regarding the rule-making process. He said, “There should have been an inter-departmental consultation… who does what, why, what constitutes news, defining that or understanding the definitions before putting it out in a public domain.”
He further noted the confusion arising from shifting ministerial responsibilities: “I do not want to comment on the stakeholder consultations which happened, which I was a part of, which was fronted by one ministry, even though the powers are now going to another ministry.”
Summarising the regulatory uncertainty, he added, “that creates a sense of lack of regulatory clarity… and suddenly if there is a huge pushback, they have to take it back, then that’s not the ideal situation to be in.”
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