Free speech doctrine has long paid unusual attention to the form in which a regulation is cast. Vagueness can be fatal. So can the use of informal instruments where subordinate legislation is required. The reason is the chilling effect. A cautious speaker, faced with a rule of uncertain provenance, withholds lawful expression along with the unlawful. The Indian tradition has built procedural discipline into rule-making for this reason. Rules touching speech are framed after consultation, laid before Parliament, and published in the Gazette. They carry the force of law and may be challenged in court if they exceed their parent statute. The grammar is the price of legitimacy.

A draft now in circulation proposes to bypass it. On March 30, the Ministry of Electronics and Information Technology released a set of draft amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The Rules govern social media platforms, search engines, messaging services, and online news aggregators. Within days, social media companies, free speech advocates, and digital rights groups had registered objections. The IT Secretary, S. Krishnan, has since indicated that the April 14 deadline for stakeholder comments may be extended.

The controversy turns on two clauses. The first would make compliance with informal ministerial communications, such as advisories and clarifications, a binding condition of doing business as an online platform. The second would extend a Code of Ethics, meant for digital news publishers and Over-The-Top (OTT) services, to ordinary social media users discussing current affairs.

The Information Technology Act, 2000, is the parent statute for India’s intermediary regime. Section 79 of the Act grants what lawyers call “safe harbour”. An intermediary, in the statutory definition, covers social media platforms, search engines, and internet service providers, among others. The statute shields it from civil and criminal liability for content posted by its users. The shield is conditional. The intermediary must observe due diligence as prescribed by the government, and take down unlawful content when notified through proper channels.

Without safe harbour, a platform could be sued every time a user posted something defamatory, obscene, or seditious. Its only rational response would be to pre-screen everything. Safe harbour is therefore the premise on which user-generated content exists at all.

The conditions of safe harbour are spelt out in subordinate legislation. The IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, are organised in three parts. Two of them matter here. Part II prescribes due diligence obligations for intermediaries. Part III prescribes a separate Code of Ethics for digital news publishers and OTT platforms. It is administered by the Ministry of Information and Broadcasting through a three-tier grievance mechanism, culminating in an Inter-Departmental Committee.

The 2021 Rules were controversial when they were first notified, and several provisions remain under challenge in High Courts. The March 30 draft proposes to amend that contested edifice in two ways.

What the March 30 draft would do

First, the draft would rewrite Rule 3(4) of Part II. The current rule sets out the standard due diligence checklist. The amendment would require every intermediary to comply with the Ministry’s clarifications, advisories, orders, directions, standard operating procedures, codes of practice, and guidelines. The list spans seven categories of executive instrument. Failure to comply would put the intermediary outside the safe harbour of Section 79 and expose it to liability for user content.

The significance lies in the legal status of these instruments. A clarification or advisory is, in the ordinary understanding, guidance. It does not have the force of law. It can be issued overnight, without consultation, without parliamentary scrutiny, and without the procedural discipline that subordinate legislation must observe. The amendment would lend such instruments the operative weight of a binding rule.

Second, the draft would amend Rule 8 and Rule 14 of Part III. The amendment to Rule 8 extends the Code of Ethics to online intermediaries. It also reaches news and current affairs content generated by users who are not registered publishers. The amendment to Rule 14 enables the Inter-Departmental Committee to take up matters referred by the Ministry on its own initiative. Until now, the committee has heard only publisher grievances escalated through the lower tiers.

The draft proposes two transfers. Legal weight moves from informal advisories to binding rules. Regulatory jurisdiction moves from publishers to ordinary users.

The first transfer is the more architecturally significant. What is at stake is the boundary between hard law and soft law. Hard law, namely statutes, properly framed rules, and judicial orders, binds because it has paid the procedural price of legitimacy. Soft law, namely advisories, clarifications, circulars, and codes of practice, is meant to guide without binding. The boundary matters. It exists because rules that constrain expression must be made under conditions that allow them to be tested and challenged.

Advisories carry none of these procedural features. They are issued without consultation, without notification, and without clearly defined scope. Their legal force, until now, has been moral or persuasive. The proposed Rule 3(4) would change that overnight. Every advisory, however informal in origin, would become a condition of safe harbour, and therefore as binding as the Rules themselves. The boundary between hard and soft law would, for this purpose, dissolve.

Meghna Bal and Avneet Oberoi of the Esya Centre, writing in The Indian Express, point to a March 2024 advisory on AI licensing. On their account, it would have halted domestic AI development had it been enforced. Regulatory uncertainty raises transaction costs and pushes smaller firms out of digital markets. The digital and physical economies are now too interlaced for ad hoc governance to leave one untouched.

The constitutional axis is starker. In Shreya Singhal v. Union of India (2015), the Supreme Court read down Section 79(3)(b) of the IT Act. It held that intermediaries would face takedown obligations only on a court order, or on a government notification citing specific Article 19(2) grounds. Vagueness and overbreadth in speech regulation, the court held, are constitutionally fatal. The doctrinal lineage stretches back to Bennett Coleman v. Union of India (1972). That decision held that the State cannot use administrative regulation, however technical its form, to abridge freedom of expression. The proposed Rule 3(4) sits uncomfortably with both decisions.

Collateral censorship

This dynamic is what Yale’s Jack Balkin calls “collateral censorship”. Speech regulation aimed at intermediaries produces over-removal because the platform bears the cost of liability without the speaker’s stake in expression.

The Bombay High Court found this architecture constitutionally infirm in Kunal Kamra v. Union of India, decided on September 26, 2024. The case concerned a 2023 amendment empowering a government “fact-check unit” to flag content about the Central government as “fake, false, or misleading”. Intermediaries that failed to take such content down forfeited safe harbour under Section 79. The 2:1 majority held the amendment ultra vires Articles 14, 19(1)(a), and 19(1)(g). The Union’s appeal is before the Supreme Court, with notice issued in March 2026 and no stay granted.

The proposed Rule 3(4) reproduces the operative logic of the struck-down rule. The trigger is broadened from one fact-check unit to an indefinite class of executive communications. The 2023 rule allowed the executive to make truth determinations enforceable through platforms. The new draft would allow any determination, in any of the named forms, with the same enforcement consequence.

The Code of Ethics in Part III was designed for publishers. A publisher exercises editorial control, employs journalists, and accepts professional responsibility for what appears under its name. The Code, modelled on Press Council norms, makes sense in that context. The Ministry’s underlying concern is genuine. Influencers and unaccredited content producers now reach audiences that rival those of established publishers, and the existing complaint mechanism does not reach them.

The draft’s response is to extend both the Code and the Committee’s jurisdiction to “news and current affairs content” generated by individual users. A retired civil servant writing on monetary policy, an academic writing on a constitutional case, an influencer commenting on an election: each fits the description. None has editorial control in the publisher’s sense. None has the resources to defend a Code of Ethics complaint before an Inter-Departmental Committee in Delhi. The Code would impose obligations on a class of speakers it was not designed for and was never authorised to govern.

Krishnan was candid in his response to industry concerns. “Intermediaries did not want to be clubbed with publishers, and publishers did not want to be clubbed with users,” he told reporters. The acknowledgment points to the conceptual confusion at the heart of the draft.

Krishnan offered a wider defence. The draft, he said, “is not expanding any powers; these are clarifications within the existing framework”. He is right that the formal blocking power under Section 69A, upheld with safeguards in Shreya Singhal, remains untouched. The novelty lies in the mode of enforcement. The draft would lend an advisory the operative force of a rule, without the procedural costs of rule-making. It thus creates a parallel and informal blocking architecture, routing around those safeguards.

What the consultation should weigh

The consultation period, even if extended, will be brief. The questions go beyond the wording of Rule 3(4) and Rule 8. Three architectural questions deserve attention. First, should the safe harbour of Section 79 be conditioned on instruments lacking the procedural discipline of subordinate legislation? Second, can the Code of Ethics, conceived for publishers with editorial control, be applied to ordinary users without amending the parent statute? Third, does the expanded Inter-Departmental Committee, now empowered to hear “matters” as well as “complaints”, carry the safeguards Shreya Singhal demanded?

These are questions on which the doctrinal record of the Supreme Court is reasonably clear. The draft, if notified in its present form, would invite challenge on grounds the court has already settled. The shorter route lies in revisiting the draft.

V. Venkatesan is a senior legal journalist and a researcher.

Also Read | Will the DPDPA muzzle RTI Act and investigative journalism?

Also Read | Assault on NewsClick marks the lowest point for media freedom in India since Emergency