Speakers at MediaNama’s discussion on IT Rules and the Future of Online Speech in India on April 23 said the Centre’s proposed Rule 3(4) in the draft IT Rules would significantly expand executive powers by allowing the Ministry of Electronics and Information Technology (MeitY) to issue binding advisories, guidelines, and standard operating procedures to intermediaries, bypassing both Parliament and the judiciary.
The proposed amendment says intermediaries must comply with advisories, clarifications, guidelines, circulars, and standard operating procedures issued by MeitY as part of their due diligence obligations under the IT Rules or risk losing safe harbour protections. Panellists argued this would convert soft law instruments into binding obligations without legislative scrutiny.
Advisories vs law
Rakesh Maheshwari, former Senior Director and Group Coordinator of MeitY’s Cyber Laws Division, distinguished between directions and advisories. “As long as there are conditions which have been stated, that they have to be issued in writing, they must clearly provide the statutory provision in the rule; maybe they should be considered. But in respect of advisory, I have a different opinion because advisory is per se advisory in nature. It cannot be considered part of the rules,” he said.
Maheshwari added that while “guidance, directions, SOPs are all valid”, advisories should remain advisory. He also questioned the legal basis for such a move, saying, “To that extent, maybe from a law perspective, it is an invalid proposition.”
Allows the Executive to bypass Parliament
Rahil Chatterjee, Principal Associate at Ikigai Law, said the proposal effectively allows the executive to create binding law without following the legislative process laid down under the IT Act. “You can call it whatever you want. If it is to have the binding force of law, it must be issued under 87 in that framework. If it is not issued in that framework, it is advisory,” he said.
He said advisories serve an important purpose by communicating the government’s interpretation of the law and allowing companies to plan compliance. However, he warned that Rule 3(4) changes that function entirely. “The ability for the executive to bypass the legislature to make binding law impacts every digital business,” he added.
Chatterjee said the impact of Rule 3(4) would extend far beyond social media platforms. “Tomorrow, you’re going to have an advisory saying, hypothetically, a cloud service provider must do XYZ. An e-commerce platform must do XYZ. It is linked to the safe harbour. That is the real fear in 3(4)” he said.
He pointed to the government’s March 2024 advisory on AI models, which was later withdrawn after industry pushback, as an example of why advisories should remain non-binding. “The fact that they came out with an advisory and could take it back is exactly the purpose of soft law,” he said. “With 3(4), that becomes binding law.”
Judicial concerns
Torsha Sarkar, Project Manager at the Centre for Communication Governance, National Law University Delhi (CCG-NLUD), said the proposal also appears inconsistent with the Supreme Court’s judgment in Shreya Singhal v Union of India, which read down Section 79 of the IT Act.
Actual knowledge under Shreya Singhal is understood “when the intermediary has received a government notification or a court order,” she said. “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.”
She added that Rule 3(4) goes beyond content takedowns and applies to the implementation of all of Part II of the IT Rules, saying, “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 the implementation or operationalisation of Part 2 of the act. That is also incongruent to the vision of intermediate liability that Shreya Singhal had, because Shreya Singhal talked about content takedown. Part two of the IT rules now has a lot of other things that are not content takedown.”
Frequent binding advisories and amendments impact businesses
An attendee noted that “rules should not be amended on the fly”, arguing that frequent changes create uncertainty for both businesses and users. Chatterjee echoed this concern. “I need to know what the legal rules of the game are. The ever-evolving legal rules are going to be problems for businesses,” he said. Chatterjee added that legal uncertainty also affects speech. “The ambiguity in what you can say and what is protected or not protected is where that problem is arising.”
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