The government’s inclusion of takedown notices as part of its response to X’s petition is ‘obnoxious’ and equivalent to ‘mud-slinging’, X’s (formerly Twitter) lawyer, KG Raghavan, argued in the Karnataka High Court. This comes as Raghavan’s response to the government’s over-1,000-page submission to the court, where (under Annexures R-15 and R-16) it included all the takedown notices issued between March 20, 2024, and March 20, 2025.
Besides arguing against the inclusion of the petitions, Raghavan also emphasised that Section 79(3)(b) of the Information Technology Act (under which the government issued these notices) is not a repository of power for issuing blocking notices. “The only point we are saying is follow the law. Otherwise, amend Section 69A, don’t provide safeguards at all, and then we will test the correctness of 69A,” Raghavan argued.
He mentioned that instead of relying on this provision, the government should use Section 69A of the Act to issue takedown notices. When the court questioned how the government should tackle situations where a post already causes damage before a blocking order is issued, Raghavan argued that the government could pass a blocking order as if it were an ex-parte court order.
What are these legal provisions:
Section 79 of the IT Act protects platforms from liability for content posted by users. Part 3(b) of this section states that platforms can lose this protection if they fail to take down unlawful content that the government or a court has informed them about.
Section 69A, on the other hand, gives the government the power to instruct digital platforms to take down content in the interest of:
- The sovereignty and integrity of India
- Friendly relations with foreign states
- Public order
- Preventing incitement to the commission of an offence
The content takedown requirements here are similar to the reasonable restrictions on freedom of speech and expression listed under Article 19(2) of the Indian Constitution. Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 lays down the process and safeguards for content takedowns under Section 69A. These include:
- The requirement for the state to record its reasons for blocking in writing.
- A pre-decisional hearing where the platform (which hosted the content) and the user who posted it can participate.
- a post-decisional reviews of information blocking directions.
Key points from Raghavan’s arguments:
Issues with the takedown notices:
Elaborating on the issue with the takedown notices the government and its agencies sent, Raghavan said they often mention just one URL containing specific images and expect platforms to delete it. Even if that one URL is removed, other posts with the same images remain, he explained. He requested a rejoinder from the court.
When asked whether the only reason for the rejoinder was the R-15 and R-16 annexures (which contained takedown orders), Ragahvan mentioned that none of the people in X’s team have had a chance to individually read the government’s over 1000-page submission.
He further pointed out that under Section 79(3)(b), the government had authorised a large number of officers to issue takedown notices. “There is a notification which says, I’m empowering a tax recovery officer to issue a blocking order under 79(3)(b),” he said. He added that if today the government has empowered a tax recovery officer to issue blocking orders, tomorrow it could ask a tehsildar or a clerk to do the same as well.
Why should the government rely on Section 69A?
Raghavan’s primary argument for urging the government to rely on Section 69A was that orders under this section are subject to scrutiny to ensure that the order is justified or not. He said that even if the government issues an ex-parte blocking order under Section 69A (without hearing out the platform/user’s point of view), it would not be a problem because the order would be subject to a post-decisional hearing. Raghavan added that the whole reason why the Supreme Court of India had upheld section 69A in its judgment in the Shreya Singhal case was because there are protections within the section.
He argued that the government cannot claim that the Shreya Singhal judgment is per incuriam or not a binding precedent. “[In that case, the] Supreme Court was considering the constitutional validity not only of 69A, but was also considering the constitutional validity of 79(3)(b),” Raghavan mentioned, adding that the judgment had watered down Section 79(3)(b) to state that unlawful acts beyond the scope of Article 19(2) of the Indian Constitution cannot form part of Section 79.
Scope of Section 79:
He explained that the scope of section 79 is to provide platforms protection from liability. It also tells platforms under subsection 3 of Section 79 when this protection will vanish. Raghavan argued that the government’s notification of unlawful content under Section 79(3)(b) should follow the discipline of Section 69. He meant that any such notification should follow through the procedural safeguards under Section 69A.
“You cannot read Section 79(3)(b) as a standalone provision,” Raghavan said, reiterating that under the Shreya Singhal case, the Supreme Court had held that Section 79(3)(b) and Section 69A are “closely related.” In the context of the Shreya Singhal case, the court pointed out that the rules governing intermediaries witnessed a change between 2011 and 2021. Raghavan, however, argued that there is not much of a difference between the two. “I can understand if the 2021 rules, unlike the 2011 ones, had also procedural safeguards,” he said. However, the rules lack such a mechanism.
Adding to the law through the IT Rules, 2021:
Raghavan went on to discussed Rule 3 of the IT Rules, 2021, which deals with the due diligence requirements for platforms. Under Rule 3(d), platforms who receive a notice from the government about unlawful content on their service shall not host any content that is:
- Prohibited under any law in force
- Impacts the sovereignty and integrity of India
- Impacts the security of the state
- Affects friendly relations with foreign states
- Impacts public order, dececy or morality
- In relation to contempt of court
- Defamatory
- Incites an offence
“The only word under Section 79(3)(b) is ‘unlawful’, now [under the rules] they are expanding on all of that, all of which is covered under Section 69A. I ask myself, if this is the provision of Section 79(3)(b) read with Rule 3(d), why is 69A required?” Raghavan pondered. He added that if the reasons for content takedowns are identical, then why is the government not asking for them under Section 69A?
Advertisements
Ragavan went on to say that in certain aspects, Rule 3(d) goes beyond the scope of 69A. “By a rule, you cannot expand the scope of an Act, that is a well established position,” he explained.
Bombay High Court on Rule 3:
Furthermore, he explained that the 3(1)(b) part 5 [which deals with the fact-check unit] was struck down by the Bombay High Court. Raghavan went into Justice G.S. Patel’s judgment in the case, which also mentioned safe harbor (under Section 79). Justice Patel had explained that safe harbor lies at the heart of freedom of speech and expression. He had supported the argument that if the government confronts intermediaries with the loss of safe harbor, “it is a form of directing or mandating censorship.”
Details of the Solicitor General’s response:
On the annexures:
Solicitor General of India Tushar Mehta stated that the government would remove the two annexures from its response if that was the only reason why Raghavan wanted a rejoinder. He explained that the point of the notices was only to illustrate that bad actors were misusing X. However, the court eventually settled on keeping them a part of the response and the court records.
Nothing bad has happened to X so far:
Mehta explained how safe harbor worked, he said that it protected X as an intermediary from being taken to court over something that someone posts on their service. However, today, nothing of this sort has happened.
“Right now, the stage is that we can intimate them that this is illegal. I’ll have to defend it on 19(1)(a) ground 19(2) [of the Indian Constitution] etc, I’ll have to show the scheme of the Act and satisfy the court that it is in the larger public interest. But in the meanwhile, nothing is going to happen, nothing can happen,” Mehta explained.
Simply put, till someone takes X to court over any specific matter, even if the company were to not comply with a takedown notice and lose safe harbor for that specific piece of content which it didn’t take down, nothing would happen to the platform.
Platforms have to abide by Indian law:
Pushing back against X’s demand to stay out of the Sahyog Portal, Mehta argued that any platform operating in India would have to abide by Indian laws unless the court sets said laws aside. “Joining a portal is not something so grave that you need to have interim protection. You join the portal, everything will be subject to the outcome [of the case],” he added.
What did the court conclude?
With the consent of both the parties the court decided that the next date of hearing for the case would be April 24, 2025. The understanding from both parties was that this would be the final hearing in the case.
Note: The headline was changed for clarity based on editorial inputs on 04/04/2025 at 4:24 pm.
Also read:
Support our journalism: