From Intermediaries to Individuals

**Muskan Jain and Sarakshi Kapila

Introduction

The visual of a journalist reporting on the violence in Manipur via livestream, and then losing the video hours afterwards, with no notice or recourse, is not an anomaly but a caveat. It is indicative of a more significant change in the digital regulatory environment of India, in which the line between citizen and publisher is increasingly becoming blurred. The ordinary users of the Draft IT (Intermediary Guidelines and Digital Media Ethics Code) Rules (Second Amendment), 2026 (“Draft (Second) IT Amendment Rules, 2026” or the “Draft Rules”), published by MeitY with an abridged consultation period of just 15 days, run the risk of being subject to a compliance regime not meant to apply to institutional media by posting, commenting on, or sharing so-called “news and current affairs.” What on the surface seems to be a regulatory update, therefore, is revealed to be an issue of constitutional consequence.

This article discuss the expansion of state regulation from publishers to users in the proposed amendments, and demonstrate that this expansion contravenes the freedom of speech and expression under Article 19(1)(a). It examines the Draft Rules in the context of constitutional doctrine, judicial developments, and comparative global framework; the deployment of safe harbour as a form of indirect censorship, and the structural chilling effect of the amendment. It argues that the Draft Rules do not further digital regulation, but instead represent a pivotal moment in reimagining who is allowed to speak, and under what circumstances, in the constitutional democracy of India. 

What the Draft Rules Actually Say?

A paramount alteration in the regulatory framework of online speech regulation in India has been done through the Draft IT Rules (Second Amendment), 2026. The amendments proposed by MeitY to the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, aim to increase state regulation of digital content, particularly of news and current affairs, to encompass not only institutional publishers but also ordinary users who create, share, or comment on such content. What used to be a framework aimed at professional media establishments is therefore re-framed to include the everyday online speakers.

This transformation is operationalised with the help of two structural changes. First, Rule 8 of Part III is suggested to be extended to include specifically: intermediaries and news and current affairs content hosted by non-publisher users. This, in practice, puts creators, YouTubers, and even individual citizens under the Code of Ethics, a regime, originally, aimed at the regulated news entities. Second, Rule 14(2) extends the scope of inter-departmental committees, permitting them examine not only complaints or grievances arising from the grievance redressal mechanism, but also any “matters” referred to it by the Ministry. This turns the mechanism from a reactive grievance redressal body into a potentially proactive oversight authority.

Simultaneously, the Draft Rules pioneer what may be termed a transparency paradox. As it solicits comments publicly, MeitY has already provided that any submissions will be confidential, and will in no case be disclosed to a third party at any point, which begs the question of what exactly the participatory rulemaking is. To add to this, is the scope of the definition of news and current affairs content which incorporates anything that is newly received or otherwise noteworthy on socio-political, economic or cultural matters. The outcome is a definitional net that is broad enough to include not only journalism, but also the everyday acts of digital expression.

The Constitutional Foundation: Article 19 and its Limits

Freedom of speech is at the heart of the debate on the Draft IT Rules, 2026. Article 19(1)(a) of the Constitution gives to all citizens the right to freedom of speech and expression – a right that the Supreme Court has explicitly applied to the online domain. The internet is no longer merely a medium, but a key site for exercising constitutional freedoms, therefore, any state regulation of online expression must meet a high constitutional threshold.

This right is however, not absolute. Under Article 19(2), restrictions can only be imposed on certain grounds; sovereignty and integrity of India, security of the state, public order, decency and morality, defamation, and incitement to an offence. Constitutional jurisprudence treats these grounds as closed, not open to expansion through executive action or subordinate legislation.

Against this framework, The Draft Rules 2026 raise grave concerns. By defining “news and current affairs content” as a category of speech, the Rules are seeking to control expression not in accordance with harm identified under Article 19(2), but rather in regard to the nature of the content or the speech. This move lacks constitutional footing. The regulatability of speech is not merely because it resembles journalism; it needs to be within one of the narrowly defined exceptions to Article 19(2). Any effort to exert greater control over content by delegated legislative action is likely to be well beyond constitutional boundaries and the parent statute itself.

Moreover, contemporary constitutional law demands that all restraint of fundamental rights must meet the proportionality test, which was laid down in Justice K.S. Puttaswamy v. Union of India. This involves a four-part test; (1) the legality, (2) legitimate aim, (3) necessity, and a (4) balance between rights and state interests. The regulatory design as it is currently designed showcases minimal consideration of these requirements, as it neither clearly anchors its measures in narrowly tailored objectives nor explains how the restrictions are the least intrusive means, supported by evidence, to achieve those aims The Draft Rules, in this sense, are inherited with a more fundamental constitutional flaw, one, which does not only extend merely to policy wisdom, but to constitutional validity itself.

The Judicial Battlefield: Three Courts, One Pattern

The Draft IT Rules, 2026 do not awaken in solitude. They must be placed in a persisting constitutional struggle over how to regulate online speech; a struggle which is already underway in a number of courts. The Rules themselves do not seem to represent a fresh starting point in terms of regulatory activity but rather a continued course of state action which has been subjected to judicial review on numerous occasions.

The doctrinal starting point remains Shreya Singhal v. Union of India, in which the Supreme Court struck down Section 66A of the IT Act for being vague and overbroad. Notably, the Court justified the upholding of Section 69A only in that it was a narrowly construed provision that did not lack multiple safeguards, and it was evident that power over online speech must be tightly structured and procedurally constrained. The Draft Rules 2026 however, provide regulatory control on the user-generated content without equal protection mechanisms, which present immediate apprehensions within this framework.

These concerns were reaffirmed in Kunal Kamra v. Union of India, where the Bombay High Court invalidated the provisions of the IT Rules, 2023 on grounds of vagueness, procedural inadequacy, and excessive imposition on digital speech. The Court acknowledged the chilling effect that such regulations have on free expression. The further stay of the Fact Check Unit by the Supreme Court, on top of the Chief Justice noting that the case presents severe constitutional issues, highlights the fact that the constitutionality of such structures is yet to be determined.

A similar trend can be observed in the case of X Corp. v. Union of India, in which the Sahyog Portal, which allows the executive to issue takedown requests of large-scale content without any judicial oversight, was approved by the Karnataka High Court. This can be criticised as facilitating self-censorship by proxy with the intermediaries under threat of losing safe harbour being forced to take down any content that falls outside the confined scope of Article 19(2).

Perused collectively, these cases are more than just a series of judicial interventions, they demonstrate a broader regulatory trend. Where courts invalidate a single mechanism, there is a structurally related framework manifested by a different procedure process. The Draft Rules 2026 essentially reinstate the content oversight apparatus that three High Courts had criticized as problematic, and which is now being implemented via an alternate procedure door. This is not simple regulatory reiteration; it starts resembling circumvention of the constitution.

This tendency intensifies the ultra vires issue as well. The Information Technology Act, 2000 empowers the drafting of regulations about intermediary due diligence and selective blocking of content, not the establishment of a quasi-judicial regulatory system that regulates the speech of individual users. The Draft Rules run the risk of going beyond the confines of the parent statute by imposing on regular citizens, publisher-like duties. In its examination of the Fact Check Unit, the Bombay High Court had already ruled that this kind of an expansion is not within the scope of the power granted by the IT Act. The argument is even stronger in the case of a framework that specifically targets non-publisher users.

Weaponisation of the Safe Harbours

Section 79 of the IT Act is a legal shield, or a safe harbour, designed specifically to protect platforms from liability arising out of the content being posted by their users and interfaces. Yet, several caveats lie in entailing this protection. This can be seen through Section 79(3), which removes protection in cases where the intermediary has: firstly, conspired, abetted, aided, or induced the unlawful act; secondly, has actual knowledge and fails to act expeditiously; or thirdly, fails to observe due diligence as prescribed.  Failure to meet these requirements can lead to civil and criminal liabilities, as was seen in Christian Louboutin SAS v. Nakul Bajaj. 

At first glance, these seem to be balanced and a neutral mechanism. The reasonable expectations out of the Draft IT Rules were to structure this process to make it more accessible and streamlined. However, they are effectively weaponizing this protection. According to Rule 3(4), intermediaries are not mandated to comply with “Ministry-issued clarifications, advisories, directions, SOPs, codes of practice, and guidelines, forming part of due diligence under section 79.”  This creates “jawboning,” which, as defined by Cathy Gellis, refers to a situation wherein legal compulsion forces the suppression of speech that could not be targeted by law directly before.  This turns conditional immunity from liability into an engine for prior restraint, a move the Supreme Court explicitly rejected in Shreya Singhal v. Union of India. 

The reasonable inference of the new rule is that the draft expands upon the legal consequences of MeitY-issued notices, wherein the government could use such notices as a “backdoor mechanism” to achieve compliance-related outcomes. Social media platforms would be required to go through the strenuous task of identifying which user-generated post is “news content”, which raises technical and feasibility concerns. When risk-averse platforms over-remove content to be in the safe harbour, the state automatically achieves its goals of censorship without even having to file a case. Does the draft allow Section 79 to be a shield or a sword? 

The Structural Chilling Effect of Rule 3(4)

Governmental measures that inhibit speech by discouraging its expression by preventing or exposing it to risk of liability or punitive measures may infringe Article 19(1)(a) even if it does not involve the imposition of actual censorship. The chilling effect of Rule 3(4) is just such – it encourages platforms to act pre-emptively to suppress speech, due to the risk of regulation and the potential for losing safe-harbour protection. The concern is not that it is being censored, but that it has been over-removed due to risk aversion and uncertainty.

By requiring platforms to preemptively remove content on pain of losing safe-harbour protection, absent established harm or judicial process, the rule conscripts intermediaries into anticipatory suppression. Platforms, rationally risk-averse, suppress proactively. In Shreya Singhal v. Union of India, the Supreme Court cautioned against rules forcing platforms into the role of censors to escape liability.

The amended regime institutionalizes this chilling effect by transforming the role of the Inter-Departmental Committee from a reactive body responding to complaints into part of a broader architecture of continuous surveillance and anticipatory moderation. Platforms are encouraged to use technology that filters and blocks potentially objectionable content before it appears in the public sphere, not because a court deems the speech illegal, but because the regulatory framework benefits those who filter out the potentially objectionable content. As a result, speech may disappear before any independent forum evaluates its legality.

Rule 3(4) thus enables suppression without meaningful procedural safeguards: no established harm required, no court review, often no government notice. The expansion of “news and current affairs” to encompass user-generated material means creators operate under permanent removal threat. For instance, between 11 and 24 March 2026 alone, 69 account-level restrictions occurred on X, targeting satire and political dissent. This selective pattern reinforces the chilling effect, when removal targets certain viewpoints, the message is unmistakable.

The constitutional injury thus lies in the establishment of a system that is usually deceptive in order to prohibit legitimate expression. Rule 3(4) encourages intermediaries to silence controversial speech in large numbers, by committing them to platform obligations, by establishing algorithmic filters, and by threatening enforcement penalties. Under Article 19(1)(a) the chilling effect is constitutionally suspect not because it actually prohibits speech, but because it causes a structural effect which results in widespread self-censorship and over-compliance.

Global Comparative Lens

Across almost every major democracy, countries have grappled with the problem of platform regulation, and one principle remains constant. The baseline is that regulatory burden cannot be anticipatory, but rather be tethered to specific and identifiable harms. India will breach this consensus in a manner that goes against the global precedent in democracies. 

For instance, the EU’s Digital Services Act is considered to be the most sophisticated and architecturally unique regulation in force today.  Article 8 of the Act specifically prohibits member states from imposing general monitoring obligations. The DSA places burdens on the platforms, and not the speaker, even in the face of actual harms through notice-action processes. Similarly, Singapore’s POFMA applies only to targeted false statements of fact and mandates correction on a case-by-case basis, never a categorical regime reigning content at large.  The UK’s Online Safety Act also carves out explicit exemptions for journalism online and recognised news publishers.  

The Draft IT Rules intend to single out “news content” as one requiring a three-tier oversight framework, but the rules are not doing what a democracy intends to promote. If enacted, India would stand alone among major democracies in subjecting an ordinary citizen’s video commentary on public events to institutional government oversight before any harm has occurred, been alleged, or been assessed. That is not regulating. That is categorisation as control.

Conclusion and the Way Forward 

In light of such adverse circumstances, India has to collectively think of a way forward. Meaning legal reform is necessary to shift power balances back towards the citizens and their rights. Some of these reforms can look like mandatory prior notice, judicial pre-authorisation, etc. For instance, Platforms should be required to provide users with notice and opportunities to contest removal before their content is ultimately silenced. This would allow the precedent in Shreya Singhal v. UOI to be followed. Additionally, the Inter-Departmental Committee should not be allowed to be its own judge. Such proactive overviews should ultimately require a Magistrate-level order to prevent self-referral. 

The Draft IT Rules should not enable the overlooking of principles established by judgments like the Puttaswamy test. The four-part test in Puttaswamy should be explicitly incorporated into the rules to prevent ambiguity. Subsequently, sunset clauses in the rules would ensure that they do not lapse unless they are formally debated and re-examined by Parliament. India should strive towards protecting those acting in good faith, by re-igniting the safe harbours conditions in their entirety. 

Conclusively, the rules are more than just a regulatory upgrade; they are a stress test. We must respect interim judicial protections and pursue these objectives through transparent parliamentary legislation rather than executive decree. The law that regulates the act of witnessing is not information policy; it is the architecture of forgetting.

**Muskan Jain and Sarakshi Kapila are 4th Year Law Students at Rajiv Gandhi National University of Law, Punjab

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.