Section 69A IT Act and the expanding architecture of digital censorship in India

The architecture of online speech regulation in India is undergoing a profound transformation. What was once conceived as a narrowly tailored mechanism for addressing exceptional threats to public order, national security and other constitutionally recognised interests has evolved into a far more expansive system of executive control over digital expression.

The empirical record illustrates the scale of this shift. Between 2018 and October 2023, the Ministry of Electronics and Information Technology (MeitY) issued approximately 6,000 content-blocking orders annually under Section 69A of the Information Technology Act, 2000 (IT Act). In 2024, that figure more than doubled to around 12,600, before rising further to approximately 24,300 in 2025. The Sahyog portal, ostensibly established as a cybercrime grievance mechanism, generated 2,312 orders across 19 platforms between October 2024 and October 2025 alone.

The constitutional significance of this shift has been obscured by an assumption that has not been adequately interrogated: the assumption that because the Supreme Court upheld Section 69A in Shreya Singhal v. Union of India, the provision's administrative implementation is constitutionally settled. That assumption is wrong on two counts. First, the Court's upholding of Section 69A was premised on the existence and efficacy of procedural safeguards that have, as this paper documents, been hollowed out in practice. Second, and more fundamentally, the proposed amendments to the IT Rules, 2021, released on March 30, 2026 while the Bombay and Madras High Court challenges to the 2021 Rules remain pending, do not refine the existing architecture. They reconstitute it in ways that are structurally incompatible with Shreya Singhal's ratio. The constitutional questions are, therefore, not settled. They are reopened.

Reasonableness, proximity and limits of executive discretion

The constitutional scheme of Article 19 is often described as balancing individual liberty against collective interests. While formally accurate, this description understates the structural asymmetry built into the Constitution. Article 19(1)(a) does not merely permit speech; it reflects a positive commitment to democratic self-governance. Article 19(2)'s grounds for restriction are enumerated and exhaustive. In Romesh Thappar v. State of Madras, the Supreme Court held that restrictions are valid only if they fall squarely within these categories, not merely analogous ones.

The statutory text

Section 69A of the IT Act, inserted by the Information Technology (Amendment) Act, 2008, empowers the Central government or an authorised officer to direct intermediaries to block public access to information where such blocking is found 'necessary or expedient' in the interests of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States, public order, or the prevention of incitement to the commission of any cognisable offence.

The inclusion of 'expedient' alongside 'necessary' has attracted limited scholarly attention. While 'necessary' implies proportionality and the absence of less restrictive alternatives, 'expedient' denotes administrative convenience and may permit measures that are neither proportionate nor minimally restrictive. Because 'expedient' does not appear in Article 19(2), it arguably introduces a more permissive statutory standard than the Constitution permits. The Court in Shreya Singhal did not examine this term, upholding Section 69A largely on the basis of procedural safeguards.

Shreya Singhal: A conditional upholding

The constitutional validity of Section 69A was upheld in Shreya Singhal v. Union of India subject to conditions whose significance is often underestimated. The Court's decision was not an endorsement of executive content control but a conditional validation premised on specific safeguards: written reasons, a hearing before the Designated Officer, review by the Inter-Departmental Committee and the availability of judicial review.

The Court's treatment of intermediary liability is equally significant. In Shreya Singhal, the Court held that intermediaries lose safe harbour under Section 79 only upon receiving actual knowledge through a court order or a valid Section 69A notification, not through private complaints or informal governmental advisories.

Confidentiality as a constitutional defect

The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (Blocking Rules) establish a procedure that, on paper, provides multiple opportunities for scrutiny and representation: an originating request that must identify the specific content and the legal ground; review by a designated officer; consideration by the Inter-Departmental Committee; a right of hearing for the person 'in respect of whom the request has been received'; and a requirement of written reasons. In practice, this procedural architecture has been inverted by a single provision: the requirement that all blocking orders be treated as strictly confidential.

The constitutional pathology of confidentiality in this context is not that secrecy is always impermissible in matters touching on State security. It is that the confidentiality requirement in the Blocking Rules operates as an absolute, without regard to whether any specific order touches on genuine security concerns and without providing any alternative mechanism through which the affected person might obtain effective review.

Rule 3(4) and the perversion of safe harbour

The proposed Rule 3(4) of the draft IT Rules amendments of March 2026 would make a platform's entitlement to safe harbour protection under Section 79 of the IT Act conditional on compliance with a wide array of government-issued instruments, including advisories, directions and standard operating procedures. To understand why this proposal is constitutionally untenable, it is necessary to be precise about what Section 79 does and what Shreya Singhal held that it does.

Section 79(1) grants intermediaries immunity for third-party content, subject under Section 79(2) to their functioning as passive conduits, observing due diligence and complying with prescribed guidelines. In Shreya Singhal, the Court read Section 79(3) down, holding that 'actual knowledge' arises only through a court order or a valid Section 69A notification and not through private complaints or informal governmental advisories.

Rule 3(4) directly inverts this scheme. By conditioning the Section 79 immunity on compliance with advisories and directions that are not formal Section 69A orders, it creates a regime in which platforms must choose between two forms of legal jeopardy: comply with informal governmental pressure and suppress speech that has no demonstrated statutory or constitutional warrant for suppression, or refuse to comply and risk losing the immunity that makes their business legally viable. This is not a genuine choice. Platforms with hundreds of millions of Indian users will not risk losing Section 79 immunity over the speech of any individual creator or journalist.

The Inter-Departmental Committee

The Inter-Departmental Committee (IDC) is the principal internal safeguard under Section 69A. The draft amendments empower it to examine any undefined 'matter' referred by the Ministry of Information and Broadcasting. This transforms the IDC from a body reviewing proposed blocking orders into one with a proactive content-examination mandate, the scope of which is effectively determined by ministerial discretion.

The institutional logic of this transformation is worth examining carefully. A body that simultaneously functions as a reviewer of executive blocking proposals and as a proactive content examiner initiated by executive referral cannot maintain the independence that its review function requires.

Data retention and the surveillance overhang

The draft amendments clarify that platform data retention obligations under the IT Rules operate in addition to, and not in substitution for, any obligations arising under other laws. The practical effect is that personal data, browsing histories and communication records may be retained for extended and indefinite periods, depending on the operation of overlapping statutory mandates across the IT Act, the Telecommunications Act, 2023, and sector-specific regulation.

The relationship between data retention and free speech suppression is not merely speculative. Extended retention of expressive data creates an asymmetric informational relationship between citizen and State: the State acquires a comprehensive archive of each citizen's expressive history while the citizen has no corresponding access to what the State has collected or how it may be used. This asymmetry is constitutionally significant not only under the right to privacy recognised in KS Puttaswamy v. Union of India, but under Article 19(1)(a) itself. When a citizen knows that her expression is being archived in its entirety and may be retrieved at the State's discretion at an uncertain future date for purposes she cannot anticipate, the rational response is silence.

Proportionality as discipline

Section 69A must be governed by proportionality in its full constitutional sense. This requires identifying the statutory ground invoked, establishing a factual basis and rational connection, considering less restrictive alternatives, and assessing proportionality. Although the Blocking Rules formally incorporate some safeguards, they often operate only formally.

Disclosure, hearing and the right to challenge

The confidentiality provision in the Blocking Rules requires statutory amendment. There is no constitutional basis for blanket confidentiality applicable to all blocking orders. Confidentiality should be preserved only where the designated officer certifies in writing that disclosure would prejudice a specific national security or law enforcement interest, subject to in camera judicial verification. In all other cases, the existence of the order, the ground invoked and sufficient factual particulars to enable meaningful challenge should be disclosed to the affected person within a prescribed period.

The right to be heard should likewise be operationalised rather than treated as a procedural formality. In emergency cases under Rule 9, affected persons should enjoy an enforceable right to a prompt post-decisional hearing, with the order lapsing if no hearing occurs or if the emergency ground is not substantiated.

Independent oversight and structural reform of the IDC

The IDC, as presently constituted, cannot perform the constitutional function of an independent pre-decisional check. Its members are drawn from executive departments, its proceedings are secret and its proposed expansion into proactive content examination further compromises its independence.

The regulatory choices embodied in the draft IT Rules of March 2026 will shape not only platform governance, but also the extent to which citizens may speak, critique and participate in public life. More fundamentally, they raise the constitutional question whether India's digital public sphere will be governed by the rule of law or by executive discretion; whether freedom of speech under Article 19(1)(a) will remain an enforceable right or gradually become contingent upon political acceptability; and whether the constitutional settlement articulated in Shreya Singhal, premised on meaningful procedural safeguards, will survive in substance rather than merely in form.

The brief consultation period for the March 2026 draft amendments, which closed approximately two weeks after publication, is itself symptomatic of this tension. Constitutional changes of this magnitude require legislative scrutiny rather than a ministerial consultation process. The effective scope of free speech under Part III cannot be determined solely through subordinate legislation, without parliamentary deliberation, judicial oversight, or transparency sufficient to enable citizens to understand the conditions governing their expressive freedom. The constitutional compact on this point is clear; the regulatory record reflects a systematic departure from it.

Nancy and Akshat Mehta are Ph.D. Scholars at Hidayatullah National Law University, Raipur, Chhattisgarh.