The boundaries of rule making: Reassessing the proposed IT Rules Amendment 2025

As India moves towards regulating synthetic and AI generated content online with the draft 2025 amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“ IT Rules 2021”), released on October 22, 2025, this article raises and addresses a deeper, and possibly more sinister, constitutional question: can the executive rewrite legislative policy under the guise of delegated power?

The Ministry of Electronics and Information Technology (“MEITY”) has invited public comments on the draft 2025 amendments to the IT Rules 2021 until November 6, 2025. The amendments, clearly introduced in response to the emerging risks posed by synthetically generated information and AI-enabled misinformation, seek to strengthen intermediary responsibility in the digital ecosystem to tackle this risk.

While the objectives are both legitimate and timely, the proposed text raises fundamental questions about the scope of delegated legislation under the Information Technology Act, 2000 (“IT Act”). The amendments appear to introduce substantive legal duties that go beyond the text and intent of Section 79 of the IT Act, a provision that carefully balances intermediary neutrality with accountability. It is imperative that these questions of legislative competence and constitutional consistency are addressed before the draft is finalised.

Section 87 of the IT Act grants the Central government power to create rules to implement the Act’s provisions. Specifically, subsection (2)(zg) allows the government to establish guidelines for intermediaries under Section 79(2). This rule-making authority is derived from and subordinate to the Parliament’s legislative power, intended to support the Act’s implementation rather than entirely modify its content.

The IT Act itself embodies a deliberate legislative balance. Intermediaries are exempt from liability for third-party content, provided they remain neutral and only act upon actual knowledge of illegality. This model reflects a post facto diligence regime where intermediaries respond once unlawful content is identified rather than policing content pre-emptively. Any change that reverses this model would amount to a legislative reform, not executive implementation, and therefore must be undertaken by the Parliament through an amendment to the Act. Such a change cannot be brought about by exercising the rule-making power under Section 87.

The draft introduces two significant departures from the existing framework.

First, it proposes an expanded due diligence obligation requiring all intermediaries to ensure that synthetically generated information carries visible labels or embedded metadata identifiers. It further directs intermediaries to disable access to such information if it lacks the identifiers. In order to mitigate the apparent inconsistency between mandating intermediaries to ensure labelling of synthetically generated information and and the neutrality principle to be observed by intermediaries under Section 79(2), a new proviso has been added under Rule 3(1)(b), stating that such actions “shall not amount to a violation” of clauses (a) or (b) of Section 79(2).

Second, it imposes a verification duty on Significant Social Media Intermediaries (“SSMIs”). SSMIs must require users to declare whether their content is synthetically generated and must use appropriate technical means to verify the accuracy of those declarations. Content may only be displayed after such verification and must carry a visible label identifying its synthetic character.

In combination, these amendments transform the intermediary’s role from that of a neutral carrier of content into a mechanism for verification and modification of the content itself. They not only redefine the intermediary’s obligations but also, in practical effect, establish a form of pre-publication screening regime unbeknownst to the framework of the IT Act.

The introduction of a proviso stating that intermediaries shall not lose safe harbour for removing or modifying synthetic content creates an internal conflict with the IT Act. Section 79(2) of the IT Act grants immunity only if the intermediary does not initiate, select, or modify the information transmitted. The precondition of non-modification is a statutory safeguard, preserving neutrality.

By imposing, through delegated legislation, a duty to label, embed identifiers, and verify content, and then simultaneously effectively declaring that such actions will not amount to “modification,” the rule seeks to redefine what the Parliament has expressly prohibited under the parent Act. This is, in the garb of an amendment to a delegated legislation, effectively a re-legislation of the law. A delegated rule cannot rewrite or reinterpret the substantive conditions for statutory immunity granted under the parent Act.

The effect is that the executive, through subordinate legislation, is attempting to alter the legislative balance struck by the Parliament. Such an amendment by exercise of the rule-making power is at risk of being beyond the power conferred under Section 87, as it substitutes legislative judgment with executive discretion, a move that the Constitution does not permit.

There is a distinction between procedural and substantive rule making, and this distinction is critical. A procedural rule may simply elaborate how an intermediary must respond or act upon receiving knowledge of unlawful content. A substantive rule, however, creates an entirely new legal obligation that alters the liability framework itself.

These amendments cross this boundary. They do not simply describe how intermediaries must act. They change what intermediaries are required to be. It redefines the role of intermediaries from neutral carriers of content to pre-emptive regulators and reviewers of content authenticity. Such a transformation is, on the face of it, legislative in nature and falls outside the scope of delegated power under Section 87.

Parliament’s legislative function is accompanied by deliberation, public debate, and accountability. Rulemaking, by contrast, is a closed administrative act executed by the executive to further the enablement of the legislated enactments. Allowing substantive duties like verification, screening, or pre labelling to be introduced through rules circumvents Parliamentary oversight.

If the government believes that intermediary neutrality should evolve to include proactive AI content management, that policy choice must be placed before Parliament through an amendment to the IT Act. It cannot and should not be achieved indirectly by modifying the IT Rules. Doing so would invert the constitutional hierarchy, effectively making the Rules the source of substantive law and the Act its subsidiary, which is impermissible in principle.

The underlying policy objective of combating deepfakes and synthetic misinformation is unexceptionable and must be appropriately addressed. However, the method chosen must respect legislative boundaries and must pay obedience to the rule of law. The proposed obligations not only create new categories of conduct but also expand the statutory conditions of immunity under Section 79. These changes alter the legal position of intermediaries and affect the rights of users. Both are matters that require Parliamentary deliberation, not executive notification.

Before the draft amendments are finalised, it would therefore be prudent for the government to subject these provisions to detailed legal scrutiny, including a clear assessment of whether the verification and labelling clauses fall within the permissible limits of delegated legislation.

The verification obligation for Significant Social Media Intermediaries (“SSMIs”) raises a separate and equally significant concern. By requiring SSMIs to verify user declarations before the content is displayed, the amendment creates a pre-publication control mechanism. The intermediary must check, mark, or withhold content until it has been examined or confirmed as synthetic or otherwise. In effect, the intermediary has to take on an investigative and adjudicative function for each and every content.

This verification operates as a form of pre censorship, where publication is conditional on prior review and approval, not by a statutory authority but by private intermediaries acting under governmental direction. Such a regime is not envisaged in the parent Act. Section 79 provides immunity for post facto diligence. It does not envisage or authorise an ex ante verification system. The executive’s power to make rules “to carry out” the Act cannot be read and should not be read so widely and liberally so as to extend to creating new duties or liabilities which are not even contemplated by the Act itself.

In effect, the amendments introduces a new substantive condition precedent to publication, one that impacts the right to publish or express online, without legislative sanction. This not only exceeds the statutory framework of Section 79 but also raises constitutional concerns under Article 19(1)(a), since restrictions on speech must be imposed “by law” enacted by Parliament, not by executive rule making.

The proposed amendments reflect the government’s determination to address the challenges of synthetic media, which is a laudable intent. Yet they also illustrate the tension between policy innovation and constitutional discipline. Delegated legislation must operate within the framework of the parent statute. It cannot rewrite or expand it.

By imposing pre verification, content labelling, and proactive moderation duties, and by redefining the statutory meaning of “modification,” the draft amendment risks exceeding the limits of executive authority. These are substantive policy changes that Parliament alone is empowered to enact. To ensure both legality and legitimacy, the Government may consider refining the draft to align with Section 79’s existing due diligence model or, alternatively, initiate a formal amendment to the IT Act to accommodate this evolved framework.

Until then, the proposed amendments, in their present form, raise a serious question that cannot be ignored: can delegated rulemaking be used to change the substantive law itself? The answer, constitutionally and unequivocally, must remain no.

About the authors: Sidharth Chopra is a Partner and Surabhi Pande is an Associate Partner at Saikrishna & Associates.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

If you would like your Deals, Columns, Press Releases to be published on Bar & Bench, please fill in the form available here.