Explained: The legal framework governing takedown of online posts in India

Experts say online posts cannot be removed merely for criticising the government, with takedown powers limited by constitutional safeguards and statutory provisions

The Centre cannot direct the removal of online posts merely because they are critical of the government, according to experts, who said any such political criticism is protected under Article 19(1)(a) of the Constitution.

 

Restrictions are permissible only on the grounds specified under Article 19(2), such as sovereignty and integrity of India, security of the State, public order, decency, defamation and incitement to an offence.

 

The Supreme Court's ruling in Shreya Singhal v. Union of India (2015) remains the key safeguard. The Court struck down Section 66A of the Information Technology (IT) Act, which punished people for sending offensive messages online, and held that mere discussion or advocacy, however critical, is protected unless it amounts to incitement.

 

Ankit Sahni, Partner at Ajay Sahni Associates LLP, said criticism of the government is not an offence by itself and remains protected under Article 19(1)(a).

 

According to him, criminal action is permissible only when a post satisfies the ingredients of a specific statutory offence, while blocking under Section 69A must be justified on constitutionally recognised grounds.

 

Tushar Agarwal, Founder and Managing Partner of C.L.A.P. JURIS, said Section 69A has become the government's principal tool for regulating online speech after the Supreme Court struck down Section 66A.

 

He said the focus of legal challenges has increasingly shifted to whether blocking orders satisfy the tests of transparency, proportionality and procedural fairness.

 

Raheel Patel, Partner at Gandhi Law Associates, said mere political dissent or criticism of public policy does not constitute a criminal offence.

 

He added that any blocking order or prosecution remains subject to judicial review and can be challenged before the High Court on constitutional and procedural grounds.

 

Section 69A, Information Technology Act, 2000:

 

This is the primary provision used to block online content. It empowers the Central Government to direct intermediaries to block access to content on grounds including sovereignty, national security, defence, friendly relations with foreign States and public order. The power is exercised through the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.

 

Section 79, IT Act and IT Rules, 2021:

 

Intermediaries such as social media platforms enjoy safe harbour protection only if they comply with lawful government directions or court orders. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, require platforms to remove or disable access to unlawful content upon receiving valid legal directions. Rule 3(1)(d) of the Information Technology Rules requires online intermediaries to remove or disable access to unlawful content upon receiving a court order or a reasoned government intimation.

 

Section 163, Bharatiya Nagarik Suraksha Sanhita (BNSS):

 

In urgent situations involving public order, authorities may issue preventive orders restricting certain activities, which can include directions affecting the dissemination of online content.

 

Bharatiya Nyaya Sanhita, 2023 (BNS):

 

Criminal prosecution is possible only where the post discloses a specific offence. Relevant provisions include Section 152 (acts endangering sovereignty, unity and integrity of India), Section 353 (false statements or rumours likely to cause public mischief), Sections 196 and 197 (promoting enmity or making assertions prejudicial to national integration), and Section 356 (criminal defamation).

 

In cases involving terrorism or unlawful activities, provisions of the Unlawful Activities (Prevention) Act (UAPA) may also be invoked.