In a pivotal development in the legal debate over online content regulation, X Corp (formerly Twitter) told the Karnataka High Court on Tuesday that the current application of Section 79 of the Information Technology (IT) Act allows government officials to issue content takedown directives without any structured oversight, raising serious constitutional concerns.
Appearing before Justice N Nagaprasanna, Senior Advocate K G Raghavan, representing X Corp, argued that unlike Section 69A of the IT Actโwhich requires a reasoned decision from a committeeโSection 79 enables thousands of officers across jurisdictions to block content unilaterally based on personal interpretations of what is โunlawfulโ or โimmoral.โ
โSection 79 lacks institutional safeguards and results in arbitrary, inconsistent enforcement. This violates Article 14 of the Constitution,โ Raghavan submitted, warning that such unchecked executive action could turn the law into a tool for subjective censorship.
Raghavan also contended that Section 79(3)(b), often cited by the government for takedowns, cannot function as an independent source of blocking powers. If at all it is considered, he said, it must be read in conjunction with the more procedural Section 69A.
โCan a government officer pass a blocking order from their office without oversight? That reduces legality to personal opinion โ โI say so, therefore it is soโ,โ he stated, calling the current regime opaque and legally untenable.
He further highlighted the cultural and regional subjectivity of online content, stating that what may be deemed offensive in one area could be acceptable in another, reinforcing the need for standardized and transparent procedures.
Clarifying its stance, X Corp maintained that it was not seeking exemption from Indian law. โWe are not above the law. We are seeking procedural fairness. The way Section 79 is being applied today exposes us to civil and criminal penalties,โ Raghavan said, citing Section 45 of the IT Act.
He also referred to Supreme Court rulings affirming that freedom of expression standards must apply equally to all forms of media, including digital platforms. Responding to the judgeโs observation that the cited case predated the 2021 IT Rules, Raghavan pointed to a Bombay High Court judgment that struck down parts of the 2023 amendments, including the Fact Check Unit clause, for violating legal safeguards.
Raghavan also challenged Rule 3(1)(d) of the 2021 IT Rules, arguing it allows government-mandated content removal by intermediaries without sufficient checks and undermines the separation of powers.
While acknowledging that X Corp, as a foreign entity, cannot claim protection under Article 19 (freedom of speech), Raghavan insisted that Article 14 โ guaranteeing equality before the law โ applies universally. Any law failing the test of procedural fairness under Article 14, he asserted, is unconstitutional.
In response, Solicitor General Tushar Mehta dismissed X Corpโs arguments as โX-centric,โ stressing the need to also consider the complainantโs rights and the platformโs public influence. โIf defamatory content is posted and the intermediary doesnโt act, the victim has no immediate remedy. Just like a newspaper is held accountable, intermediaries must also bear responsibility,โ Mehta said.
Following a day-long hearing, the High Court posted the matter for further arguments on July 11. The Union government is expected to present its comprehensive response on July 17.
