The Supreme Court Examines IT Rules

March 4, 2025

The Supreme Court has sought a response from the central government regarding a petition challenging the practice of taking down social media posts without prior notice or a fair hearing for the content creator. The petition, filed by the Software Freedom Law Centre (SFLC), argues that this practice violates principles of natural justice and the right to free speech under Article 19(1)(a) of the Constitution.

A bench of Justices B.R. Gavai and Augustine George Masih observed that if a person behind a social media post is identifiable, they should be given notice before the post is taken down, as reported by Bar and Bench. The court issued a notice to the government in response to the SFLC’s plea, which highlights how social media platforms like X (formerly Twitter) often remove content based on government directives without informing the user.

Senior Advocate Indira Jaising, representing the petitioners, contended that while the government has the authority to take down content, it must inform the person who posted it. She pointed out that the current legal framework, particularly the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, allows the government to serve notice either to the intermediary (such as a social media platform) or the content creator. The use of “or” in the rule results in only the intermediary being notified, leaving the original creator without a chance to contest the decision.

Jaising cited the case of Senior Advocate Sanjay Hegde, whose social media account was suspended twice in quick succession due to content deemed by Twitter, now X, as violations of its policies.​

The first suspension occurred in October 2019, when Hegde used an iconic 1936 photograph of August Landmesser as his cover image. The photograph depicts Landmesser refusing to perform the Nazi salute, standing amidst a crowd that is saluting. Twitter classified this image as “hateful imagery.” Following an appeal, Twitter briefly reinstated Hegde’s account after he removed the photograph.

Twitter suspended his account again, this time for retweeting a 2017 post by activist Kavita Krishnan that featured the Hindi poem “Usko Phansi Do” (“Hang Him”) by Gorakh Pandey. Twitter indicated that this retweet violated its policies, calling it “hateful or sensitive content.” Hegde was informed that his account could be reinstated if he deleted the retweet, but he chose to contest the suspension, leading to a prolonged period of account inactivity. ​

Hegde contended that the suspensions were the result of organised mass reporting by certain groups targeting his account, rather than genuine policy violations. He maintained that neither the photograph nor the poem constituted objectionable content and argued that Twitter’s actions were arbitrary and infringed upon his right to free speech.

Jaising also noted that several social media accounts, including those of political leaders, activists and journalists, were blocked during the farmers’ protests in Delhi without prior notification or legal recourse.

The petition specifically challenges Rules 8 and 9 of the 2009 IT Rules, according to The Hindu. Rule 8 allows the government to block content without necessarily informing the content creator, while Rule 9 provides for emergency blocking with minimal notification. Jaising argued that Rule 9 is frequently used arbitrarily, depriving users of a chance to be heard. Further, she raised concerns about Rule 16, which mandates confidentiality regarding blocking requests and actions, making the process even more opaque.

The petition points out that intermediaries, under Section 79 of the IT Act, are not liable for third-party content and are required to comply with government blocking orders to continue their operations in India. This results in platforms focusing on compliance over protecting users’ rights. The petitioners argue that replacing “or” with “and” in the rules would ensure both the intermediary and the content creator receive notice, allowing for due process.