The Hon’ble Supreme Court was pleased to issue notice to the Union of India on a Public Interest Litigation (PIL) filed by the Software Freedom Law Center, India (SFLC.in) challenging the constitutionality of Rule 16 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (hereinafter referred to as the “Blocking Rules, 2009”). The petition also prays for a reading down/striking down of Rule 8 and Rule 9 for being ultra vires Articles 14, 19, and 21 of the Constitution of India.
The petition challenges these provisions on the grounds that the order passed for blocking of information online by the competent authority does not allow for any hearing or provision of reasons to be recorded in writing before blocking such content. This is owed to the cumulative reading of Rules 8, 9 and 16 of the Blocking Rules, 2009. Such broad powers to remove content are further not envisaged under the parent act, i.e., the Information Technology Act, 2000 under the relevant provision, Section 69A. The provision mandates that information may be blocked in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above. However, reasons must be recorded in writing for any orders passed for blocking information
Rules 8 and 9 create a legal fiction whereby the Designated Officer, who is an executive officer, may direct the blocking of information from any online platform, by serving notice on the intermediary OR user. This alternative is unconstitutional insofar as the intermediary cannot possibly substantiate/ defend the views of the original user or originator with regard to any post. The intermediary is merely providing a platform to host content by third-parties and furthermore, must comply with such directions under Section 69A(3) which states that refusal to comply with directions shall attract imprisonment and fine for the intermediary. Such action constitutes blatant violation of the principles of natural justice apart from violating the Fundamental Right to free speech and expression under Article 19(1)(a) of the Constitution.
Rule 16 further mandates confidentiality with regard to any requests, complaints, or actions taken under the Blocking Rules 2009. As a result, the originator of the content may never be heard or provided a reasoned order before their content is blocked online. Apart from causing a chilling effect on free speech, this violates basic tenets of natural justice.
The petition prays for the following reliefs:
- Quash or set aside Rule 16 of the Blocking Rules, 2009;
- Declare Rule 8 null and void or alternatively, read “or” to mean “and” to ensure notice of blocking is issued to the intermediary and originator;
- Strike down/read down Rule 9 to mandate issuance of notice, opportunity of hearing, and communication of interim order to the originator prior to passing final order;
- Mandate prescription of a notice format for blocking of information;
- Direct disclosure of the number of instances where power to block under Rule 8 has been utilised without providing notice to originator;
- Direct disclosure of the number of instances where power to block under Rule 9 has been utilised without providing notice to originator;
- Direct disclosure of minutes of meeting / findings of the Review Committee established under Rule 14;
- Direct calling of records from respondents under Rule 15 to enable the aggrieved persons to take effective remedy in accordance with law.
Senior Advocate Indira Jaising appeared for SFLC.in in the matter. SFLC.in legal counsels, Prasanth Sugathan (Legal Director), Arjun Adrian D’Souza (Senior Legal Counsel), and Syed Mohammad Haroon (Legal Counsel) assisted in the filing of the matter
Hearing Update on 03.03.2025:
The Supreme Court Bench comprising Justice B.R. Gavai and Justice Augustine George Masih heard the matter. Senior Advocate Indira Jaising argued that Rule 16 must be held constitutional infirm on grounds of violating basic principles of natural justice. The Supreme Court was pleased to issue notice in the matter.
A copy of the petition can be found herein:
