The correspondent filing this dispatch is a law student in Mumbai who must remain anonymous.
Last week, American tech company X Corp. (formerly Twitter) announced that it would appeal a Karnataka High Court (KHC) order before the Supreme Court of India (SCI). As India’s highest court, the Supreme Court only hears appeals if the High Court certifies—or confirms—that the case raises an important legal question with wider public impact. Without this certificate, the SCI may grant special leave to appeal under Article 136, which allows the Supreme Court to hear the case at its discretion even without High Court certification. The KHC’s single-judge decision in X Corp. v. Union of India garnered widespread attention when it was issued earlier this month because of what this could mean for social media regulation, due process, and free speech rights.
In March, X Corp. filed a petition before the KHC, challenging the State’s authority to issue content-blocking orders under Section 79 of the Information Technology Act, 2000 (IT Act). The primary contention was that Section 69A of the same statute—read together with its adjoining 2009 Rules—already carves out a mechanism to issue such orders. More pertinently, this matrix lays out a more comprehensive framework, serving as a procedural safeguard against arbitrariness.
Like many other jurisdictions, India’s social media regulation operates largely through notice-and-takedown and blocking mechanisms. These mechanisms grant the executive power to issue orders to intermediaries. Blocking under Section 69A of the IT Act occurs in one of two ways: either through the Ministry of Electronics and Information Technology under the 2009 Rules, or through the Ministry of Information and Broadcasting under the 2021 Intermediary Rules. Read together with Rule 3(1)(d) of the 2021 Intermediary Rules, The IT Act’s Section 79 creates a parallel mechanism to issue blocking notices. In recent years, experts developed the Sahyog Portal to assist in issuing notices. The portal can block access or remove content automatically. It is worth noting that the 2021 Rules are currently being challenged in seventeen different petitions, with proceedings currently pending before the Delhi High Court.
X Corp. based its initial argument on the landmark SCI case Shreya Singhal v. Union of India. In that ruling, the Court clarified that Section 79 of the Information Technology Act was an exemption, and was meant to give online platforms “safe harbour” protection—meaning they are not legally responsible for user content unless a court or the government, under Section 69A, specifically orders its removal. The tech company further argued that India’s current system allows government officials and police to issue takedown orders outside of the procedures established by law. This, the company said, enables arbitrary censorship by executive authorities and violates both the original intent of Section 79 and the Indian Constitution—specifically, the right to “non-arbitrariness” under Article 14 and the rights to free speech and to practice any profession under Article 19.
The KHC ruled in the State’s favour, emphasizing the need for regulation, noting, “[as] social media, the modern amphitheatre of ideas, cannot be left in a state of anarchic freedom.” Constitution observers have criticized the Court for failing to engage meaningfully with the petitioners’ arguments, which is a well-founded observation. X Corp.’s counsel presented distinct grounds for the remedies sought, but the KHC’s dismissal rests on weak reasoning. The court held that because X Corp. is an American company without a registered office in India, it cannot claim a violation of Article 19, which extends constitutional rights only to Indian citizens. However, Article 14 applies to foreign entities, and the Calcutta High Court has previously held that corporations that are incorporated outside of India can maintain a writ petition before a High Court.
Counsel for X Corp. announced that the company would appeal the High Court decision, citing concerns over State infringement on free speech, due process, and arbitrariness rights. Specifically, X argued that Rule 3(1)(d) grants excessive discretion to executive Nodal Officers—made stronger by the Sahyog Portal—which threatens free speech rights. The KHC rejected X’s claims, describing the Portal as an “instrument of public good” without addressing the merits of the petitioners’ arguments. The High Court’s order reflects a broader call for social media regulation but overlooks the perils of over-regulation and the potential for arbitrary state action.
X Corp.’s legal battle is just one of many clashes the company has faced with regulatory and compliance regimes worldwide. From a full-scale shutdown in Brazil to ongoing criminal investigations in France—and even a lawsuit over its handling of hate speech allegations in New York—X Corp. has stamped a trail of legal headaches across multiple jurisdictions.
These lawsuits demonstrate that the “techlash”, or growing hostility towards big-tech American companies, continues to face a storm of legal push-back.
While the KHC rightly asserts India’s sovereignty and primacy of its laws by standing firm that “none may presume to treat the Indian marketplace as a mere playground,” it risks leaving a trail of arbitrariness in its wake, with unchecked powers wandering beyond scrutiny. While the High Court’s decision is expected to be a landmark judgment, the SCI’s final order will set the definitive tone for censorship, business freedom, and big tech. As India tightens the noose on reckless social media use, concerns mount that its reach may choke free speech, snuff out the dissemination of information, and silence dissent.
