DRAFT INTERMEDIARY SECOND AMENDMENT RULES, 2026 - CONSTITUTIONAL FAULT-LINES AND THE INCREASED BURDEN OF COMPLIANCE

On 30 March 2026, the Ministry of Electronics and Information Technology (“MeitY”) released the Draft Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Second Amendment Rules, 2026 (“Draft Amendments”). Framed as a further review of the digital governance framework, the proposed amendments fundamentally alter the architecture of intermediary liability, executive oversight, and regulation of online speech in India.

Three proposed changes are particularly significant.

First, the insertion of Rule 3(4) seeks to convert executive advisories, clarifications, standard operating procedures, and guidelines into binding compliance obligations linked to the loss of safe harbour protection under Section 79 of the Information Technology Act, 2000 (“IT Act”). 

Second, the proposed amendment to Rule 8(1) expands Part III of the IT Rules beyond digital publishers to potentially cover ordinary users sharing news and current affairs content.

Third, the amendment to Rule 14(2) enlarges the jurisdiction of the Inter-Departmental Committee (“IDC”), permitting the Ministry of Information and Broadcasting (“MIB”) to refer undefined “matters” to the IDC even in the absence of a complaint alleging violation of the Code of Ethics.

Taken together, these amendments represent a decisive shift toward executive-led content governance through subordinate legislation. They may raise constitutional concerns relating to excessive delegation, procedural arbitrariness, and the reversal of statutory safe harbour protections that underpin India’s digital economy, apart from adding substantial compliance burden.

BUSINESS CONSEQUENCES & COMPLIANCE BURDEN

The implications of the Draft Amendments extend far beyond constitutional issues which we have discussed hereinbelow. They strike at the legal certainty on which India’s digital economy depends. Safe harbour protection is foundational to digital business operations. Platforms, marketplaces, cloud providers, social media companies, matchmaking platforms, and startups rely on predictable statutory standards governing intermediary liability.

Rule 3(4) fundamentally alters this equilibrium by introducing open-ended and evolving compliance obligations through executive advisories and guidelines. For businesses, this creates perpetual regulatory uncertainty. A cloud provider could face new obligations through an advisory on data retention. An e-commerce platform could lose statutory immunity due to non-compliance with evolving onboarding guidelines. A social media intermediary may be compelled to over-remove lawful content to avoid allegations of insufficient compliance.

The compliance burden becomes especially unworkable when read alongside the expansion of Rule 8. Platforms would be expected to identify which users qualify as disseminators of “news and current affairs content”, determine whether such content triggers Part III obligations, and potentially maintain grievance redressal mechanisms for user-generated speech. The Draft Amendments provide no workable standards for such determinations.

In practical terms, the predictable outcome is over-moderation. Faced with vague obligations and the threat of losing safe harbour, intermediaries would naturally adopt risk-averse moderation practices so that they can retain safe harbour provisions.

The broader economic implications are equally significant. Foreign investors undertaking due diligence in India’s digital sector increasingly evaluate regulatory predictability and intermediary liability exposure. A framework where statutory protections can effectively be diluted through evolving executive advisories creates substantial legal uncertainty and undermines India’s ease-of-doing-business commitments.

RULE 3(4) : CONVERTING EXECUTIVE ADVISORIES INTO BINDING LAW

The proposed Rule 3(4), titled “Compliance with clarifications, advisories and directions issued by the Ministry”, is one of first constitutional question which may be raised on a reading of the Draft Amendments. In substance, the provision seeks to transform non-statutory executive instruments into enforceable legal obligations by attaching the consequence of loss of safe harbour protection for non-compliance.

This marks a departure from the constitutional framework governing delegated legislation. The rule-making power under the IT Act flows from Section 87, which authorises the Central Government to frame rules only for carrying out the provisions of the statute. Section 87(2)(zg) specifically empowers the Government to prescribe due diligence guidelines for intermediaries under Section 79(2). However, this power is not an unrestricted authority to create new categories of binding obligations through executive communications.

Rule 3(4) effectively permits MeitY to issue advisories, guidelines, clarifications, codes of practice, or standard operating procedures outside the legislative process and subsequently treat them as mandatory compliance requirements. The issue is that the proposed rule 3(4) endeavors to change informal executive communications which can be said to be ‘soft-guidance’ into a legal mandate. In doing so, the Draft Amendments create a mechanism which may be perceived as impermissible sub-delegation.

This directly offends the settled constitutional principle of delegatus non potest delegare, i.e., a delegate cannot further delegate. The Hon’ble Supreme Court has consistently held that delegated legislation must remain within the boundaries of the parent statute. In Indian Express Newspapers v. Union of India (1985) 1 SCC 641 and Confederation of Ex-Servicemen Associations v. Union of India (2006) 8 SCC 399, the Court reaffirmed that subordinate legislation cannot create substantive obligations unsupported by the enabling statute.

The constitutional questions become even pronounced when viewed alongside the Hon’ble Bombay High Court’s decision in Kunal Kamra v. Union of India, Writ Petition (L) No.9792 of 2023, where the Court struck down the ‘Fact Check Unit’ amendment for impermissibly expanding executive control over online speech through delegated legislation. The Court emphasised that the IT Rules cannot create substantive liabilities or obligations absent legislative sanction in the parent statute.

Section 79 of the IT Act establishes a carefully calibrated safe harbour regime. Intermediaries retain immunity so long as they comply with statutory due diligence obligations and act upon “actual knowledge” through judicial orders or valid government notifications. The statute does not authorise the executive to continuously expand intermediary obligations through informal advisories or policy documents.

By enabling executive communications to operate as de facto law, Rule 3(4) effectively permits the Ministry to dilute statutory immunity through non-legislative instruments. This fundamentally alters the nature of intermediary liability and imposes coercive obligations without parliamentary mandate.

EROSION OF THE SHREYA SINGHAL SAFEGUARD

The Draft Amendments also undermine the settled position of law as laid down by the Hon’ble Supreme Court in Shreya Singhal v. Union of India (2015) 5 SCC 1. In that landmark judgment, the Court read down Section 79(3)(b) and held that intermediaries can only be required to remove content upon receiving actual knowledge through a court order or a valid government direction under law.

The judgment was intended to prevent intermediaries from becoming private adjudicators of speech legality and to protect lawful expression from arbitrary censorship. Rule 3(4), however, effectively reintroduces a regime of informal executive censorship. If advisories and guidelines issued by ministries begin carrying safe harbour consequences, intermediaries may inevitably adopt aggressive over-compliance practices to avoid legal exposure and losing their safe harbour protection. The distinction between binding legal orders and informal executive suggestions would become blur.

This creates a chilling effect on speech while simultaneously bypassing the procedural safeguards mandated in Shreya Singhal. Statutory immunity under Section 79 is not a discretionary executive privilege, it is a legislatively guaranteed protection designed to preserve the functioning of digital platforms and online expression.

EXPANSION OF RULE 8(1) : BRINGING ORDINARY USEERS WITHIN PART III

Equally concerning is the proposed expansion of Rule 8(1), which extends the application of Part III of the IT Rules to intermediaries and users sharing news and current affairs content. The blocking powers of the Ministry of Information & Broadcasting (“MIB”) as well as the jurisdiction of the Inter-Departmental Committee (“IDC”) under Part III of the IT Rules applies to both intermediary and its users.

Part III was originally framed to regulate digital news publishers and OTT platforms through a Code of Ethics and a three-tier oversight mechanism. The Draft Amendments now attempt to expand this framework beyond institutional publishers to potentially include individual users, journalists, creators, commentators, and citizens sharing news-related content online and intermediaries.

The amendments blur the foundational distinction between intermediaries and publishers. The safe harbour regime under Section 79 exists precisely because intermediaries are not editors. By imposing publisher-style obligations and oversight consequences on platforms, the amendments fundamentally alter the legal architecture of how the idea of intermediary is presented under the parent statute.

This proposed expansion is particularly problematic because the constitutional validity of Part III itself remains under judicial scrutiny. In Agij Promotion of Nineteenonea Media Pvt. Ltd. v. Union of India Writ Petition (L.) No. 14172 of 2021, the Hon’ble Bombay High Court imposed an interim stay on Rule 9(1) and (3) and by that effect, Part III has no operative foundation. Subsequently, in T.M. Krishna v. Union of India, Writ Petition Nos.13055 and 12515 of 2021 (order dated 16 September 2021), the Hon’ble Madras High Court affirmed an interim stay with pan-India effect, expressing concerns that a government-controlled oversight architecture could undermine media independence and editorial autonomy. Both these proceedings are now transferred and pending adjudication before the Hon’ble Delhi High Court.

Against this backdrop, extending the same disputed framework to ordinary users appears to be an indirect attempt to widen executive control over online discourse despite pending constitutional challenges.

Importantly, regulation of user-generated content must adhere to the procedural safeguards prescribed under Section 69A of the IT Act and the Blocking Rules. The executive cannot circumvent statutory requirements by creating parallel oversight structures through subordinate legislation. The proposed Rule 8(1) therefore risks transforming ordinary citizens into regulated publishers without statutory basis, while exposing user-generated speech to executive review mechanisms lacking sufficient constitutional safeguards.

RULE 14(2) : EXPANDING THE IDC'S JURISDICTION

The amendment to Rule 14(2) further intensifies executive concentration of power. Under the existing framework, the IDC’s jurisdiction is triggered by complaints alleging violations of the Code of Ethics. The Draft Amendments significantly expand this by allowing the MIB to refer undefined “matters” to the IDC even in the absence of any complaint. By empowering the IDC to examine any “matter” referred by the MIB, the amendment confers an undefined and potentially limitless jurisdiction, enabling the IDC to issue recommendations beyond the statutory framework under which it was constituted.

The language of the amendment is strikingly broad and unconstrained. This effectively converts the IDC from a complaint-based adjudicatory body into a broad executive oversight mechanism capable of examining virtually any form of digital content.

The constitutional concerns are compounded by the institutional structure itself. The MIB would simultaneously function as the referring authority and participate within the administrative framework through which the IDC operates. Such a framework collapses the distinction between complainant and adjudicator, raising serious concerns regarding procedural fairness and violation of the principle of audi alteram partem.

Read together with the expansion of Rule 8(1), the proposed Rule 14(2) appears to reconstruct, through procedural redesign, the very oversight architecture that constitutional courts had already restrained. 

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