Agij Promotion v. Union of India: the IT Rules 2021 Part III stays

The facts in brief

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were notified on 25 February 2021 under Sections 69A, 79 and 87 of the IT Act, 2000. The Rules came in three Parts. Part II tightened intermediary obligations — grievance officer, traceability of originators in messaging applications, content-takedown timelines. Part III, the contested portion, imposed a three-tier oversight regime on digital news publishers and OTT platforms: self-regulation at the publisher level (Tier 1), self-regulatory body at the industry level (Tier 2), and oversight by an Inter-Departmental Committee within the Ministry of Information and Broadcasting (Tier 3), with Rule 14 powers to direct takedown, modification or apology.

A wave of challenges followed across multiple High Courts.

In the Kerala High Court, LiveLaw Media Pvt. Ltd. v. Union of India (W.P.(C) 6272/2021) produced the first interim stay. Justice Shaji P. Chaly on 10 March 2021 restrained the Union from taking coercive action against LiveLaw under Part III pending merits adjudication.

In the Delhi High Court, Foundation for Independent Journalism v. Union of India (W.P.(C) 3125/2021), filed by The Wire and The Quint, sought identical relief; Internet Freedom Foundation filed W.P.(C) 6351/2021 on the Part II intermediary obligations including the traceability requirement.

In the Bombay High Court, Agij Promotion of Nineteenonea Media Pvt. Ltd. v. Union of India — the Leaflet petition — was filed together with the Nikhil Mangesh Wagle PIL. The division bench of Chief Justice Dipankar Datta and Justice G.S. Kulkarni reserved judgment after hearing Senior Advocates Darius Khambata, Aspi Chinoy and others.

On 14 August 2021, the Bombay High Court delivered the order that became the pan-India operative interim outcome. Rules 9(1) and 9(3) of Part III were stayed. The bench held them prima facie unconstitutional — manifestly unreasonable and travelling substantially beyond the rule-making power conferred by the IT Act.

The Madras High Court, on 16 September 2021 in Digital News Publishers Association v. Union of India (Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy, division bench), affirmed the pan-India effect of the Bombay High Court stay and added that any action under Part II Rule 3 read with Rule 7 against the petitioners would abide by the writ outcome.

The Union of India moved the Supreme Court for transfer. Under T.P.(C) Nos. 1228 of 2021 and connected matters, the Supreme Court directed consolidation of all High Court petitions in the Delhi High Court. Bifurcated merits hearings on Part III commenced before the Delhi High Court on 11 November 2024 and continue into 2026.

The constitutional question

The challenge raised three structural objections.

First, excessive delegation. The IT Act, 2000 was enacted to regulate electronic commerce, digital signatures and intermediary safe harbour. Whether Section 87 confers rule-making power that extends to imposing a press-style ethics code, with an administrative oversight committee within the executive branch, on digital news media — entities that the Press Council Act, 1978 and the Cable Television Networks (Regulation) Act, 1995 had previously placed under different regulatory architectures.

Second, inter-medium parity under Article 14. Print media is regulated through the Press Council. Cable television is regulated through the Programme Code framework. Imposing a separate, administratively-supervised ethics regime on online news — but not on its print or broadcast counterparts producing the same content — raises a discrimination question that the bench treated as serious.

Third, chilling effect under Article 19(1)(a). The three-tier oversight regime culminating in an Inter-Departmental Committee within the executive branch — empowered to direct takedown, modification or apology — created a structural risk of self-censorship by publishers who could not predict how the Code of Ethics would be applied to their reporting.

What the Court held

Rules 9(1) and 9(3) stayed

The division bench stayed the operation of Rules 9(1) and 9(3) of Part III pan-India. The relief was interim but the reasoning was substantive — the bench did not confine itself to balance-of-convenience but expressly addressed prima facie unconstitutionality.

The indeterminate and wide terms of the Rules bring about a chilling effect qua the right of freedom of speech and expression of writers/editors/publishers because they can be hauled up for anything if such Inter-Departmental Committee so wishes.

Rule 9(1) — the requirement that publishers adhere to a Code of Ethics — was held to violate Article 19(1)(a). The Code's content was drawn from the Press Council Norms framed under the Press Council Act, 1978 and the Programme Code under the Cable Television Networks (Regulation) Act, 1995. Both statutes are administered by different regulators and were enacted with entirely different legislative purposes. Borrowing those compliance burdens into the IT Act regime, the bench held, was impermissible.

Rule 9(3) — the three-tier mechanism ending in an Inter-Departmental Committee within MIB — was stayed as creating a parallel mechanism to the Press Council without statutory backing. The bench rejected the Union's characterisation of the IDC as a "self-regulatory" mechanism. Binding directions issued by an executive committee, the bench held, constitute state action subject to Article 19(2) discipline — and the Code of Ethics did not map onto the eight enumerated grounds.

Rules travelling beyond the rule-making power

The bench's structural objection was that the Rules went beyond what Sections 69A, 79 and 87 of the IT Act authorise. Section 69A authorises blocking on Article 19(2) grounds. Section 79 governs intermediary safe harbour. Section 87 confers rule-making power to give effect to the provisions of the Act. None of them, the bench held, authorises the Union to import the substantive content of the Press Council Norms — drawn from a different statute administered by a different regulator — and convert non-compliance into IT-Act administrative consequence.

The Rules would clearly be an intrusion in the fundamental right under article 19(1)(a) of the Constitution... insofar as they are sought to be made accountable for digital content under provisions of statutes which they otherwise are not governed by.

Part II not stayed

The bench declined to stay Part II intermediary obligations — including Rule 4(2) traceability for messaging applications. Those provisions were left for substantive merits adjudication. The traceability requirement is the subject of a separate challenge in WhatsApp LLC v. Union of India (W.P.(C) 7172/2021), originally before the Delhi High Court and now part of the consolidated proceedings.

Affirmation by the Madras High Court

The Madras High Court division bench on 16 September 2021 affirmed the pan-India operative effect of the Bombay High Court stay. The bench recorded a prima facie concern that the Rules "may threaten the independence of media" — a phrasing that has been quoted in subsequent challenges to digital-content regulation.

The doctrinal architecture

The Bombay High Court's reasoning rests on three doctrinal moves that the subsequent Delhi High Court merits hearings continue to work through.

First, the borrowed-statute problem. When delegated legislation under Statute A imposes substantive obligations drawn from Statute B, administered by a different regulator and enacted with different legislative purposes, the rule-making power under Statute A does not stretch that far. The bench drew on Cellular Operators Association of India v. TRAI, (2016) 7 SCC 703, on the contours of delegated legislation, and on Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305, on press freedom under Article 19(1)(a).

Second, the chilling-effect doctrine as transplanted from Shreya Singhal. The bench expressly drew on Shreya Singhal v. Union of India, (2015) 5 SCC 1, for the proposition that vague and indeterminate criteria in a speech-affecting provision are themselves a constitutional vice — they operate as a structural inducement to self-censorship, regardless of whether any prosecution actually follows.

Third, state-action analysis of "self-regulation". The bench refused the Union's characterisation of the three-tier mechanism as private self-regulation. An oversight committee within a ministry, empowered to direct takedown, modification or apology, is state action — and state action restricting speech must satisfy Article 19(2). The Code of Ethics, drawing on Press Council Norms and the Programme Code, does not match the eight enumerated grounds.

The decision sits adjacent to Shreya Singhal on the speech-discipline side; to Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, on the proportionality framework for digital regulation; and to the Delhi High Court's Foundation for Independent Journalism and the Kerala High Court's LiveLaw Media as the companion stay orders that produced a multi-court pan-India interim status quo before consolidation.

What was not decided

The 14 August 2021 order is an interim stay. Final constitutional validity of Part III has not been adjudicated. Other Part III provisions — particularly those addressed to OTT platforms — remain operative under voluntary compliance. Part II intermediary obligations including Rule 4(2) traceability are pending separate adjudication. The bench did not decide whether Anuradha Bhasin's proportionality test applies wholesale to IT-Rules-based content regulation. Whether digital news media is "press" within the Press Council Act ambit, or a sui generis category requiring fresh legislation, was not adjudicated. The end-to-end encryption versus originator-traceability constitutional clash was flagged but reserved. Cross-border applicability — when significant social media intermediaries are foreign entities — was not addressed.

After the judgment

The Union notified the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022 on 28 October 2022, creating Grievance Appellate Committees to override platform takedown decisions; operationalised January 2023. The 2023 Amendment Rules of 6 April 2023 inserted Rule 3(1)(b)(v) requiring intermediaries to act against information flagged by the Fact Check Unit of MIB — the rule struck down by the Bombay High Court in Kunal Kamra v. Union of India in September 2024.

The Supreme Court's transfer order under T.P.(C) Nos. 1228 of 2021 consolidated all High Court petitions into the Delhi High Court by May 2022. Bifurcated hearings began: Part III merits on 11 November 2024 led by Senior Advocate Darius Khambata for petitioners, with subsequent arguments through January 2025 and into 2026. Part II merits — including the traceability requirement — will follow. The Bombay High Court stay on Rules 9(1) and 9(3) continues to date; the Union has not sought modification post-consolidation.

The DPDP Act, 2023, with Rules notified November 2025, and the now-withdrawn Broadcasting Services (Regulation) Bill, 2023 — withdrawn in November 2024 for redraft — overlay further regulatory uncertainty. If the Broadcasting Services Bill is reintroduced and enacted, Part III of the IT Rules is likely to be subsumed into a broader content-regulation statute. Until then, Agij Promotion remains the leading interim authority on the constitutional limits of administrative content-regulation of digital news media — and the Delhi High Court's pending merits decision is likely to produce the foundational digital-media-regulation precedent of the decade.

Related on Valkya

• Shreya Singhal v. Union of India: striking down Section 66A
• Anuradha Bhasin v. Union of India: internet as an Article 19 right
• Kunal Kamra v. Union of India: the Fact Check Unit and the 2-1 split
• X Corp v. Union of India: Karnataka HC, Section 69A, and the cost of resistance

Sources

1. SCC OnLine Blog — Agij Promotion of Nineteenonea Media v. Union of India analysis (16 August 2021): https://www.scconline.com/blog/post/2021/08/16/bombay-hc-stays-it-rules-2021/
2. LiveLaw — Bombay HC stays Rule 9 of IT Rules 2021: https://www.livelaw.in/top-stories/bombay-high-court-stays-rule-9-it-rules-2021-179876
3. BarandBench — Bombay HC stays IT Rules 2021 Code of Ethics: https://www.barandbench.com/news/litigation/bombay-high-court-stays-it-rules-2021-code-of-ethics
4. Internet Freedom Foundation — IT Rules 2021 case tracker: https://internetfreedom.in/it-rules-2021-case-tracker/
5. Supreme Court Observer — IT Rules 2021 challenge case page: https://www.scobserver.in/cases/it-rules-2021-challenge-case-background/
6. High Court of Bombay — official judgment text W.P. (L) No. 14172 of 2021: https://bombayhighcourt.nic.in/judgments/agij-promotion-2021