This article is written by Kimaya Anavkar, a T.Y.LL.B. student at Kishinchand chellaram Law College.
Keywords: OTT regulation India, IT Rules 2021, Code of Ethics, Case Law, Aparna Purohit v. State of U.P., Agij Promotion of Nineteenonea Media Pvt. Ltd. v. Union of India, Article 19(1)(a), Freedom of Speech, Grievance Redressal
ABSTRACT
The proliferation of Over-the-Top (OTT) platforms in India has sparked a critical legal debate. This debate pits creative freedom against demands for content accountability. This article provides an in-depth legal analysis of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. These rules fundamentally altered the regulatory landscape. We will dissect the controversial three-tier grievance redressal mechanism, the ambiguous “Code of Ethics”, and the powers granted to the government. This article moves beyond a simple overview to examine the specific, high-profile case laws that have defined this conflict.
We will explore the constitutional challenges in Agij Promotion of Nineteenonea Media Pvt. Ltd. v. Union of India and the pan-India impact of the stays granted by the High Courts. Furthermore, we will analyze the criminal proceedings in the Tandav and Mirzapur controversies, which illustrate the real-world legal risks for platforms and creators, setting the stage for the ongoing battle over Article 19(1)(a) (freedom of speech) in the digital age.
INTRODUCTION: THE PRE-REGULATION LANDSCAPE
The arrival of Over-the-Top (OTT) streaming platforms in India did not just change how audiences consumed entertainment; it created a profound legal vacuum. For the first time, [creators/platforms] were creating and distributing high-budget, mass-market content entirely outside the bounds of established Indian law. The new digital landscape rendered the Cinematograph Act, 1952, which governs theatrical films, and the Cable Television Networks (Regulation) Act, 1995, which controls television, obsolete. This unregulated “Wild West” of digital content placed two fundamental interests on a direct collision course: the creators’ right to freedom of speech and expression under Article 19(1)(a) of the Constitution, and the state’s power to impose “reasonable restrictions” in the name of public order, decency, and morality under Article 19(2).
This conflict was not merely academic. It erupted in courtrooms and police stations across the country. The web series Tandav resulted in multiple FIRs, leading to a landmark hearing in the Allahabad High Court, which denied anticipatory bail to a platform executive, observing that an apology or removal of scenes after streaming could not absolve criminal liability. This sent a clear signal: the industry’s “safe harbour” was crumbling. Simultaneously, a PIL regarding the series Mirzapur reached the Supreme Court, with petitioners demanding the creation of a pre-screening committee for all web content, mirroring the traditional film censorship board.
Caught between mounting judicial pressure and public outcry, the Central Government responded. On February 25, 2021, it notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. This was not a minor amendment but a comprehensive, top-down regulatory framework the government designed to end the legal ambiguity. However, in its attempt to impose accountability, the government ignited a new constitutional firestorm. This article provides a detailed legal analysis of this new regime, dissects the controversial three-tier mechanism and Code of Ethics, and traces the high-stakes judicial battles—from the High Courts to the Supreme Court—that will ultimately define the future of free speech on India’s digital screen.
THE CORE OF THE LAW: THE 2021 IT RULES
The IT Rules, 2021, notified under the Information Technology Act, 2000, brought “publishers of online curated content” (OTT platforms) under the regulatory ambit of the Ministry of Information and Broadcasting (MIB). The rules’ most significant provisions are the Code of Ethics and the Three-Tier Grievance Redressal Mechanism.
(a) Content Classification and Restrictions (The Code of Ethics)
The rules mandate a self-classification system, requiring platforms to rate their content into five age-based categories: U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). They must also provide parental locks and age verification mechanisms.
More controversially, the “Code of Ethics” (in the Appendix) prohibits content that:
- Violates the sovereignty and integrity of India.
- Threatens public order.
- Promotes obscenity, violence, or hatred between communities.
- Is defamatory or insults religious sentiments.
Creators have criticized these restrictions, which mirror the “reasonable restrictions” under Article 19(2) of the Constitution, for being overly vague, potentially leading to self-censorship.
(b) The Three-Tier Grievance Redressal Mechanism
This is the most contested part of the rules.
- Level I: Self-Regulation by the Publisher
This is the first stop for any viewer complaint. Every OTT platform must appoint a Grievance Officer based in India, who must acknowledge the complaint within 24 hours and dispose of it within 15 days.
- Level II: Self-Regulatory Body of Publishers
If the complainant is unsatisfied with the Level I decision, they can appeal to a self-regulatory body formed by the platforms themselves. A retired Supreme Court or High Court judge will head this body.
- Level III: Government Oversight Mechanism
This is the final tier, granting the MIB direct oversight. An inter-departmental committee formed by the government can hear appeals from Level II. It also holds the power to issue blocking orders to platforms, a power that critics argue amounts to direct government censorship.
IN THE FIRING LINE: MAJOR LEGAL CHALLENGES AND KEY CASE LAWS
Petitioners immediately challenged the IT Rules, 2021, in High Courts across India. The central legal arguments are that the rules are ultra vires (beyond the power of) the parent IT Act, 2000, and that they violate the fundamental right to freedom of speech and expression under Article 19(1)(a).
(a) Aparna Purohit v. State of U.P. (The “Tandav” Controversy)
This case highlights the legal peril for platform executives. After the release of the series Tandav, [complainants/people] filed multiple FIRs against Amazon Prime Video’s India Head, Aparna Purohit, for allegedly hurting Hindu religious sentiments (a crime under IPC Section 295-A) and other offenses.
In a significant judgment, the Allahabad High Court rejected her anticipatory bail plea in February 2021. The Court made strong observations, stating that an apology or removal of scenes after the content has been streamed does not absolve the accused of criminal liability. The Court’s harsh stance sent shockwaves through the industry. The Supreme Court later granted Ms. Purohit interim protection from arrest, but the case established the severe personal risk involved in content publication.
(b) Agij Promotion of Nineteenonea Media Pvt. Ltd. v. Union of India (2021 SCC OnLine Bom 2938)
This case, filed in the Bombay High Court, was one of the first direct constitutional challenges to the IT Rules, 2021. The petitioners (who run the digital portal “The Leaflet”) argued that the rules, particularly the Code of Ethics and the 3-tier mechanism, were “draconian” and would have a “chilling effect” on free speech.
In August 2021, the Bombay High Court granted a landmark interim stay on the operation of Rules 9(1) and 9(3)—the very rules that mandate adherence to the Code of Ethics and establish the 3-tier mechanism. The Court held that these provisions prima facie (on the face of it) infringed upon the constitutional guarantee of freedom of speech and were beyond the scope of the IT Act, 2000.
(c) Digital News Publishers Association (DNPA) v. Union of India (W.P. Nos. 13055 and 12515 of 2021)
Following the Bombay High Court’s order, the Madras High Court heard a similar challenge filed by the DNPA and musician T.M. Krishna. The petitioners argued that the Level III government oversight mechanism would “rob the media of its independence”.
In September 2021, the Madras High Court concurred with the Bombay High Court’s reasoning. It explicitly stated that the stay on Rules 9(1) and 9(3) should have a “pan-India effect”. This order effectively halted the enforcement of the core regulatory framework across the country, pending a final decision.
CURRENT LEGAL STATUS AND FUTURE OUTLOOK
The immediate and widespread legal challenges across India created a complex judicial landscape. Petitioners filed petitions in various High Courts, including Bombay, Madras, Kerala, and Delhi, all questioning the constitutionality of the rules. This created the strong possibility of “contradictory judgments” from different jurisdictions, which would lead to legal chaos and inconsistent application of the law across the country.
Recognizing this, the Union Government filed a transfer petition with the Supreme Court, arguing for the consolidation of all cases to avoid this “multiplicity of proceedings”.
On March 22, 2024, a Supreme Court bench of Justices Hrishikesh Roy and Prashant Kumar Mishra ordered that all petitions pending in various High Courts challenging the IT Rules, 2021, be transferred to the Delhi High Court. The Court noted the “large number of cases pending consideration” before the Delhi High Court as a key reason for selecting it as the venue for this “analogous hearing”.
This decision is significant as it makes the Delhi High Court the principal battleground for the rules’ constitutional validity. The final judgment from this consolidated hearing will be the most comprehensive judicial review of the digital media framework to date.
(b) The Evolving Law: The October 2025 Amendments
While this consolidated legal challenge is pending, the government has been proactively amending the rules. Critics/Experts widely see this move as an attempt to address the specific legal vulnerabilities—namely “vagueness” and “arbitrary power”—that petitioners highlighted and led to the stays by the Bombay and Madras High Courts.
On October 23, 2025, the Ministry of Electronics and Information Technology (MeitY) notified new changes to the IT Rules, set to take effect on November 15, 2025. These amendments are designed to introduce greater transparency and accountability into the content-blocking process:
- Senior-Level Authorization: Takedown orders can no longer be issued by any low-level official. The directive must now come from a senior officer of “at least Joint Secretary rank or its equivalent”.
- “Reasoned Intimations”: The amendments replace vague “notifications” with “reasoned intimations”. This means the government must “clearly explain the legal grounds and specific details” for the takedown, including the “exact URL, nature of the offence, and relevant provisions of law”. This is intended to ensure platforms act with “actual knowledge” of the violation.
- Monthly Review Mechanism: A new oversight layer has been added. All takedown directives will be subject to a “monthly review” by an officer “not below the rank of Secretary”. This review will assess whether the blocking order remains “necessary, proportionate, and consistent with the law”.
According to the government, these changes are intended to “prevent arbitrary censorship” and “strike a balance” between citizens’ rights and lawful state regulation. However, these new amendments will also likely be scrutinized by the Delhi High Court as part of the ongoing consolidated case to determine if they sufficiently cure the constitutional defects alleged by the petitioners.
CONCLUSION
The IT Rules, 2021, were the government’s decisive answer to the legal chaos exemplified by the Tandav and Mirzapur controversies. By introducing a “Code of Ethics” and a three-tier grievance redressal system, the rules sought to replace ambiguity with accountability. Instead, they triggered a new constitutional crisis, shifting the battle from public sentiment to a direct legal challenge against state overreach.
The intervention by the judiciary was swift and significant. The Bombay High Court, in Agij Promotion v. Union of India, issued a landmark interim stay on the core enforcement provisions—Rules 9(1) and 9(3)—finding they prima facie infringed upon the right to free speech and created a “chilling effect”. This victory for creators was amplified by the Madras High Court, which not only concurred but declared the stay should have a “pan-India effect,” warning that the government’s Level III oversight mechanism could “rob the media of its independence”.
Today, we stand at a critical legal juncture. The most potent sections of the IT Rules, 2021, are judicially suspended. The government’s attempt to establish itself as the final arbiter of digital content is in constitutional limbo. The Supreme Court’s 2024 decision to consolidate all challenges and transfer them to the Delhi High Court has turned it into the definitive arena for this fight. While the government attempts to refine its powers, as seen in the October 2025 amendments requiring “reasoned intimations” for takedowns, the fundamental question remains.
The forthcoming judgment from the Delhi High Court will be a watershed moment for the Indian internet. It will not merely decide the fate of a few rules; it will draw the definitive legal boundary between regulation and censorship, determining whether the digital age in India will be characterized by state oversight or by the constitutional protection of free and creative expression.
FREQUENTLY ASKED QUESTIONS (FAQS)
Q. I saw a show that I found deeply offensive to my religion. What are my legal options?
A. You have two main options. First, you can use the mechanism under the IT Rules, 2021, by filing a formal complaint with the platform’s Grievance Officer. They must resolve it in 15 days. Second, like in the Tandav case, you can file a police complaint (FIR) under relevant sections of the Indian Penal Code, such as Section 295-A (deliberate and malicious acts intended to outrage religious feelings).
Q. Why did the High Courts stay the rules? Are they not in force?
A. The Bombay and Madras High Courts stayed only Rules 9(1) and 9(3). They did this because they prima facie believed these rules violated the fundamental right to freedom of speech (Article 19(1)(a)) and were not authorized by the parent IT Act, 2000. This means the mandatory “Code of Ethics” and the 3-tier system are currently not being enforced. Other parts of the rules, like content classification (U, U/A 7+, etc.), are still in effect.
Q. Can the government ban a show on Netflix or Amazon Prime?
A. This is the heart of the legal debate. Before the IT Rules, the government had no direct power to do so. The IT Rules, 2021, attempted to give the government this power through the Level III “Oversight Mechanism.” However, since that specific rule (Rule 9) is currently stayed by the courts, the government cannot currently use that mechanism to order a ban. The final decision rests with the Delhi High Court.
Q. What is the difference between this and the “Fact Check Unit” (FCU) case?
A. They are related but distinct. The IT Rules, 2021, (which this article discusses) regulate digital media and OTT content. The Fact Check Unit (FCU) was introduced via an amendment to these rules in 2023. The FCU was empowered to identify “fake, false, or misleading” information related to the Central Government. This FCU provision was also challenged, and in a separate case (Kunal Kamra v. Union of India), the Bombay High Court struck it down as unconstitutional. Both cases are part of the larger legal battle over government control of online information.
