High Court seeks response from L-G, Centre in plea authorising Delhi Police to block online content
The Delhi High Court on Wednesday sought a response from the Delhi Lieutenant Governor and the Ministry of Electronics and Information Technology within six weeks in a public interest litigation challenging a notification appointing the Delhi Police as the nodal agency, under IT Act and Rules, for blocking online content or issuing take down notices.
The notification was issued by the L-G in December last year.
The challenge comes even as the Indian Cyber Crime Coordination Centre under the Ministry of Home Affairs told the Delhi High Court on April 29 that it is in the process of integrating the Application Programming Interface (API) with around 1,100 entities, including internet service providers, social media intermediaries and telecom network providers on its Sahyog portal.
With the API integration with the IT intermediaries and other entities on the cyberspace, any request for a takedown raised by a law enforcement agency, will automatically be pulled down in real-time without any human intervention.
For example, the moment a law enforcement agency (LEA) puts a request on the portal for takedown of content, the platform, if its API is already integrated with Sahyog, will take down the content immediately. This will also empower local police stations to order for take down of content. According to a source, over 15,000 LEAs are now onboarded on the portal.
The Sahyog portal, launched in 2024, is aimed at expediting the process of sending notices to IT intermediaries by the appropriate government or its agency under Section 79 (3)(b) of the IT Act, 2000 to facilitate the removal or disabling of access to any information, data or communication link with an objective to curtail/detect unlawful/criminal act.
The provision of Section 79(3)(b), part of the safe harbour provision, requires that a content flagged as unlawful by the government or its agency, has to be taken down first whereafter any grievance or appeal is entertained.
In the petition filed by Software Freedom Law Center India (SFLC.in) through its advocate Musheer Zaidi, the constitutional validity of the notification has been challenged, submitting that the same is without the authority of law, and adds that the IT Act 'does not envisage the creation or functioning of any nodal agency' in the manner as has been done through the notification.
SFLC India has contended that such appointment of members of the police as a nodal agency and delegation of authority to law enforcement agencies, without necessary safeguards 'results in unbridled discretion and opens the door for unchecked censorship.'
On December 26, 2024, the Home department of the Delhi government issued a gazette notification designating the Delhi Police as the nodal agency for performing functions under Section 79(3)(b) of the IT Act, 2000.
The notification also appointed Joint Commissioner of Police, IFSO (Intelligence Fusion and Strategic Operations), Special Cell as state nodal officer, DCP IFSO as he assistant state nodal officer, and DCP of districts, IFSO, EOW, Crime, Special Cell, Special Branch, IGIA, Railways and Metro as designated officers for issuing takedown notice pertaining to cases reported in their respective jurisdictions and for notifying instances of unlawful act online.
Seeking quashing of the notification, SFLC.in has argued in its plea that Section 69A of IT Act already establishes the procedure for blocking access to information.
It has also argued that IT Act Section 79 (3)(b) 'explicitly establishes that only a notification by the appropriate Government or its agency can be considered for the issuance of takedown orders,' and the L-G, 'even while acting as the so-called 'nodal agency,' cannot unilaterally declare the authority of the Delhi Police to be the 'appropriate government or its agency' for the purposes of issuing such orders.'
The petitioner has further submitted that 'allowing them to issue takedown notices without judicial oversight could lead to arbitrary actions, infringing upon the due process of law.'
Issuing notice on Wednesday, the bench of Chief Justice D K Upadhyaya and Justice Tushar Rao Gedela kept the matter next for consideration on September 17.
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