This article is written by Ms. Nikara Liesha Fernandez from the School of Law, Christ University, Bangalore. This article deals with arguments suggesting the unconstitutionality of the IT Rules, 2021, based on direct application of the provisions of the Indian Constitution as well as principles set forth by the Courts of Law through various precedents.
The Information Technology (Intermediary Guidelines Digital Media and Ethics Code) Rules, 2021, hereinafter referred to as the IT Rules, came into force on the 25th of February, 2021, after being passed by the Ministry of Electronics and Information Technology (MeiTY) of the Government of India. These rules replaced the previous IT Rules of 2011 with a significant new move of bringing online news content and Over-The-Top (OTT) platforms within their ambit. The new rules also broadened the scope of the intermediary oversight mechanism which limited the freedom of the aforementioned platforms in regulating and showcasing their own content. These rules have come into force following certain provisions in its parent Act, the IT Act, 2000, namely under Section 87(1), Section 87(2)(z), and Section 87(2)(zg).
Social Media Intermediary companies such as Facebook, Whatsapp, Twitter, Telegram, and LinkedIn, to name a few, were made to submit the required details as per the Rules to the MeiTY. These rules have raised a myriad of concerns from both the companies as well as the users of their services. For example, Twitter even sought an extension of the compliance window and requested that the Government safeguard the freedom of expression of the public. Similarly, Whatsapp has lodged a case in the Delhi High Court challenging the government with regards to the IT Rules, 2021 on the grounds that the new requirements mandated by them violated customer privacy.
The defence used by the government as to the reason for establishing these rules was the need for a robust grievance redressal mechanism through which ordinary citizens who are the users of the intermediary platforms and other forms of digital media would be empowered to seek redressal for their grievances in a timely and organized manner. For this purpose, the new rules mandated the appointment of a Grievance Redressal Officer (GRO) who is to be a resident of India and the authority to handle customer grievances, especially those grievances involving issues such as sexual offences (including women and children with regards to pornography), dissemination of fake news causing public disorder and other misuses of social media on similar lines.
Unconstitutionality of the IT Rules, 2021
The Constitution of India is considered to be the supreme law of the land and all actions of individuals and organizations are required to be in tune with the same. Being a law that supersedes all other laws and takes the apex stance, it is reasonably assumed that all legislation passed by the legislature (and in this case the executive) must be in line with the provisions of the Constitution. However, there appears to be a significant departure from the same regarding many points of the IT Rules, 2021 which have been discussed below. As a rule, any law that is in contravention of the Constitutional provisions is liable to be struck down by the judiciary. However, due to political influence and corruption, striking down/amending the IT Rules, 2021 by any authority other than the ones who promulgated it themselves (i.e. the legislature), would lead to chaos within the wings of governance of our country.
Violation of Article 14
Article 14 of the Constitution upholds the equality of law and equal protection of the law to all individuals. Discrimination between individuals in the eyes of law is held unconstitutional and differential treatment of the same is prohibited.
Violation of the right to a fair hearing
The right to a fair hearing or ‘Audi alteram partem’ is considered to be a procedural and institutional facet of Article 14.
The oversight mechanism (level III) under Section 13, chapter IV of the IT Rules empowers the Secretary of the Ministry to issue directions ‘for blocking of online content to persons, publishers, or intermediaries in control of hosting such information, without giving them an opportunity of hearing’. The conditions for the same are once again not specified and just termed as an ‘emergency’ instead. This not only violates the right of the publisher and persons of the said content to know why their content has been taken down but also does not give them a fair hearing that violates their right to be heard. This compromises both the equality of the concerned persons as well as their equal protection of the law. The judgment in the case of Maneka Gandhi v. UOI (1978) clearly reiterates and upholds this right which is in tune with the rule of law and principle of natural justice explained below.
The Supreme Court has stated, in the case of Siemens Engineering & Anr. v. UOI (1976) that a mere pretence of compliance would not satisfy the requirement of law. The crux of the rule, as elaborated by the Supreme Court in the case of Anwar v. State of Jammu and Kashmir (1970) is that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine one.
Violation of the rule of law and principle of natural justice
The Rule of law upholds the supremacy of the Constitution and deems anything arbitrary or unconstitutional in nature as automatically a violation of Article 14. The vague and ambiguous nature of these rules is indicative of the unconstitutionality of the same. Violation of the rule of law, in turn, violates the principle of natural justice. ‘Natural Justice’, as defined by the Court in the case of Canara Bank v. V.K. Awasthy (2005), refers to ‘those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights.’ Violation of the principles of natural justice would amount to a violation of Article 14 as in the case of Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa (2009) unless such non-compliance has been expressly allowed (established by the Supreme Court in the case of H.L Trehan v. UOI (1998). It has been established by the Court in the case of C.B Gautam v. Union of India & Ors. (1992) that the principles of natural justice are applicable even if it was not statutorily required.
Arbitrary exercise of powers in the regulation of digital media
Article 14 is considered to be the protector against any form of arbitrariness and unfettered discretion. This violates the principle of natural justice as well which goes hand in hand with the fact that in the instance where any proceedings are found to violate being fair, just, and reasonable, such proceedings offend Article 14 and Article 21, as held by the Court in the case of Dharampal Satyapal v. Commissioner of Central Excise & Ors. (2005).
In other words, Article 14 targets arbitrariness as it is believed that any action in order to be defined as arbitrary must involve the negation of equality, and therefore equality is antithetic to arbitrariness, as stated by the Court in the case of EP Royappa v. State of Tamil Nadu (1974).
As held by the Court in the case of State of Punjab v. Shri Amar Singh, General (1998), reasonability and fairness, being a basic requirement of Article 14, is the antithesis of the arbitrariness exercised by the Government in the passage and criteria of these rules. These rules thus fail the test of reasonability.
There have been no clear limits that have been stated by these rules as to just how far the rules empower intermediaries to ‘regulate’ digital media. This particular ambiguity of the rules is of paramount concern as users of these intermediary platforms are left feeling insecure and unsafe about personal and private data which is put out on these intermediary platforms.
Although the rules specify that they are limited to only identifying the first originator of the information and do not disclose all the contents of the message, the government can choose to couple this with the IT Decryption rules and in this event, there will be no question of retaining our right to privacy.
This is not the first time the government has been criticized for its low standards of data encryption in licensing agreements with telecom providers. The Report of the Justice B.N Srikrishna Committee on Data Protection of 2018, stated that poor encryption standards pose ‘a threat to safety and security of the personal data of data principles.’
The rules under Section 3(1)(h) also state that the intermediaries are empowered to preserve the information of their users for a period of 180 days on receiving such an order from the authorized agency ‘for investigative purposes’, even after the said user has deleted his/her account. This is particularly dangerous to the user’s privacy as in the absence of any data protection law in our country, it is unclear to the user how much data will be under surveillance and how safe this entire process is.
Unequal playing field for the publishers of different forms of media
The provisions of Article 14 of the Indian Constitution provide for the equal protection of the law and prohibits discrimination on the grounds of the same.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 rules do not apply to print and electronic media and thus promote hostile discrimination between various media houses.
However, digital media publications by television channels are covered under these rules. This encourages discrimination as the bigger, established media houses who run print media in addition to digital media continue to be able to circulate their content through print and simultaneously be exempted from the rules. Conversely, the smaller, low-budget independent media houses who rely solely on the internet to disseminate their information are deprived of this privilege, thus heightening the inequality between the two. This will lead to the downfall of the latter who play an integral part in circulating unbiased, legitimate content.
The definition of a ‘publisher of news media and current affairs content’ as under Section 2(1)(t) of the Act does not extend to replica e-papers of newspapers which is another ground for discrimination.
Existence of two statutory bodies governing a single set of rules
A difference of the bodies administering the different parts of the rules is also discriminatory in nature, as part II of the rules which deals with the regulation of intermediaries is administered by MeiTY and part III of the rules which deals with the regulation of digital news media is administered by the Ministry of Information and Broadcasting (MIB).
Violation of Article 19
Violation of Article 19(1)(a)
Article 19(1)(a) of the Constitution guarantees the freedom of speech and expression of all the citizens of the country.
Freedom of the press implicitly comes under Article 19(1)(a). In a country of over 100 crore people, it is imperative for the freedom of the press to prevail especially in the area of criticism of the Government to prevent totalitarianism. The rules, under the premise of catering to the safeguard of the people of India’s sensibilities and traditions, seek to ‘regulate’ this freedom, however, by imposing such vague restrictions on such a broad area of categories, this seems more like an act of censorship which will have a chilling effect on the right to free speech and expression. Certain issues need to be depicted by these OTT platforms and intermediaries as this spreads awareness on certain realities and social evils which can only be prevented through circulation among the masses.
Violation of the right to freedom of opinion and the concept of democracy
Freedom of the press upholds the freedom of opinion which is the pinnacle of a democratic institution like India, as held in the cases of Romesh Thappar v. The State of Madras (1950) & Shreya Singhal v. UOI (2015).
Before the passage of this Act, the specific number of complaints received by the Government was merely 171 comments with 80 counter comments to the same. This is grossly disproportionate to the population of the country. The Government thus has not followed due diligence and held adequate consultations with the public to gain a justified consensus on the issue.
The press release of the MeiTY regarding these rules prohibits intermediaries from hosting ‘unlawful information’. The specifics of this are not mentioned and this could be used to the Government’s convenience to term any form of opposition and criticism towards it as ‘anti-national’ in nature, which could be transmitted to the masses through the intermediary platforms. This will inevitably lead to autocracy and is completely against the principle of democracy guaranteed by the preamble of our Constitution which upholds the same. As stated by K.M Munshi in the Constitutional Debate of 1st December 1948, ‘The essence of democracy is criticism of the government’. The need for the vibrancy of democracy to be retained was further emphasized in the case of Kihoto Hollohan v. Zachillhu And Ors. (1992) as democracy, which is put into effect by Article 19(1)(a) forms an integral part of the basic structure doctrine.
Violation of the right to information
Coupled with the violation of the right of freedom of the press, the grievance redressal mechanism of these rules is flawed. If they really were to cater solely to every single grievance and complaint as the rules state, the criteria according to which the intermediaries are required to take down content being complained about are very broad and vague in nature. Under the ambiguity of Section 3(b) of the rules, the press would suffer from a lack of credibility and this would hinder its circulation, ultimately building up to a point where the public is deprived of any legitimate news and issues which hinders their right to information.
In the judgments of UOI v. Association for Democratic Reforms (2002) and Anuradha Bhasin v. Union of India (2020), the Supreme Court formally recognized the people’s right to information and the right to be informed as a fundamental right. The users of social media intermediaries are denied their right to information in the event of an ‘emergency’ for the same reasons as stated above.
Usage of ‘technology-based’ measures
The regulation of the fundamental right to speech and expression by ‘technology-based’ measures will inadequately protect the data of the citizens of India. Section 4(4) of the Rules empowers the social media intermediary to employ ‘technology-based measures’, thus giving the intermediary the power to employ artificial intelligence tools. Artificial intelligence, as has been seen over time, is not flawless, as it relies on technology to solve problems relating to humans. The belief that such technology is not free from bias is false as well, as these technologies, in order to work have to be coded by humans who themselves are not bias-free and such coding biases further lead to a lack of accountability and transparency. It can be concluded that these rules empower Artificial intelligence to regulate the fundamental right of free speech and expression, which is very dangerous.
Validity of the Code of Ethics
The Code of Ethics established under Part III imposes additional penalties and obligations for the publishers of content on the internet to follow. The grounds on which such content can be declared as unethical are vague in nature and are likely to have a chilling effect on free speech and expression as well as cripple the creativity and artistic voice of the users and publishers of intermediary platforms. This immense ambiguity is unconstitutional, not to mention that the mere purpose of establishing a code of ethics cannot be said to have been derived from Section 79 of the parent Act.
Violation of the right to access the internet
The Anuradha Bhasin judgment led the Supreme Court to declare the right to access the internet as a fundamental right. The passage of these rules which puts various restrictions on the content available on the internet can also be understood to be a violation of the right to access the internet in its entirety, the scope, and nature of which is still evolving. The Kerala High Court was the first to declare this right as a fundamental right under Article 19 of the Constitution, in the case of Faheema Shirin R.K. v. State Of Kerala (2019).
Violation of Article 21
Article 21 guarantees an individual with the fundamental right of protection of his life and personal liberty. Article 14 needs to be harmoniously read with Articles 19 and 21, as held by the Court in Maneka Gandhi’s case. As the rules are clearly in violation of Articles 14 and 19 as proved above, this negates the constitutionality of the rules under Article 21 as well.
Right to privacy
The Court declared that the right to privacy fell under the ambit of Article 21 in the case of Justice K.S Puttaswamy (Retd.) and Anr. v. Union of India (2018).
From Section 3(j) of the rules we see that no actual autonomy given is to the intermediary, as on receiving the Government’s orders in writing, they are required to hand over personal information of the users and their data violating their right to privacy within 72 hours.
Under Section 7, if for any reason the intermediary does not follow the rules, Section 79 (1) of the IT Act 2000 guaranteeing the immunity of the intermediary (also known as the ‘safe harbour provisions’) stands cancelled and they can face action under the Indian Penal Code, 1860. The intermediary is thus left at the mercy of the government, to act as its puppet, and in order to continue to receive this immunity, it has to obey the Government’s orders to hand out our private information to them leaving our data and privacy at risk.
Encryption under the Right to Privacy
Section 4(2) of the Rules violate an individual’s right to privacy as intermediaries providing primarily messaging services are now required to ‘enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a court of competent jurisdiction or an order passed under Section 69 by the Competent Authority, as per the Information Technology (Procedure and Safeguards for the interception, monitoring, and decryption of information) Rules, 2009, which shall be supported with a copy of such information in electronic form’. This violates the end-to-end encryption services guaranteed by such intermediaries. The grounds on which this identification and traceability are to be given by enabled intermediaries are vague such as what exactly constitutes ‘public order’ is not defined. This promotes the arbitrary action of the government.
Violation of Article 50
Article 50 highlights the separation of powers between the legislature and the executive. This concept has been reiterated in the case of Kesavananda Bharati v. State of Kerala (1973) as well as in Indira Nehru Gandhi v. Shri Raj Narain & Anr. (1975). In the former case, the Court established that if any rule is found to be in violation of the basic structure doctrine of the Constitution, it needs to be removed.
It would appear from these rules especially under Section 3(d) that the Government (executive) might take advantage of the Courts (judiciary) and use the power of the court to pass such orders to strengthen and further their own cause.
This article, which comes under the Directive Principles of State Policy, speaks of the separation of powers between the executive and the judiciary. However, these rules, though touted to continue to allow the intermediary to function with autonomy, bring into question this exact fact under the Grievance Redressal Mechanism of Chapter 3 Section 12. The second level of the self-regulating mechanism states that the self-regulatory body would be headed by a retired ‘a retired judge of the Supreme Court, a High Court, or an independent eminent person from the field of media, broadcasting, entertainment, child rights, human rights or such other relevant field, and have other members, not exceeding six, being experts from the field of media, broadcasting, entertainment, child rights, human rights and such other relevant fields.’
The catch in this however is that the self-regulating body can only come into effect after it has been registered with the Ministry of Information and Broadcasting (MIB- who is part of the executive branch of governance) once it is satisfied with the same.
Violation of Article 312
In the case of D.S. Garewal v. State of Punjab and Another (1958), the Supreme Court held that Article 312 of the Constitution dealt with the powers of delegated legislation. Any law, in order to become an Act, must be passed by the Parliament. This is a known fact. Although the government can say that they have the permission to pass these rules under Section 87(2) of the IT Act, 2000, there are certain limits to which the concept of delegated legislation can be implemented.
For example, as observed by the seven-judge Constitutional Bench in the landmark judgment of In Re: The Delhi Laws Act 1912, ‘powers mustn’t be legislated so loosely that the area of the delegated legislation cannot be ascertained, leading it to cover all areas of law’. This is a clear example of the same as despite being derived from Sections 79, 69A and 87 of the IT Act, 2000, the act has not expressly mentioned that it empowers the Government to make such rules as to govern the area of digital news or news media let alone prescribe digital media ethics.
Thus, it would appear that the Central Government has misinterpreted the intention of the Act to suit its own intentions, which is not permitted under the concept of delegated legislation as to state that one is performing the delegated powers of a duty one was never empowered to exercise in the first place, as it was never mentioned in the parent Act either is a clear abuse of powers as the government has acted outside the limits of authority of the Act as can be seen in the case of Hukam Chand Shyam Lal Etc v. Union of India & Others (1975). Since the grounds on which the government has passed this Act are clearly invalid, it automatically makes the rules passed by them unconstitutional and void as well. The Court should follow the precedent set by it in Kunj Behari Lal Butail And Ors v. State of Himachal Pradesh And Ors (2000) and declare the rules as invalid.
Another ambiguity to prevent such misuse of the concept of delegated legislation can be derived from the judgment in the case of St. Johns Teachers Training Institute v. Regional Director, NCTE (2003), where it was established that rules cannot in any way be made to replace the parent Act; it can only be made to enhance or supplement it.
From the above analysis, it is evident that the Government has managed to bypass the due process that is required for the passing of laws of such gravity, in order to further their own interests which will inevitably lead to an increase in their control over the content portrayed by the social media intermediaries and OTT platforms. It is of utmost urgency that these rules be revised in order to allow the intermediaries and other forms of digital media to retain their independence themselves, in such a way that is in line with the laws of society and the customs and sensibilities of the people as well.
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