This article has been written by Devashish Tiwari and Ayush Sharma, 4th year B.B.A. LL.B. Students at JIMS, School of Law (Affiliated to Guru Gobind Singh Indraprastha University, Delhi).
Ever since the notification of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, the government of the day has been receiving backlash from all corners of society. Under the guise of promoting self-regulation, there has been an attempt to compromise the freedom of speech of digital media. Aspersions are often cast upon the intentions of the actions of the present government; however, the same is not unfounded, given the precedents of this very government in matters concerning public importance. For many, these rules denote the rise of fascism & the breakdown of democracy in the country. Amid this political slugfest, let us take a moment to analyze what this regulation is & how it abridges the very foundation on which our constitution is based.
The ruling government on 25th February 2021 notified the IT rules 2021 via its official gazette. What followed after was an enraged response from the public. A three-tier mechanism has been announced through the new rules; the first two tiers elucidate self-regulatory measures by the platform itself, whereas the third tier is an oversight mechanism in case of a contingency that warrants instant remedial action against the content. The first tier recommends the appointment of a grievance redressal officer to be appointed by the content creator itself, which is bound to act on a receipt of a complaint within 15 days. The second tier embodies the self-regulatory method of the streaming methods headed by a retired Supreme Court judge or High Court judge. The final & third tier encompasses an inter-departmental committee for the resolution of the grievances.[i]
Procedural Blemishes – Legal Challenges
The present rules are a case of excessive delegation, suffering from procedural defects. When regulation & oversight is not prescribed by the parent Act then bestowing the same via delegated legislation raises inevitable legal challenges, on which the Apex Court has already made its stand amply clear. If delegated legislation goes beyond the scope envisioned by the parent Act, then it can’t be sustained and is liable to be struck down.[ii] If a rule goes against the authority of the parent Act or statute, on this ground alone the rule is liable to be set aside.[iii] The Supreme Court reiterated its stand that the delegated legislation can’t enlarge the objective of the Act, the rules have to be in line with the objectives & provisions of the parent Act, contrary to which the legislation becomes ultra vires & is liable to judicial scrutiny.[iv]
In the case of Shreya Singhal Vs. Union of India, the Apex Court rightfully struck down Section 66-A of the Information Technology Act, 2000 which penalized content that causes “annoyance” or is “offensive”, on the ground of vagueness. The Information Technology Rules 2021 exceeds the scope contemplated by the Information Technology Act, 2000, the parent Act, besides going against the spirit of the ruling of Shreya Singhal rendered by the Supreme Court. By bringing back the impugned rules emanating similar objectives through its code of ethics, thus undoing the result of Shreya Singhal’s judgment. Simultaneously, attempting to do something indirectly, that is prohibited directly, nullifying the effect of the established legal dictum, Quando aliquid prohibetur ex directo, prohibetur et per obliquum, which has been upheld by various legal precedents.[v]
Over-regulations of Digital Media – Conundrum of Rights & Restrictions
The fundamental right to freedom of speech & expression is regarded as one of the basic elements of an active & vibrant democracy since it allows the citizens to participate in the political process of the country, including expressing their dissent against the government policies. It is axiomatic that no right is absolute, but restrictions imposed should not be more than what is required. The Supreme Court rightfully recognized that Article 19(1)(a) of the constitution guarantees freedom of speech & expression to receive information regarding matters of public concern.[vi]
One cannot rule out the possibility of misuse of these rules to target outspoken journalists who are critical towards government draconian actions & policies, hindering journalistic freedom, the fourth pillar of democracy. By means of these rules, the line between the rights & restrictions has been further blurred, leaving it to the whims & fancies of the government of the day via its emergency powers to decide the degree of restriction, therefore, strangulating free speech. The government by its actions has arrogated itself the functions of deciding disputes, which ought to have been discharged by the judiciary & which it did not possess earlier.
With the introduction of the draconian IT rules, 2021, digital media can be subjected to a code of ethics, allowing the government to block content provided it goes against the sovereignty, integrity & other grounds which are indeed legitimate restrictions. However, blocking the content based on “public order” is a very vague ground, to say the least, and is heavily prone to misuse.[vii] If anyone from the society lambastes the functioning of the government or expresses its disagreement with the policies of the government on an online platform, the government can invoke the defence of “public order”, which it is known to do for face-saving, therefore, stifling any kind of dissent.
The immunities that intermediaries earlier possessed in respect of their functioning, as held in Avnish Bajaj Vs. State[viii] confront the peril of being done away with since, under the new IT rules, intermediaries can be compelled to track the originator of the message. Therefore, end-to-end encrypted chats can potentially be a thing of the past & mockery will be made of privacy.[ix] Also, the data retention period has been extended to 6 months. The repercussions of these rules will have a chilling effect on the landmark ruling of K.S. Puttaswamy Vs. Union of India, enunciating the right to privacy, which can result in a state of surveillance. Adding insult to injury, the absence of robust data protection laws shall ensure that the privacy of the internet users will go for a toss.
Ousting Judicial Scrutiny – Strangulating Democratic Framework
It is also worth highlighting that to contain the spread of hate, defamatory, false & obscene content; we already have a dearth of penal provisions including civil & criminal law, courtesy of provisions like Section 153A, 295A 499, & 505 of the Indian Penal Code, 1860 & Section 66E, 67 & 67A of the Information Technology Act, 2000, providing for judicial recourse in case a person is aggrieved by digital content, however by the means of this rules, the judicial process has been attempted to be ousted by empowering the executive to act against the content that it deems “objectionable” in its opinion as per its whims & fancies, hence doing away with any form of accountability. We ought to strengthen our judicial system by timely filling of vacancies across the courts rather than creating an imbalance of powers among the institutions, by letting the executive subjugate other institutions.
The rules also entrust emergency power to the law enforcing agencies (On the Directions of Ministry of Information & Broadcasting) that they are authorized to take down any content if necessary without rendering the opportunity of being heard to another party, again a provision which can be misused to the height of absurdity.[x] The power to adjudicate such matters should have been vested with the judiciary, the third pillar of the democracy, denoting an overreach of power by the executive. It comes as no surprise that we have fallen to 53rd position in the 2020 Democracy Index’s Global Ranking & 111th position in the 2020 Human Freedom Index.
As an opportunity cost of regulating the online digital platforms, fundamental rights of the citizens have been proposed to be compromised. The present government is indeed by the people but apparently not for the people. As the matter has reached various High Courts challenging the vires of the Rules, now it’s up to the Courts to obliterate this imbroglio, a lot would depend upon the courage of the court to call a spade a spade & stand up as an institution to defend the right of the citizens & not to abdicate its responsibility. The balance of powers among the democratic institutions in a democracy is much required, which is being attempted to be imbalanced. It can be said without an iota of doubt that regulation is required in the context of digital media but that cannot come at the cost of the fundamental rights of the citizens, without any data protection laws & procedural blemishes. Judicial review should be the way to go rather than executive exhortations.
[i] Rule 9(3) of Information Technology Rules, 2021.
[ii] Ajoy Kumar Banerjee v Union of India (1984) 3 SCC 127.
[iii] Union Of India & Ors vs S. Srinivasan, (2012) 7 SCC 683.
[iv] Assam Co. Ltd. v. State of Assam, (2001) 4 SCC 202.
[v] State of Bihar Vs. Kameshwar Singh, AIR 1952 SC 252, M/S. M.R.F. Ltd. Vs. Manohar Parrikar & Ors., Civil Appeal No. 4220 of 2002 & Rajiv Agarwal Vs. Union of India, W.P.(C) 7978/2020
[vi] State of U.P vs Raj Narain & Ors, 1975 AIR 865.
[vii] Code of Ethics, Information Technology Rules 2021.
[viii] Avnish Bajaj Vs. State (2005) 3 CompLJ 364 Del.
[ix] Rule 4(2) of Information Technology Rules, 2021.
[x] Rule 16 of Information Technology Rules, 2021.