Sakshi Rajawat, Khyati Jain*
The online curated content providers or the OTT platforms are entities which provide streaming services over internet including but not limited to movies, series, shows, etc. These contents are generally made available on demand via subscriptions by publishers like Netflix, Amazon Prime, Hotstar and many more. The range of content shown is very wide and not censored, it has shown which showcase violence, sexual content, abusive language and vulgarity among other things.
In the recent press release by the Ministry of Information & Broadcasting it was observed “the increasing instances of misuse of social media by criminals, anti-national elements have brought new challenges for law enforcement agencies”. Prior to the introduction of these rules India did not have any specific law to regulate the content online but there were various provisions under which steps could be taken by authorities to control it. These included Article 19(2) of the Constitution which imposes reasonable restrictions on the freedom of speech; multiple sections of Indian Penal Code like Section 293[i] (w.r.t obscene content), Section 295A[ii] (intentionally outraging religious sentiments), Section 499[iii] (Defamation), etc.; there are also provision under POCSO Act which penalizes child pornography. Besides these the IT Act also imposed penalty under section 67A[iv] (publishing obscene material), 67B[v] (sexually explicit material) and 67C[vi] (depicting children in sexual acts). These rules are not statutory and give the government extensive powers to control and censor the content put by social media (intermediaries) including online news media (publishers).
In furtherance of this The Ministry of Electronic and Information Technology on 25th February 2021 notified The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021under the Information Technology Act 2000. As mentioned before the motive behind bringing this rule was to develop a mechanism to regulate as well as receive complaints with respect to the content put on social media, online news and OTT platforms.
In this essay, the authors shall first deal with the question of whether the delegation done under the newly introduced IT Rules fall under the ambit of its parent law. The Essay further deals with the judgment of the court in Shreya Singhal[vii] which decided on the issue of fundamental right of speech and expression and whether the new rules comply with the same or not?
IT RULE 2021 – WELL DELEGATED OR NOT?
When the legislature formulates a law, it makes provisions for the executive to make further rules and issue guidelines related to that legislation under it according to the changing needs and circumstances. This is essentially delegated legislation which allows for formulation of new laws without actually going through the process of making a new legislation. Though it is extremely necessary there are restrictions to the delegation as well. The parliament delegates its power to make laws only within the broader framework of the parent act and not beyond. If a rule or a guideline formulated within a particular act goes beyond the scope of its parent act or exceeds its jurisdiction, it is considered ultra vires. “A rule cannot enjoy the powers of a statutory provision unless (i) it conforms to the statute under which it is framed; (ii) it comes under the scope and purview of the rule-making power of the authority framing the rule”.[viii]
Section 87(2)(z) and Its Relevance
IT Rules 2021 brought under section 87 (2)(z) and (zg) of the Information Technology Act, 2000 [IT Act] is ultra vires as it exceeds the scope of its parent act which provides for regulation of electronic commerce and cybercrimes and not digital media. A reading object and reasons of the Act is evident enough to show that content regulation of OTT platforms and digital news media is not within its ambit.[ix]With respect to the “digital new portal” the rules made cannot be delegated as the IT Act 2000 only provides for legal recognition, authentication and facilitation of interchange of electronic data and electronic communication which is not related to regulation of news portals.
Moreover, regulation of electronic content can be done under the Act in only two distinct ways which are (1) offences of cyber terrorism under section 66F[x]; sexually explicit material under Section 67-A[xi]; obscene material under Section 67[xii], child pornography under Section 67-B[xiii]. All the mentioned offences hold no relevance to news portal publishing news online. (2) Any content which goes against “the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing 8 incitements to the commission of any cognizable offence relating to these”[xiv]
Section 87(2) (zg)[xv], under which the IT Rules have been formulated deals with the guidelines to be observed by the “intermediaries” under section 79(2). Intermediary is anyone who stores or transmits data on behalf of other persons and includes entities like telecom service providers, online marketplaces, and now social media platforms as well.[xvi] But none of these include media new channels or OTT platforms as they will be considered as publishers and not intermediaries according to both the parent Act and the rules. Evidently, the provision under which the rules have been made does not rightly cover either news portals or OTT platforms under its ambit.
Another pertinent point to be taken into consideration is the fact that the notifications were issued by The Ministry of Electronics and Information Technology (MEITY) whereas “digital media” comes under the ambit of Ministry of Information and Broadcasting (MIB). MEITY is supposed to make rules and guidelines only with respect to cyber laws and IT Act 2000 and other matters related thereto[xvii], including intermediaries none of which concerns matters enumerated under Part III of the IT Rules 2021. Publishers of content on digital media must come under the MIB and not under the IT Act. OTT and digital new platforms require a Specific legislation which must be formed under Ministry of Information and Broadcasting. Till, then the IT Act will have a precedence over the OTT platform and the issues relating to the same, meaning thereby that only those specific provisions under the IT act which prescribes for the regulation of electronic content (section 66, 66F, 67 etc) can be used for regulating the OTT platforms and digital news platforms and anything beyond that cannot be implemented as it cannot take precedence over the specific legislation.
Indian Court’s Stance
The Supreme court of India in the case of DS Gerewal v. State of Punjab[xviii], said that Article 312 of the Indian Constitution talks about the power of delegation, nothing can take away this right which is vested in the legislature of the country. In the case of Gwalior Rayon Silk Manufacturing co. v. Assistant commissioner of sales tax[xix], the validity of a newly inserted section was challenged as ‘excessive delegation’, the court in the case said, “when the legislature confers power on any authority to make delegated legislation, it must lay down policy, principle or standard for the guidelines of the authority concerned.” There is no doubt that in India, delegated legislation is permitted, however it is important that the same is within the ambit of the parent act.[xx] The purview of digital media and publisher of news have not been defined anywhere in the parent act and so any rules in furtherance of the same cannot be enacted as a delegated legislation cannot introduce completely new concepts beyond the scope of the parent act and the subordinate legislation must conform to the provisions of the Parents Act.[xxi]Rules cannot be contrary and repugnant to the provisions of the principal enactment or go beyond its nature, object and scheme.[xxii]While the courts in India have time and again adjudged that excessive delegation is not permitted, the current issue is still pending under various cases in High Court and Supreme Court. The above cases are cited as the rules made in these cases went beyond the scope of the parent act as is the case with current IT rules.
WHETHER THE RULES GO AGAINST THE SHREYA SINGHAL JUDGMENT?
In the year 2015, The Supreme Court gave an important ruling in the case of Shreya Singhal v. The Union of India[xxiii] and dealt with the constitutional validity of section 66A with respect to Article 19(1)[xxiv] of the Constitution of India. Section 66A of the IT Act was struck down in the case giving importance to the right to free speech which is a fundamental right guaranteed to all the citizens.
Whilst dealing with the specific provisions of section 69A the Supreme Court in the case of Shreya Singhal[xxv], stated that the central government under the ‘Rules for Intermediaries 2011’ must designate an officer for the purpose of blocking under section 69A.[xxvi] Any person can contact and complain to this officer (Nodal Officer), the nodal officer, in turn, sends the application to the organization which deals with it as per the provisions of section 69A[xxvii]. The application is then sent to the nodal officer who gives it either to the intermediary or the government to block the information. The key feature highlighted in the judgment was that blocking is only done when the central government is satisfied that the narrowly drawn provisions of section 69A[xxviii] have been satisfied. The reasons for blocking are kept in writing. A Review Committee is also formed to look into the matter after something is blocked under the section.
The Redressal mechanism laid down under Part III of the IT Rules 2021, vouch for a three-tier mechanism. The first tier is a self-regulatory body comprising of the Producer himself who forms a grievance redressal mechanism which is to deal with complaints of violation, if any and if this decision is unsatisfactory the complainant can go to the appellate tier. The second tier is yet another self-regulatory body that must be presided by either Judge of High, Supreme Court, or any eminent person. This body resolves the grievances if the same is not resolved by the company. It has the power and authority to censure, warn, ask for the issuance of an apology, the addition of a disclaimer, etc.
The third tier is the Oversight mechanism – This tier consists of the Government and inter-ministerial committee which is authorized to publish charters for bodies like code of ethics and code of practices.
The reference of the judgment delivered by the Hon’ble Supreme court in the case of Shreya Singhal[xxix] is important here because the rules released recently take an opposite path from what the Apex court held in the much-celebrated case. Shreya Singhal put the burden and responsibility on The Nodal officer which the government appoints to decide if a particular piece on the internet violates the right to freedom of speech and expression, nowhere under the IT Rules 2021, 11 (3)(b)[xxx] the publisher itself is the Nodal officer which is not selected by the government or court. This has some serious repercussions first it goes against a set and much-celebrated precedent, further any person can exert influence over the publishers to bring down the content which is violative of Article 19. The Rules, therefore, are against the ruling of the court in the above case.
The Appeal against the IT Rules in the Kerala High Court
Several petitions have been filed by multiple digital news media channels since the proclamation of the IT Rules 2021 all of which are pending in some or the other High Courts in the country. While the Supreme Court is yet to decide on the constitutionality of the rules and the government is still sitting on its clarifications over the legitimacy of the rules, the Kerala High Court in a petition filed by Legal news portal- Live Law, has put an interim injunction on the action taken by the state against the non-compliance of the provisions under IT Rules (Part III). The issues in the petition remain that the Part III of the impugned rules extend beyond the scope of the IT Act 2000 and suffers from excessive delegation. More importantly, as has been iterated earlier the three-tier mechanism is under question again as it clearly makes the executive a judge in its own case[xxxi]. This brings light upon the fact that even High Courts are uncertain of the constitutionality of the rules and thus there is an urgent need for the Supreme Court to take stance on it.
There are glare legality issues in the way section 69A[xxxii] has been employed to curtail the rights of creators under Article 19[xxxiii]. The issue is more severe than it seems, the government via the newly introduced three-step grievance mechanism has assumed the greatest power in its own hand it is a glaring irregularity as the review of the judicial/quasi-judicial rests in the hand of the executive in the present case. The ramification is ‘monopoly’ of the government, monopoly of the government means ideology of the government in the varied forms of art we watch. It is as ludicrous as the advertisement where the word ‘breast’ was censored and removed with the word ‘chest’ in the advertisement for ‘breast cancer’.
In order to do away with the issue of ‘excessive delegation’, new legislation must be framed or necessary amendments be brought in the parent act to give a legitimate way for the guidelines to work. Additionally, the mechanism of Redressal mentioned in the guidelines must fall along the lines of the decided judgment of Shreya Singhal[xxxiv].
*Sakshi Rajawat and Khyati Jain are 3rd-year law students studying in HNLU and NMIMS Mumbai (BALLB) respectively. Interestingly both of their interest lies in reading fiction and singing. For any discussion related to the article, they can be contacted via mail at firstname.lastname@example.org and email@example.com.
[i] Information Technology Act 2000 § 295.
[ii]Information Technology Act 2000 § 295A.
[iii]Information Technology Act 2000 § 499.
[iv]Information Technology Act 2000 § 67A.
[v]Information Technology Act 2000 § 67B.
[vi]Information Technology Act 2000 § 67C.
[vii](2013) 12 S.C.C. 73.
[viii]General Officer Commanding-in-Chief v. Dr. Subhash Chandra Yadav,  SCR (3) 62.
[ix]An Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as ―electronic commerce, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Banker’s Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto.”
[x]Information Technology Act 2000 § 66F.
[xi]Information Technology Act 2000 § 67A.
[xii]Information Technology Act 2000 § 67.
[xiii]Information Technology Act 2000 § 67B.
[xiv]Information Technology Act 2000 § 69A.
[xv]Information Technology Act 2000 § 87(2) (z) (zg).
[xvi]Information Technology Act 2000 § 2(w).
[xvii]The Government of India (Allocation of Business) Rules 1961
[xviii] 1959 AIR 512.
[xix] (1974) 4 SCC 98.
[xx] IP Messy, Administrative Law, 103, (7th edn, Eastern book company)
[xxi]State of UP v. Renusagar; 1988 AIR 1737.
[xxii]Subhash Chand Aggarwal vs Union of India & Others (WRIT PETITION (CIVIL) NO. 8359 OF 2009;
[xxiii]Supra at vii.
[xxiv]INDIA CONST. art. 19 cl. 1.
[xxv]Supra at vii.
[xxvi] (2013) 12 S.C.C. 73.
[xxvii]Information Technology Act 2000 § 69A.
[xxix]Supra at vii.
[xxx]Information Technology Rules 2021 § 11(3)(b).
[xxxi] Live Law Media (P) Ltd. v. Union of India, WP(C) No.6272 of 2021.
[xxxii]Information Technology Act 2000 § 69A.
[xxxiii]INDIA CONST. art. 19.
[xxxiv]Supra at vii.