Sourav Paul
Introduction
On 25th February 2021,the Government of India notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediaries Rule 2021”) under Section 87 of the Information Technology Act, 2000 (“IT Act”).[i] It superseded the Information Technology (Intermediaries Guidelines) Rules, 2011. Through this new set of rules, the Government intends to control rather than regulate the publisher of news or current affairs content and online curated content (including over-the-top or OTT platforms). It also provides for due diligence mechanism for social media intermediaries, failing which they will be penalized. It has generated many controversies, as some argue that the said rules are an attack on freedom of speech and expression[ii], violative of the right to privacy under Article 21[iii], etc.
However, for the purpose of this article, the author focusses on the rule-making authority of the Executive and argues that the Intermediaries Rules 2021 are ultra vires since it travels beyond the scope of the parent Act. The author traces the scope of delegated legislation in India and examines the relevant provisions of the said rules to substantiate the aforementioned point.
Delegated Legislation: Power and Scope
The Indian polity follows the doctrine of separation of powers; wherein law-making is the fundamental function of the legislature. It is implicitly recognized and protected under the Basic Structure doctrine.[iv] The Constitution of India established the Parliament of India to act as the supreme legislature of the country, one with the mandate to make laws in furtherance of the goals of the Constitution and to hold the Union of India accountable for its policies.
However, often the legislature confers its law-making power to a delegate (mostly, the Executive), which is popularly known as delegated legislation.[v] Due to the need to transact Government business expeditiously and smoothly, the Act provides the basic framework and policy principles, but through a section in the Act it delegates to the Executive to frame rules/regulations/notifications/by-laws/sub-rules, to provide clarity regarding the procedures and details for the proper implementation of the Act.
It is imperative to note that these delegated legislations cannot travel beyond the scope of the parent Act, and if it expands the scope of the parent Act, it will be ultra vires and liable to be struck down.[vi] 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.[vii]
In J.K. Industries v. Union of India, the court expounded on this principle. In this case, the court had to determine whether Accounting Standard 22 entitled accounting for taxes on income insofar as it relates to deferred taxation is inconsistent with and ultra vires to the provisions of the Companies Act, 1956 and Income Tax Act, 1961.[viii] The Court stated that delegated legislation is ultra vires when it is not in conformity with the statute from which it derives its powers or fails to consider the vital factors required to be considered by the parent statute or the Constitution. It also held that the delegated legislation must supplement the Act and not cross the limits of the Act.[ix] It stated that the character of such subordinate legislation is to fill the gaps and perform ancillary and subordinate legislative functions.[x] Lastly, whenever the validity of such legislations are challenged, the courts must examine the nature, object, and scheme of the legislation in its entirety and consider the areas over which powers are delegated.[xi]
However, the judiciary is reluctant to strike down such subordinate legislation primarily because the petitioner challenging such rules has to fulfill a high threshold. The courts presume that Parliament maintains oversight over such rules. Once drafted by the Government, the rules are laid on the floor of both the Houses of Parliament to seek its approval. In D.S. Grewal v. State of Punjab, the court upheld the validity of Section 3 of the All India Services Act, 1951, which was challenged on the ground of excessive delegation of legislative power.[xii] The court stated that this mechanism empowers the legislature to “maintain strict vigilance and control over its delegate.”[xiii] This principle was later reiterated in Lohia Machines Ltd. v. Union of India, where the validity of rule 19A of the Income Tax Rules, 1962 was challenged.[xiv]
Examining Provisions of the Intermediaries Rule 2021
Pursuant to Rule 4(2) of the Intermediaries Rule 2021, the social media intermediaries providing messaging services are required to identify the “first originator” of information on their platform. The “first originator” is an internet user who starts sharing any mischievous information or other detrimental activities.[xv] However, the parent statute, i.e., the IT Act does not provide any guidance to interpret obligation. It must also be noted that “first originator” is not even defined in the said rule or the parent Act.
As per Rule 4(4), the Government has sub-delegated its power to remove unlawful content to private and unaccountable intermediaries without clarifying the kinds of “automated tools” that may be deployed. The construction of this clause is highly ambiguous because there is no guidance as to how consensual sexual conduct can be differentiated from rape. This rule empowers such unaccountable intermediaries enormous powers to determine appropriate technological measures to remove rape and other sexually explicit content.
Pursuant to Part III of the said rule, the Government has established a three-tier grievance redressal mechanism for the OTT platforms and digital news media platforms. However, the parent legislation is silent on grievance redressal mechanism for such platforms. Hence, it empowers the State with arbitrary and unbridled power to travel beyond the scope of the parent Act. In Hiralal P. Harsora v. Kusum Narottamdas Harsora, it was held that the object of the legislation could be interpreted from its preamble, as it lays down the intended aim and purpose of the Act.[xvi] The preamble of the IT Act reads:
“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.”
Therefore, a close reading of the preamble clearly establishes that the IT Act does not cover content regulation for either digital news media platforms or OTT platforms.
As per Rule 14, the inter-ministerial committee will serve as the appellate body for grievances against the decision taken at Level I or II of the three-tier structure. The Government, through this rule, has conferred judicial functions to the committee, which were never set out in the parent Act. It is well-settled that quasi-judicial powers should be exercised by persons having judicial knowledge and expertise.[xvii] However, none of the committee members are from a legal background and are mere representatives of the concerned ministries. Interestingly, the rule is also arbitrary because it allows the Government to be a “judge in its own cause.” In the Shayara Bano case, the court laid down the test of manifest arbitrariness, which reads:
“Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.”[xviii]
In the Indian Express Newspaper case, the court stated that the doctrine of manifest arbitrariness could be a ground for quashing subordinate legislation.[xix] The court stated that “Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary.”[xx]
Conclusion
In 1967 the Supreme Court cautioned that “a powerful executive may unduly overstep the limits of delegation,” which is evident from the situation at hand.[xxi] In light of the aforementioned arguments, it is clearly established that the rules go beyond the scope and purview of the IT Act and hence ultra vires. However, the laxity of the Parliament in the examination of such rules must be noted. Post-1971, it was made a ‘regular practice’ to incorporate a clause in a Bill to specify the laying of subordinate legislation before the Parliament for 30 days.[xxii] Hence, there is no constitutional obligation to submit such rules to the scrutiny of the House. Both the Houses of Parliament have Standing Committee on Subordinate Legislation required to study the rules and seek expert and public opinion.[xxiii] Unfortunately, no discussion on specific rules has taken place in the 14th and 15th Lok Sabha.[xxiv]
Therefore, the Parliament must setup additional working committees under these committees, with legal and policy experts to help undertake a comprehensive study of all rules placed before the Parliament. Failure of parliamentary oversight of delegated legislation can lead to abrogation and abuse of the Executive’s rule-making powers. The present litigation concerning the Intermediaries Rules 2021 is a textbook example of the same.[xxv] The matter is sub-judice, and the author hopes that the court takes note of the importance of the matter, since it will pave the way for a sustainable, legitimate digital regulatory regime in India.
[i] Aashish Aryan and Pranav Mukul, ‘Govt frames new rules to hold social media, OTT accountable for content’ (Indian Express, 27 February 2021) < https://indianexpress.com/article/technology/tech-news-technology/govt-frames-new-rules-to-hold-social-media-ott-accountable-for-content-7205063/>
[ii] Devdutta Mukhopadhyay, ‘Now Streaming: The chilling effect of new IT Rules’ (Indian Express, 11 March 2021) < https://indianexpress.com/article/opinion/columns/new-it-rules-ott-platforms-content-youtube-netflix-amazon-7222873/> accessed 11 March 2021; Christophe Jaffrelot and Aditiya Sharma, ‘India’s new digital rules are bad news for democracy’ (Indian Express, 4 March 2021) < https://indianexpress.com/article/opinion/columns/social-media-rules-whatsapp-twitter-facebook-ott-platform-content-modi-govt-7213191/>
[iii] Md Tasnimul Hassan, ‘Rules to regulate digital content undermine freedom of expression as well as right to privacy’ (National Herald, 5 March 2021) < https://www.nationalheraldindia.com/opinion/rules-to-regulate-digital-content-undermine-freedom-of-expression-as-well-as-the-right-to-privacy>
[iv] Keshavananda Bharati v State of Kerala [1973] 4 SCC 225, [316]; See also Manasvin Andra, ‘Excessive Delegation and Separation of Powers in India’s Right to Information Legislation’ (Administrative Law in the Common Law World, 5 May 2020) < https://adminlawblog.org/2020/05/05/manasvin-andra-excessive-delegation-and-separation-of-powers-in-indias-right-to-information-legislation/>
[v] V.N Shukla, ‘Judicial Control of Delegated Legislation in India’ [1959] 1(3) Journal of Indian Law Institute 357,374
[vi] Additional District Magistrate (Rev.) Delhi Administration v Shri Ram [2000] 3 SCR 1019
[vii] General Officer Commanding-in-Chief v Dr. Subhash Chandra Yadav [1988] SCR (3) 62, [14]
[viii] J.K Industries Ltd. v Union of India & Ors. [2007] INSC 1154
[ix] See also Kunj Behari Lal Butail v State of Himachal Pradesh [2000] 1 SCR 1054, [13]
[x] See also Global Energy Ltd. v Central Electricity Regulatory Commission [2009] AIR SC 3194, [43]
[xi] See also State of Karnataka v H. Ganesh Kamath [1983] 2 SCC 402, [7]
[xii] D.S. Grewal v The State of Punjab [1959] AIR 512
[xiii] ibid [8]
[xiv] Lohia Machines Ltd. v Union of India [1985] AIR 421, [26]
[xv] Aparna Banerjea, ‘Social media will be asked to reveal the first originator of mischievous tweet or message: Govt releases guidelines’ (Livemint, 25 February 2021) < https://www.livemint.com/news/india/social-media-will-be-asked-to-reveal-the-first-originator-of-mischievous-tweet-or-message-it-minister-11614241834843.html>
[xvi] Hiralal P. Harsora v Kusum Narottamdas Harsora [2016] 10 SCC 165, [16]
[xvii] Union of India v Namit Sharma [2013] 10 SCC 359, [26]
[xviii] Shayara Bano v Union of India [2017] 9 SCC 1, [52]
[xix] Indian Express Newspapers v Union of India [1986] AIR 515; See also Sakal Papers Ltd. v Union of India [1962] AIR SC 305; See also Bennett Coleman and Co. v Union of India [1973] AIR SC 106
[xx] Indian Express Newspapers v Union of India [1986] AIR 515, [345H]
[xxi] Devi Das Gopal Krishnan v The State of Punjab [1967] AIR 1895, [15]; See also Siddharth Ganguly, ‘Are the New IT Rules the Next Sedition Law?’ (The Leaflet, 1 March 2021) < https://www.theleaflet.in/are-the-new-it-rules-the-next-sedition-law/#>
[xxii] Arvind Kurian Abraham, ‘Delegated Legislation: The Blindspot of the Parliament’ (The Wire, 16 May 2019) < https://thewire.in/government/delegated-legislation-parliament-executive>
[xxiii] P.B. Mukharji, ‘Delegated Legislation’ [1959] 1(4) Journal of Indian Law Institute 466, 468
[xxiv] Anirudh, ‘How well does Parliament examine rules framed under various laws?’ (The PRS Blog, 10 January 2011) < https://www.prsindia.org/theprsblog/how-well-does-parliament-examine-rules-framed-under-various-laws> accessed 11 March 2021; See also Sana Ali and Ambar Sharma, ‘Parliamentary panels’ role reduced, function at all-time low, data show’ (Business Standard, 20 September 2020) < https://www.business-standard.com/article/current-affairs/parliamentary-panels-role-reduced-functioning-at-all-time-low-data-show-120091500552_1.html>
[xxv] LiveLaw News Network, ‘Breaking: Kerala High Court issues notice on LiveLaw’s plea challenging New IT Rules; Orders no coercive action’ (LiveLaw, 10 March 2021) < https://www.livelaw.in/top-stories/kerala-high-court-new-it-rules-orders-no-coercive-action-issues-notice-on-livelaws-plea-170983>
Sourav Paul is a first year law student at West Bengal National University of Juridical Sciences (WBNUJS Kolkata).
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Constitutional Law Society 
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