Digital Media Rules – Move Towards Totalitarianism?
An Indian flag flies on barricades erected by the police at a highway in Ghazipur on the outskirts of New Delhi, on Feb. 6, 2021. (Photographer: Anindito Mukherjee/Bloomberg)

Digital Media Rules – Move Towards Totalitarianism?

BloombergQuintOpinion

The promulgation of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 by Government of India on Feb. 25, 2021, immediately reminds one about the prophetic words of Professor KT Shah in the Constituent Assembly on Dec. 1, 1948.

He said – “The liberty of the person, ever since the consciousness of civil liberties has come upon the people, has been the main battleground of the autocrats and those fighting against them.... The autocrat, the despot, has always wished, whenever he was bankrupt of any other argument, just to shut up those who did not agree with him. It was, therefore, that any time the slightest difference of opinion was expressed, the slightest inconvenience or embarrassment was likely to be caused by any individual, the only course open to those who wanted to exercise autocratic power was to imprison or arrest or detain such a person without charge or trial. It has been in fact in many modern constitutions among the most cardinal articles that the liberty of the person shall be sacred, shall be guaranteed by the Constitution.”

Earlier on the same day, he had this to say – “The same or even a more forceful logic applies to the other ‘freedom of the press, and freedom of publication’. The freedom of the press, as is very well known, is one of the items around which the greatest, the bitterest of constitutional struggles have been waged in all constitutions and in all countries where liberal constitutions prevail. They have been attained at considerable sacrifice and suffering. They have now been achieved and enshrined in those countries.”

While ending he warned – “It is only in the German Constitution that the fundamental rights were subject to the provisions of the law that may be made by the legislature. That means that the citizens could enjoy only those rights which the legislature would give them, would permit them to enjoy from time to time.... I dare say, Sir, you know what was the result. Hitler could make his legislature pass any law, put Germans in concentration camps without trial under the provisions of law made by the legislature of Germany. We know what the result was. It was regimentation, that every German should think alike and anybody who differed was sent to concentration camps. Totalitarianism, fascism was the result.”

Rules Exceed The Act

These Rules have not even been made by Parliament but by the Delegate, the Central Government. The Rules are made under the Information Technology Act, 2000 and specifically under Sections 79, 69A, 87 thereof.

The Purpose Of The IT Act
The IT Act was necessitated following need to facilitate electronic commerce and to revise the law following Model Law on Electronic Commerce adopted by the United Nations Commission in 1997 on International Trade Law, to which India was a signatory. It was therefore necessary to revise the law as per the Model Law.

According to Statement of Objects and Reasons, the two principal hurdles which stand in way of facilitating electronic commerce and electronic governance are the requirements as to writing and signature for legal recognition. The purpose was to enable creation and conclusion of contracts through electronic medium and to provide for a regulatory legal regime to supervise the Certifying Authorities issuing Digital Signature Certification.

Simultaneously, the Indian Penal Code was amended by replacing ‘document’ with phrase ‘document or electronic record’ in several sections. Similarly several sections of Indian Evidence Act were also amended on the same lines, inter-alia to include ‘electronic record’ and ‘digital signatures’ at appropriate places.

The Scope Of The IT Act
A broad survey of Chapters II to VIII clearly shows that the Act was enacted to deal with digital signature and electronic signature and for electronic governance. Provisions contained in Sections 71 to 74 in the Act deal with penalties and they too indicate the limited nature of the scope and ambit of the Act as mentioned above.

The ‘intermediary’, as recognised under Section 2(w) of the Act, is specified in a narrow sense;

  • As “...any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record ...”.

  • Record here, refers to ‘electronic record’ - that is “data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche”.

  • The Act further lists ‘intermediary’ to include - “... telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes.”

  • Even the power to prescribe guidelines, conferred upon the central government under Section 79(2)(c) for the intermediary to observe due diligence, is followed by words “while discharging his duties under the Act”.

There is no one reference to digital news or news media in the Act, making it clear that it was never intended to govern, much less regulate, digital news media, or prescribe digital media ethics.

In order to legitimise the overreach of the Rules, the central government has included in them a definition of ‘content‘ to mean the electronic record defined in clause (t) of section 2 of the Act. Thereby adding under its ambit not just the transmission of electronic record but also the constituents of that record.

The central government cannot do what the Parliament can. It cannot travel beyond what the Parliament has prescribed.

The central government has no power in exercise of delegated powers to expand the definition to include and apply the Act to those who were never intended, much less expressly included, in the ambit of the Act.

It is well settled law that power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate upon whom such a power is conferred has to act within limits of authority conferred by the act [Hukam Chand v. Union of India, (1972)].

It is equally well settled that Rules cannot be made to supplant the provisions of enabling Act but only to supplement it. [St. Johns Teachers Training Institute v. Regional Director, NCTE, (2003)].

The Rules framed under any enactment must be for the purpose of carrying out any purpose of the Act, that is precisely why in Kunj Behari Lal Butail v. State of H.P., (2000), the Supreme Court declared the Rules to be invalid because they had sought to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself.

Clearly, Rules made by an Authority for discharging its functions under the Act must have a statutory peg to hang. Besides, these provisions are arbitrary and violate constitutional guarantee under Article 14.

For the same reasons, Part III -- providing a ‘Code of Ethics and Procedure and Safeguards In Relation To Digital Media’ -- together with Appendix to the Rules travels wholly outside the scope and ambit of the Act and imposes new obligations, liabilities and duties outside the scheme of the Act and that too on persons outside the ambit of the Act.

Besides, while purporting to impose obligations on digital media and their publishers and intermediaries, the obligations imposed in the Appendix are extraordinarily vague and so wide that they clearly fall foul of the constitutional guarantees.

Constitutional Guarantees

The right to ‘freedom of speech and expression’ guaranteed under Article 19 (1)(a) includes press freedom as has been authoritatively held by the Supreme Court in Express Newspapers v. Union of India, (1959).

Equally, freedom of speech and expression of ‘opinion’ is of paramount importance under a democratic constitution. Freedom of the Press is the ark of a covenant of democracy because public criticism is essential to the working of its institutions. Present times, in fact, demand even greater scrutiny of government and its institutions. Precisely on account of the nature of the right, very narrow limits have been set out under Articles 19 (2) to enable legislature to restrict the right to free speech. Equally, freedom of press includes right of the people to read and receive information.

This is how the Supreme Court has understood and defined Article 19 (1)(a) in a series of judgments beginning with Romesh Thappar (1950) and ending with Shreya Singhal (2015). A somewhat similar provision in Section 66A of this very Act was declared to be unconstitutional by the Supreme Court in Shreya Singhal’s case because the Court felt that the expressions used for imposing the restrictions were extremely nebulous and unconstitutionally vague.

We, therefore, hold that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth.
Supreme Court order in Shreya Singhal case

Chapter III of these new Rules imposes such onerous obligations on digital media in connection with the Code Of Ethics contained in the Appendix that it would now be impossible for them to act in compliance thereof.

There is no standard prescribed to determine as to which content (and how) affects

  • the sovereignty and integrity of India, or

  • threatens, endangers or jeopardises the security of State, or

  • which is detrimental to India’s friendly relations with foreign countries, or

  • is likely to incite violence or disturb public order

Nor would it be possible for digital news media to decide and exercise due caution and discretion while featuring the activities, beliefs, practices, views of any racial or religious group, India being multi-racial and multi-religious society.

The main IT Act has not defined these expressions nor has Article 19(2) of the Constitution. The Rules thus impose such obligations which are impossible to comply with.

Viewed differently the Rules impose obligations which can get attracted again and again and again if viewed from the standpoint of an individual who is allowed to raise a grievance in that regard. The Rules do not speak about ‘general public interest’ but appear to trigger upon a simple misunderstanding of any person and fasten liability of self regulation on digital media followed by consequences including the penalties prescribed in Rule 13(4) of Chapter IV, which are not even contemplated by the parent Act.

Viewed from constitutional and legal perspectives, the Rules collectively and/or individually violate constitutional guarantee under Article 19 (1)(a) (right to speech and expression) and are not saved by Article 19(2) (reasonable restrictions).

Hostile Discrimination

There is yet another aspect.

The rules do not apply to print and electronic media per say, although digital media publications by television channels do get encompassed by the Rules.

This clearly creates a seriously hostile discrimination and is violative of Article 14 of the Constitution. Government cannot seek to regulate one set of persons out of the same class while leaving the other set out as it has done here. Class legislation is prohibited but reasonable classification is permissible. What Article 14 aims at is to strike down hostile discrimination, oppression or inequality. As the guarantee applies to all persons similarly situated, it is certainly open to Legislature to classify persons and things to achieve a particular object. But such selection or classification should not be arbitrary and must rest on a rational basis which legislature has, in order to achieve a particular object.

Pertinently, the Act is singularly silent, but in purported exercise the central government has framed the rules prescribing hostile classification. If the object is to ensure that no publication is allowed with content which affects sovereignty and integrity, which endangers or threatens or jeopardises security of State or which is detrimental to foreign relations or for that matter which is likely to hurt activities, beliefs, practices or views of racial or religious groups then newspapers, periodicals and even books for that matter, even television channels must face the same consequences. By keeping them out, the Rules have created a clear discrimination. They are liable to declared invalid on this ground as well.

The Supreme Court has in the past taken the view that even while a piece of legislation or delegated legislations is discriminatory, instead of striking it down, the court has removed the hostile part and extended the applicability of the law/rules to the entire class. Thus, it can be argued that Rules be extended to print media and electronic media who are otherwise not covered thereunder to remove the vice of inequality.

“The Essence Of Democracy Is Criticism Of Government”

It is not difficult to fathom as to why in the face of clear provision of the Constitution and the declarations of law in respect thereof by the Supreme Court, the central government has chosen to bring the rules as it did.

The central government clearly appears to be wanting to control digital media, their publishers and intermediaries, since they have grown extremely popular in recent times – especially after 2014 when Prime Minister Narendra Modi’s government took over. With most sections of the mainstream print and electronic media generally not willing to question government and its actions, people were deprived of right to correct information. Freedom of speech and expression is two-way traffic; the speaker/writer as also the recipient are both entitled to the protection. A billion plus nation needs a strong, free press. As a result, these digital platforms have become popular and are posing a serious challenge to conventional newspapers and television channels.

Did the government act to placate traditional media brands and sustain their circulation/subscriptions?

One will never know.

But if these new digital platforms are to be flooded with thousands of grievances from thousands of persons on a daily/weekly/monthly or yearly basis, digital media would certainly stand to suffer in terms of credibility and circulation, threatening their very existence. The Rules will keep them engaged in grievance redressal and tie them up completely beyond comprehension.

The Rules clearly have not respected the views of the constitutional framers as echoed in following words by KM Munshi on Dec. 1, 1948;

“As a matter of fact the essence of democracy is criticism of government. The party system which necessarily involves an advocacy of the replacement of one government by another is its only bulwark; the advocacy of a different system of government should be welcome because that gives vitality to a democracy.”

Dushyant Dave is a Senior Advocate in the Supreme Court of India and former president of Supreme Court Bar Association.

The views expressed here are those of the author, and do not necessarily represent the views of BloombergQuint or its editorial team.

Disclaimer: QDML is among digital news media platforms that have challenged the validity of the new Rules in court. BloombergQuint is majority owned by entities common to QDML.

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