Calcutta High Court Issues Notice On A Plea Challenging IT Rules 2021

A division bench comprising Acting Chief Justice Rajesh Bindal and Justice Arijit Banerjee issued notice in the plea and directed the Centre to file a counter affidavit before July 19. Furthermore, the petitioner was asked to submit a reply before the next date of hearing which is slated to take place on August 4.

The PIL has been filed by petitioner Sayanti Sengupta who is represented by Senior Advocate Bikash Ranjan Bhattacharyya and Advocates Saptarshi Banerjee and Jamiruddin Khan.

The Petitioner submits that she being an active user of intermediary platforms like whatsapp, facebook, instagram, gmail is aggrieved by the Information Technology (Intermediary Guidelines and digital Media ethic code) Rules, 2021 dated February 25, 2021 which is in absolute violation of right to privacy, right to freedom of speech and expression. 

In the plea, the petitioner states that the promulgated Rules violate the fundamental right to equality under Article 14 and the freedom of speech and expression enshrined in Article 19(1)(g) of the Constitution.

"The philosophy of freedom of speech and freedom of expression is the foundational ethos of our constitution. That no authorities under the garb of exercise of its rule making power can take away the foundational basis of our constitutional principle", the petition states.

The petitioner also argued that the Rules infringes the fundamental right to privacy which is the constitutional core of human dignity

Averments in the plea:

The plea contends that promulgation of categories such as 'significant social media intermediary' and their subsequent regulation facilitate excessive government discretion in determining which platforms need to comply with what regulations. Further, such power is further reinforced by Rule 6 vide which the government by order can require any such 'significant social media' intermediary to comply with a host of obligations in the event there exists a 'material risk of harm'. The petitioner averts that such a threshold of 'material risk of harm' is vague, arbitrary and enforces authoritarian compliances.

The plea also makes a reference to Rule 3 (c) whereby social media intermediaries have to mandatorily notify all users at least once a year that in case of non-compliance with rules and regulations, it has the right to terminate the access or usage rights of such users.

"Such rule is nothing but a coercive procedure to keep every citizen under threat of consequences. This is nothing but simply creating disturbance in peaceful and innocent mind of people thereby in the name law enforcement, forcing and prohibit them not to speak or express freely", the petition reads.

Furthermore, Rule 3(1)(h) permits intermediaries to retain information of its users for a period of 180 days even after cancellation or withdrawal of the account. Such rule the petitioner states violates the 'right to privacy' of individuals.

The petitioner also refers to Rule 4(2) which permit the identification of the 'first originator of information' thereby violating the fundamental right to privacy, right to freedom of speech and expression. It is also ultra vires to the various provisions of the Information Technology Act, 2000 as amended till date.

The plea also contends that the creation of a non-judicial body such as the 'oversight committee' to resolve grievances regarding posted content, violates the parent Act i.e. the Information Technology Act, 2020.

Although reasonable restrictions on fundamental rights is permitted, the petitioner argues that such excessive state regulation might be misused.

"From the real life experience it cannot be ruled out that under garb of these rules the authorities' basic intention is to rope any criticism of the governmental action under the perception of "security of India" thereby threatening the people not to use this social media", the plea stated.