Plea Before Kerala High Court Assails Part II Of IT Rules, 2021, Says It Exceeds The Bounds Of Delegated Legislation

A petition has been filed in the Kerala High Court challenging certain provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

When the plea came before Justice P.V Kunhikrishnan, the Centre submitted that it was taking steps to file a petition before the Supreme Court in this regard. Accordingly, the matter was directed to be posted when moved again.  

The petition was filed by Praveen Arimbrathodiyil, a software developer and a volunteer member of the Free Software Community of India (FSCI) to quash Part II of the Intermediary Rules, 2021, and declare them violative of Articles 14, 19 and 21.

The Ministry of Information Technology and Electronics (MeitY) had notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules of 2021 on 25th February 2021.

A few of the important features of the IT Rules, 2021 include segregation of social media intermediaries into the two categories of "social media intermediaries" and "significant social media intermediaries"; requirement to prominently display privacy policy and usage of personal data by the aforementioned intermediaries; requirement to remove certain information by exercising due diligence, among others.

The IT Rules, 2021 are broader in scope than the draft IT Rules, 2018 which were put out for public consultation.

"The Intermediaries Rules, 2021 are liable to be set aside as they exceed the bounds of delegated legislation, place unreasonable restrictions on the exercise of freedom of speech and expression and on the freedom to carry out an online business, as guaranteed by the Constitution of India," the plea reads.

The main grounds challenged in the Petition are -

• They place unreasonable restrictions on users in expressing themselves online, thus impacting their right to free speech and expression and fundamental right to privacy.
• The terms used in the Rules are vague and ambiguous.
• They seek to undermine end to end encryption which is a subset of the fundamental right to privacy as enshrined in Justice K.S. Puttaswamy vs. Union of India (2017).
• The IT Rules, 2021 draw no intelligible differentia between not-for-profit FOSS communities and for-profit proprietary companies.
• The Rules place a huge compliance burden on FOSS entities or services thus, impacting their right to trade and business.
• That there was a lack of stakeholder consultation in contravention of the Government of India's Pre-Legislative Consultation Policy.
• The rules are in contravention to Shreya Singhal V. Union of India (2015).
• They prescribe technology-based solutions such as automated tools which would bring in inherent societal biases and prejudices leading to more problems than it intends to solve.
• The Rules are delegated legislation and are ultra vires as they are inconsistent with the Information technology Act, 2000 i.e. the parent legislation.
• The Rules also place an adjudicatory role on intermediaries.

The ASG informed the Court that the Centre is taking steps to file a petition before the Apex Court in this regard.

Previously, he informed the Court that a transfer petition has been filed before the Supreme Court.

However, the petitioner submitted that this matter challenges Part II of the Rules, which is not listed in the cases to be transferred. The Court had thereby granted 3 weeks to the Centre to file its counter.

The petitioner was represented by Advocates Prasanth Sugathan, Varsha Bhasker and N.R Reesha. ASG of India P Vijayakumar appeared for the respondents in the matter. 

Case Title: Praveen Arimbrathodiyil v. Union of India & Anr.