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On February 25, the government formally notified the the ‘Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021’. The Rules have been framed under the Information Technology Act, 2000, by the Ministry of Electronics and Information Technology (MeiTY), which administers the Act.
These rules seek to regulate content in social media platforms (intermediaries) like Twitter and Facebook — a consequence of the government feeling that unbridled content on these platforms is sometimes inimical to the country’s interests. These rules deal with a range of undesirable content, from pornography to spread of false information to content violative of IP laws to content that threatens the unity, integrity, security and sovereignty of India.
Questions raised
Now, keep the rules aside for a moment. Some questions have been raised about the very validity of the rules on technical grounds. Raghav Ahooja, a law student at the Rajiv Gandhi National University of Law, Punjab, who writes regularly on the “intersection of law and technology”, point out a technical flaw in the framing of the rules.
Writing in LiveLaw.in , Ahooja says that MeiTY is now empowered to frame the rules, as regulating ‘digital media’ content is the remit of the Ministry of Information and Broadcasting (MIB). Nor can MIB frame the rules because it is not the ministry that administers the IT Act, 2000. The Allocation of Business Rules, 1961, clearly defines which ministry does what.
Problematic stand
In this case, while MeiTY itself has said that the part of the rules that pertain to digital media shall be administered by MIB, Ahooja says that such a stand is problematic because in law, what cannot be done directly, cannot be done indirectly.
The IT Act, 2000, does not seek to regulate digital media — it does not even define digital media. Ahooja says that the Supreme Court has in the past held that “if a rule goes beyond the rule making power conferred by the statute, the same has to be declared ultra vires (beyond one’s authority).”
Ahooja’s argument is that the rules cannot be made under the IT Act (which more relates to cyber crimes). “Therefore, the said rules go beyond the scope and purview of the IT Act, and travel beyond the parent Act. Thus, the rules are ultra vires the IT Act & are liable to be challenged in Court on both the grounds,” he says.
It is really up to MIB to regulate digital media. If it wishes to, it must do so in consultation with MeiTY, but it must be the MIB that should bring in a legislation and get it passed through the Parliament, Ahooja says.
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