"Gross disregard of fundamental rights:" Lawyer moves Delhi High Court challenging Rules 3 and 4 of IT Rules, 2021

The latest petition questioning the validity of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021(IT Rules, 2021) has been mounted in the Delhi High Court by a lawyer, who has focused his challenge on Rules 3 and 4 (Uday Bedi v. Union of India). .In his petition, advocate Uday Bedi has contended that these Rules grossly disregard the his fundamental rights as a user of social media intermediaries (SMIs) such as WhatsApp, Instagram, Twitter etc..In particular, it is argued that the challenged Rules violate Articles 14 (right to equality, including the right against arbitrariness), 19 (which includes freedom of speech and expression) and 21 (right to life and personal liberty, which is interpreted to include the right to privacy) of the Constitution of India. .Rule 3 of the IT Rules, 2021 pertains to "due diligence by an intermediary", whereas Rule 4 deals with "additional due diligence to be observed by significant social media intermediary." Inter alia, these rules deal with how intermediaries are expected to deal with complaints made on intermediary/ social media platforms. .Bedi has contended that with the operation of these rules, "the Petitioner who is a regular user of the SMIs, is no longer being afforded protection of privacy in his communication with his peers and clients, freedom to express his views and protection from arbitrary action of the State.".Bedi adds that these rules have been made in bad faith and in disregard of the doctrine of separation of powers and checks and balances that exist in a democratic form of government..Highlights of the petitioner's contentions include:.With the challenged IT Rules, the Union government has given private SMIs the power to entertain and act upon complaints received by private persons, as well as on a voluntary basis to delete access to any information available on their platform if the conditions prescribed in Rule 3(1)(b) and 3(1)(d) are met. By doing so, the Centre has attempted to overrule the Supreme Court’s judgment in Shreya Singhal v. Union of India wherein it was held (while interpreting Section 79(3)(b) of the IT Act, 2000) that intermediaries cannot be given the power to judge as to which requests for taking down any information are legitimate, and which are not. The third proviso to the Rule 3(1)(d) allows sweeping powers to the SMIs to voluntarily and on the basis of complaints received from private individuals decide to remove access to information deemed fit by it. The third proviso to Rule 3(1)(d) goes beyond the parent legislation, i.e., Section 87 of the IT Act, 2000, which prescribes that the rules may be made in furtherance of Section 79(3) of the IT Act, 2000. The said rule is completely beyond the scope of Section 79(3) of the IT Act 2000, to the extent that it permits the SMI to remove access to information voluntarily or on a complaint made by a private individual. As such, it is illegal and unconstitutional in view of the Shreya Singhal judgment. The challenged rules have allowed the SMIs to place the users of these platforms under constant surveillance which is a gross breach of the right to privacy which has been recognised by the Hon’ble Supreme Court of India in KS Puttaswamy v. Union of India.The rules do not make it clear on what basis and by which mechanism the Social Media Intermediaries can voluntarily take action, without peeping into all conversations that take place over SMI platforms. The rules would empower WhatsApp to constantly watch all communications taking place on the platform. In fact, the threat of criminal liability has been placed upon the SMIs if they do not breach the privacy of the users to track the data and information being exchanged. The power to put the petitioner and other users under constant surveillance also bears no rational nexus with the objective of the IT Act, 2000 and is therefore in violation of Article 14 of the Constitution of India. IT Act, 2000 does not in any manner give sweeping powers to the intermediaries. Therefore, the Rules go beyond the scope of the IT Act, 2000 and sub-delegate powers which the Union government is not authorized to, making the rules ultra vires the IT Act, 2000. Rule 3 severely impinges the fundamental right to freedom of speech and expression. Rule 3(1)(d) provides that an SMI shall be entitled to remove access to any information that is prohibited under any law for the time being in force. It is submitted that the said condition is not within the contours of the restrictions mentioned in Article 19(2) of the Constitution of India. The State cannot create a mechanism by way of a positive action allowing private entities to violate fundamental rights. The rules are arbitrary and irrational as they do not prescribe any guidelines with respect to qualification, expertise, experience and judgment skills, or the procedure of appointment of a Grievance Officer or Chief Compliance Officer by SMIs and Significant SMIs who have been given the responsibility of disposing of complaints. A wide power to put users under surveillance and to restrict free speech of the citizens has been placed in the hands of a private individual of a private entity, which is shockingly disproportionate and completely unjustified. The rules prescribe no appellate procedure against the decision of the Grievance Officer and/or the Chief Compliance Officer, making them arbitrary. The procedure for disposing of a complaint made under the Impugned Rules contains no provision for the author of the information to be heard prior to taking action on any or removing information, effectively depriving him of his fundamental rights without even being heard. The complaint made will be decided without holding a trial or any procedure by which the author of the information can defend his right. As a direct result of the same, the challenged Rules do not strike a balance by restricting access to only limited part of the information that is beyond the boundaries of free speech, akin to censorship. While a time limit has been prescribed under Rule 3(2) to dispose of a complaint within 15 days, there is no such time limit prescribed when a person aggrieved as a result of access of the information being removed/disabled requests for reinstatement of the said information under Rule 4(8). There is no logical explanation as to why the time limits for the two should be different from one another. Rule 3(1)(h) is further an arbitrary and unreasonable provision as it provides for an SMI to retain the data of every person for 180 days even after the user of the SMI has terminated using the services of the said SMI. It is submitted that the retention of data for 180 has no rational nexus with the objective of the IT Act, 2000. It is relevant to note that even if the person is not under any investigation for violation of the rules, an obligation has been imposed to retain his or her data without any justification, which too is a gross violation of the right to privacy of the user. The data that is likely to be so retained is usually the email id, phone number, photograph and other such sensitive information of the user. Rule 4(2) of the Impugned Rules require the Significant SMI (SSMI) to find out the first originator of a message, which completely breaches the right to privacy as the same is not possible without decrypting all information that is stored, published, hosted or transmitted through such SSMI, which is a shockingly disproportionate and deeply pervasive encroachment over the right to privacy of the petitioner and other users who use such services for all private communications..In view of these contentions, Bedi has urged the High Court to strike down Rules 3 and 4 of the IT Rules, 2021 "to the extent that they violate the fundamental rights of the Petitioner and also go beyond the limits of the Information Technology Act, 2000.".Other parties who have challenged the IT Rules, 2021 before the Delhi High Court include news portals The Wire, The Quint, and AltNews and the Press Trust of India. .Earlier this month, the High Court declined to allow interim relief in applications moved by The Wire, The Quint, and AltNews, while granting time to the Central government and other respondents to reply to the applications filed for the same. .Delhi High Court refuses to grant interim relief (for now) to The Wire, The Quint, AltNews in challenge to IT Rules, 2021.Other petitions challenging the IT Rules have been moved before the High Courts of Madras, Kerala and Bombay. In view of there being multiple petitions on the issue, the Centre had also moved a transfer petition in the Supreme Court so that all cases may be heard by the top Court. However, as of now, the Supreme Court has not issued any stay on any of the High Court proceedings.