A petition has been filed in the Kerala High Court by Praveen Arimbrathodiyil, a free and open-source software (FOSS) developer and a volunteer member of the Free Software Community of India (FSCI), challenging certain provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter “Intermediary Rules, 2021”). The Petitioner is represented by SFLC.in’s legal director, Prasanth Sugathan, and counsels at SFLC.in. The petition has been admitted and notice has been issued to the respondents.
The Petition has been filed under Art. 226 of the Constitution of India for quashing Part II of the Intermediary Rules, 2021, and declaring them violative of the Article 14, 19 and 21. The Ministry of Information Technology and Electronics (hereinafter “the MeitY”) had notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules of 2021 vide Notification No.G.S.R.139(E). on 25th February 2021. Some important features of the Intermediary 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 Intermediary Rules, 2021 are broader in scope than the draft Intermediary Rules, 2018 which were put out for public consultation.
The main grounds challenged in the Petition are –
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The Intermediary Rules, 2021 place unreasonable restrictions on users in expressing themselves online, thus impacting their right to free speech and expression and fundamental right to privacy.
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The terms used in the Intermediary Rules, 2021 s are vague and ambiguous.
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The Intermediary Rules, 2021 seek to undermine end to end encryption which is a subset of fundamental right to privacy as enshrined in Justice K.S. Puttaswamy vs. Union of India (2017).
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The Intermediary Rules, 2021 draw no intelligible differentia between not-for-profit FOSS communities and for-profit proprietary companies.
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The Intermediary Rules, 2021 place a huge compliance burden on FOSS entities or services thus, impacting their right to trade and business.
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That there was a lack of stakeholder consultation in contravention of the Government of India’s Pre-Legislative Consultation Policy.
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The rules are in contravention to Shreya Singhal V. Union of India (2015).
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The Intermediary Rules, 2021 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.
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The Intermediary Rules, 2021 are a delegated legislation and are ultra vires as they are inconsistent with the Information technology Act, 2000 i.e. the parent legislation.
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The Intermediary Rules, 2021 also place an adjudicatory role on intermediaries.
(You can read our analysis of the Intermediary Rules, 2021 here)
UPDATE FROM COURT HEARINGS
22.09.2021
The Counsel for the Petitioner submitted that the matter was admitted on 09-04-2021 and no counter has been filed till now by the government. The counsel representing the ASGI sought more time to file counter. He further stated that he has received instructions that a transfer petition is filed before the Supreme Court. The Counsel for the petitioner submitted that this matter challenges Part II of the Rules and this is not listed in the cases to be transferred. The Court has granted further 3 weeks to Union of India to file counter.
21.10.2021
The ASGI submitted that Union of India was taking steps to file transfer petition to file before the Supreme Court. The matter was then adjourned to be listed when moved again.
23.03.2022
Counsel for Petitioner moved an application for hearing on the steps taken by Union of India which was listed on 23.03.2022. The Counsel for Petitioner submitted that no transfer petition was filed since the last day of hearing. The ASGI submitted that transfer petitions have been filed before the Supreme Court in matters challenging Part III of the Intermediary Rules, 2021. The ASGI has sought time to seek instructions on filing transfer petitions in matters challenging Part II of the Intermediary Rules, 2021.
01.04.2022
The ASGI submitted that Union of India has filed the Transfer Petition before the Supreme Court and it is now pending before the Supreme Court for listing. The matter is now adjourned to be listed when moved again.
Current Status
The Petition has now been transferred to the Supreme Court and is pending adjudication. The transfer Petition has been filed by Union of India through the Ministry of Information and Braodband and the Ministry of Electronics and Information Technology before the Supreme Court tagging all the Petitions across the country challenging the The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IL Rules, 2021”).
A copy of the petition is attached here for reference.
