Rajya Sabha Motion for Annulment of Sec 79 rules
( Speech by honourable MP Sri P.Rajeev on May 17, 2012)
Sir, I move:
“That this House resolves that the
Information Technology (Intermediaries Guidelines) Rules,
2011 issued under clause (zg) of sub-section (2) of Section
87 read with sub-section (2) of Section 79 of the
Information Technology Act, 2000 published in the Gazette of
India dated the 13th April, 2011 vide Notification No. G.S.R
314(E) and laid on the Table of the House on the 12th
August, 2011, be annulled; and That this House recommends to
Lok Sabha that Lok Sabha do concur in this Motion.”
Sir, after a long time, our Parliament is discussing a Statutory
Motion. This is one of the rarest occasions in Parliamentary
proceedings. Normally, Parliament would not get an opportunity
to discuss rules. Statutory Motion is the only opportunity for
Parliament to discuss rules. Parliament has the power to make
laws. But the power to make rules is delegated to the Executive.
The legal requirement is that the rule should be in accordance
with the parent Act. But, nowadays, we find that most of the
rules are ultra vires the parent Act. The Information Technology
(Intermediaires Guidelines) Rules, 2011, is a clear-cut
illustration of this trend, which needs to be curbed by the
supreme law-making body of the country, that is, Parliament. The
World Summit on the Information Society is going to be held in
Geneva tomorrow, where different aspects, including
Government-control on internet by our country, are going to be
discussed. We are discussing this Motion today, and this would
reflect on the Conference which is to be held in Geneva.
Coming to the grounds for this Statutory Motion, I would like to
state one important thing. I am not against any regulation on
internet, but I am against the control on internet. What is the
difference between regulation and control? Recently, Justice
Markandey Katju correctly made a distinction between control and
regulation. In control, there is no freedom. In regulation,
there is freedom within the reasonable restrictions given under
our Constitution. The Information Technology (Intermediaries
Guidelines) Rule is an attempt to control the cyber space. It is
an attempt to curtail freedom of speech and expression which has
been ensured under article 19 (1) (a) of the Constitution. Sir,
we have enough legal provisions to regulate the internet. The
I.T. Act, 2000, has a very strong provision to regulate
internet. I would like to invite the attention of this august
House to Section 69 of the Act. Section 69 (1) gives powers to
issue direction for blocking, for public access, any information
through any computer resource. This Section has correctly
specified what the offendable things are. Now, I quote Section
69 (1): “If satisfied that it is necessary or expedient so to do
in the interest of the sovereignty or integrity of India, the
security of the State, friendly relations with foreign States or
public order or for preventing incitement to the commission of
any cognizable offence, relating to above, it may subject to the
provisions of sub-section (2).” These are correct formulations.
This is in accordance with article 19 (2) of the Constitution.
But, in addition to that, Section 69 (3) talks about
intermediaries. What are intermediaries? Now, when we use the
I-pad in Parliament, we get the internet access through the MTNL.
So, that is an intermediary. Likewise, Google and Yahoo are
intermediaries.
Facebook and Twitter are intermediaries. Web hosters are
intermediaries. These are intermediaries. In the Act itself
there are strong provisions to control these intermediaries. 69
A (3), “The intermediary who fails to comply with the direction
issued under sub-section (1) shall be punished with an
imprisonment for a term which may extend to seven years”.
Section 69 A (3) is a very strong provision in the Act itself.
Sir, the Government has made rules on the basis of Section 69,
i.e. the Information Technology (Procedure and Safeguards for
Blocking for Access of Information by Public) Rules, 2009. Sir,
if the formulation of procedure is very correctly framed, then,
how can the content be blocked by an intermediary? The
designated officers are there. Specific Committees are there.
Reviewing Committees are there and as per this Rule, there is a
strong provision to control the intermediaries also. A provision
to not only regulate, but even to ‘control the intermediaries’
is there in the Act itself. Then, Sir, there are too many
criminal provisions in the IT Act. While coming to Section 66 A
of the IT Act, “causing annoyance or inconvenience
electronically has a penalty of three years and does not require
a warrant to arrest.” That is the provision of the Act itself.
That shows the IT Act itself and the rule in accordance with
several sections of the Act give power to the Government, and
also to the intermediaries, to deal with all these things. Then,
what is the urgency for the new rule? Sir, in 2004, Avnish
Bajaj, the CEO of Baazee.com, an auction portal, was arrested
for an obscene MMS clip that was put up for sale on the site by
a user. The Baazee.com case, a well-known case, resulted in an
appeal by the industry to amend the Information Technology Act
by providing protection to intermediaries from liabilities
arising out of user-generated content. Sir, the intermediaries
have no editorial control on the content. That is true. Then,
certain protection should be there. For this, the IT (Amendment)
Act, 2008 amended Section 79 of the IT Act, 2000 to provide for
safe harbour protection to intermediaries. The safe harbour
protection available to intermediaries is conditional upon their
observing “due diligence” while discharging their duties under
the Act and observing guidelines issued by the Government in
this regard. Sir, these guidelines prescribing “due diligence”
to be observed by intermediaries were notified in April 2001 in
the form of IT (Intermediaries Guidelines) Rules 2011. Sir, why
should these rules be annulled? That is the content of the
Statutory Motion. Firstly, Sir, these rules are ultra vires to
the parent Act. Section 79 intended to give harbour protection
to the intermediaries. The purpose of Section 79, amended
Section, is to give harbour protection to the intermediaries
from other liabilities, but this rule has gone against the
intent of Parliament by introducing a private censorship
mechanism. Sir, this is private censorship. Delhi High Court in
2002 has specifically stated that pre-censorship cannot be
countenanced in the scheme of our Constitutional framework. That
is the verdict of Delhi High Court in 2002. These Rules, the new
Rules, which we are discussing now, cast an obligation on the
intermediaries to remove access to any content within 36 hours
on receiving a complaint from an affected person, that falls
under the category of a wide vague undefined list of “unlawful”
content specified in the Rules. That is true. The rule should
act, but defacto they are compelled to remove the content.
That is the reality. It has been experienced by several
organisations and other people by giving some complaints and the
content was removed within 36 hours. The unlawful content has
been mentioned under Rule 3(2) of Intermediaries Guidelines.
Rules 3(2) says, "Such rules and regulations, terms and
conditions or user agreement shall inform the users of computer
resource not to host, display, upload, modify, publish,
transmit, update or share any information." Then, Sir, 3(2)(b)
specifically states what are the offendable contents, but
without defining what are these. Sir, I would not like to take
more time to read all these things. But, I would only say any
information that is grossly harmful, harassing, blasphemous,
defamatory, obscene, pornographic, pedophilic, libellous and
there are several things has to be informed to the computer
users. It is neither defined in the Rules nor is defined in the
Act. But, Sir, Section 69 of the Act specifically defined
unlawful content. The correct formulation of Section 69
specifically defined unlawful content which came under the
purview of Article 19(2) of the Constitution. But, Rule 3(2) of
the Intermediaries Guidelines goes beyond the Act which is a
clear violation of the Act.
Sir, my second point on the ultra vires of the parent Act is
Section 69. Sir, Section 69 of the Act gives power to the
Government to issue direction for interception or monitoring or
decryption of any information through any computer resource.
Sir, Section 69(2) provides for procedures and safeguards
subject to which such interception or monitoring may be carried
out. The executive has made a rule on the basis of Section 69.
It clearly specifies what are the provisions and procedures
followed by the executive to take information with regard to the
user. But, Sir, Sub-Rule 7 of Rule 3 of the Intermediaries
Guidelines mandates the intermediary to provide information of
any such assistance to Government agencies without any
safeguards. This is a clear violation of the Act. This is
clearly against the guidelines specifically framed by the
Supreme Court in Telephone Tapping Case. This is a clear
violation of Section 69 of the IT Act and this could have
serious implications on the right to privacy of citizens. I come
to Section 88 of the Act. There is a provision for Cyber
Regulations Advisory Committee. Soon after commencement of the
Act, Cyber Regulations Advisory Committee consisting of -- who?
-- the interests of principally affected or having special
knowledge on the subject matter to advise the Government on
framing the rules. In the Act itself, there is a provision to
constitute an Advisory Committee. Sir, Information Technology,
cyber space, etc., are new sectors and hence expertise is
required. So, the Government has correctly framed Section 88 in
the IT Act to constitute Cyber Regulations Advisory Committee to
advise the Government for framing the rules. These rules,
without seeking any advice from the Committee, have been framed.
It is because even after one decade this body has not yet been
formed. The advisory mechanism or body to guide the Government
on framing the rules has not yet been constituted even after one
decade of the Act! This is a very serious thing. Sir, the apex
court of the country has quoted several rules which are ultra
vires of the parent Act. I am sure, as an eminent lawyer, our
hon. Minister, Mr. Kapil Sibal, is well aware of the fundamental
principles of the Subordinate Legislation that essential
legislative function cannot be undertaken by the executive since
it is the sole prerogative function of the Parliament. It is the
sole prerogative function of the Parliament. It should not be
delegated to the executive. If the Government wants any change,
it has to come to Parliament. That is my first ground on this
Motion. Secondly, this rule is violation of the Constitution.
Article 19(1) of the Constitution ensures the right to freedom
of speech and expression. Article 19(2) of the Constitution
specifically defines the 'reasonable restrictions'. But, Rule 2
goes beyond article 19(2) of the Constitution. The Supreme Court
held in the Express Newspaper Private Limited versus the Union
of India case that if any limitation on the exercise of the
Fundamental Right under article 19(1) does not fall within the
purview of article 19(2) of the Constitution, it cannot be
upheld. This was the verdict given by the apex Court in that
case. In several cases, such as that of Mohini Jain versus the
State of Karnataka, the Supreme Court of India quashed the rule
saying that it was ultra vires of the Constitution, stating that
the rule violates the principle of natural justice.
The rule does not provide an opportunity to the user who has
posted to reply to the complaint and justify his or her case.
This whole mandates the intermediary to disable the content
without providing an opportunity to hear the user who posted the
content. In some countries like America and the European Union
countries, there is a provision to hold the content, remove the
content for some days and after hearing the user who posted the
comment, there is a provision to repost it. Such safeguards are
not here. This is a clear violation of the principle of natural
justice and it is highly arbitrary.
Fourthly, this rule prohibits the posting of certain content on
the Internet while it may be lawful in the other media. For
example, an article may be permitted in the print media, it may
be permitted on television, the visual media, but the same
article might be prohibited from being reproduced in a web
edition. Sir, the Ministry issued a clarification in 2011. In
that clarification, the Ministry had claimed, and stated:-
"These due diligence practices are the
best practices followed internationally by well-known
mega-corporations operating on the Internet".
Sir, it might be true. But self-regulation should not be equated
with Government control. The Ministry, in the same
clarification, also stated, and I quote:-
"The terms specified in the Rules are in
accordance with the terms used by most of the Intermediaries
as part of their existing practices, policies and terms of
service which they have published on their website. In case
any issue arises concerning the interpretation of the terms
used by the Intermediary, which is not agreed to by the user
or affected person, the same can only be adjudicated by a
court of law".
What is the logic, Sir? Their attitude is, 'run away from
defining these terms'. The Ministry has stated that the
Intermediaries have defined these terms; if you have any
objection to the definition, then, you can approach the court of
law. What a logic, Sir! We are creating an avenue for judicial
interpretation. We are running away from our own
responsibilities. This is totally against the basic principles
that we follow in law-making and in rule-making. Finally, Sir, I
would like to submit what the internatonal approach is. The U.N.
Human Rights Council says, and I quote:- "Censorship measures
should never be delegated to a private entity. No one should be
held liable for content on the Internet of which they are not
the author. Indeed, no state should use or force Intermediaries
to undertake censorship on its behalf".
This is what the declaration of the U.N. Human Rights Council
states. That is the duty of the Government. As per the Act
itself, there are certain provisions by which the Government can
intervene and regulate the Internet. Several rules are there as
per section 69 of the Act. But these rules in accordance with
section 79 of the I.T. Act go beyond the Fundamental Rights
enshrined in the Constitution, they also go beyond the
principles which are being followed internationally and they
also go against the declaration of the U.N. Human Rights
Council.
Finally, Sir, we should recognize multistakeholder nature of
internet. Tomorrow, in Geneva, there is a very serious debate on
this multi-stakeholder. India has proposed some code and some
Government control measures. I support some part of it. But, we
should protect multi-stakeholder nature of the internet. This is
a very serious attack on the freedom of speech and expression.
This is a very clear violation of the parent Act, which is ultra
vires to the parent Act, and ultra vires to the Constitution.
This is against the principles of natural justice. So, I request
the House to annul this rule itself to protect the rights of
Parliament. Do not delegate these powers to the Executive. If
the Minister wants any change, let him come to the House with an
amendment Bill and make the rules accordingly. With these words,
I conclude. Thank you, Sir. The question was proposed.
Naavi
May 18, 2012
P.S: The Motion was however defeated with the Government only
promising further discussions
[Comments welcome]
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