On June 6, 2022, the Ministry of Electronics and Information Technology released the draft amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) for public feedback.  The IT Rules were notified on February 25, 2021, under the Information Technology Act, 2000 (IT Act).  The Ministry noted that there is a need to amend the Rules to keep up with the challenges and gaps emerging in an expanding digital ecosystem.  In this blog post, we give a brief background to the IT Rules, 2021 and explain the key proposed changes to the Rules.

Background to the IT Rules, 2021

The IT Act exempts intermediaries from liability for user-generated content on their platform provided they meet certain due diligence requirements.  Intermediaries are entities that store or transmit data on behalf of other persons and include telecom and internet service providers, online marketplaces, search engines, and social media sites.  IT Rules specify the due diligence requirements for the intermediaries.  These include: (i) informing users about rules and regulations, privacy policy, and terms and conditions for usage of its services, including types of content which are prohibited, (ii) expeditiously taking down content upon an order from the government or courts, (iii) providing a grievance redressal mechanism to resolve complaints from users about violation of Rules, and (iv) enabling identification of the first originator of the information on its platform under certain conditions.  It also specifies a framework for content regulation of online publishers of news and current affairs and curated audio-visual content.  For an analysis of the IT Rules 2021 please see here.

Key changes proposed to the IT Rules 2021

Key changes proposed by the draft amendments are as follows:

  • Obligations of intermediaries:  The 2021 Rules require the intermediary to “publish” rules and regulations, privacy policy and user agreement for access or usage of its services.   The Rules specify restrictions on the types of content that users are allowed to create, upload, or share.  The Rules require intermediaries to “inform” users about these restrictions.  Proposed amendments seek to expand the obligation on intermediaries to include: (i) “ensuring compliance” with rules and regulations, privacy policy, and user agreement, and (ii) "causing users to not" create, upload, or share prohibited content.
     
  • The proposed amendments also add that intermediaries should take all reasonable measures to ensure accessibility of their services to all users, with a reasonable expectation of due diligence, privacy, and transparency.   Further, intermediaries should respect the constitutional rights of all users.  The Ministry observed that such a change was necessary as several intermediaries have acted in violation of the constitutional rights of citizens.
     
  • Appeal mechanism against decisions of grievance officers:  The 2021 Rules require intermediaries to designate a grievance officer to address complaints regarding violations of the Rules.  The Ministry observed that there have been instances where these officers do not address the grievances satisfactorily or fairly.  A person aggrieved with the decision of the grievance officer needs to approach courts to seek redressal.  Hence, the draft amendments propose an alternative mechanism for such appeals.  A Grievance Appellate Committee will be formed by the central government to hear appeals against the decisions of grievance officers.  The Committee will consist of a chairperson and other members appointed by the central government through a notification.  The Committee is required to dispose of such appeals within 30 days from the date of receipt.  The concerned intermediary must comply with the order passed by the Committee.  Note that the proposed amendments do not restrict users from directly approaching courts.
  • Expeditious removal of prohibited content:  The 2021 Rules require intermediaries to acknowledge complaints regarding violation of Rules within 24 hours, and dispose of complaints within 15 days.  The proposed amendments add that the complaints concerning the removal of prohibited content must be addressed within 72 hours.  The Ministry observed that given the potential for virality of content over internet, a stricter timeline will help in removing prohibited content expeditiously.

Comments on the draft amendments are invited until July 6, 2022.   

Tribunals function as a parallel mechanism to the traditional court system.  Tribunals were established for two main reasons - allowing for specialised subject knowledge in disputes on technical matters and reducing the burden on the court system.  In India, some tribunals are at the level of subordinate courts with appeals lying with the High Court, while some others are at the level of High Courts with appeals lying with the Supreme Court.  In 1986, the Supreme Court ruled that Parliament may create an alternative to High Courts provided that they have the same efficacy as the High Courts.   For an overview of the tribunal system in India, see our note here.

In April 2021, the central government promulgated an Ordinance, which specified provisions related to the composition of the search-cum-selection committees for the selection of members of 15 Tribunals, and the term of office for members.  Further, it empowered the central government to notify qualifications and other terms and conditions of service (such as salaries) for the Chairperson and members of these tribunals.  In July 2021, the Supreme Court struck down certain provisions of the Ordinance (such as the provision specifying a four-year term for members) stating that these impinged on the independence of the judiciary from the government.  In several earlier judgementsthe Supreme Court has laid out guidelines for the composition of Tribunals and service conditions to ensure that these Tribunals have the same level of independence from the Executive as the High Courts they replace.  

However, Parliament passed the Tribunals Reforms Bill, 2021 in August 2021, which is almost identical to the April Ordinance and includes the provisions which had been struck down.  This Act has been challenged in the Supreme Court.  For a PRS analysis of the Bill, please see here.  

On 16th September 2021, the central government notified The Tribunal (Conditions of Service) Rules, 2021 under the Tribunals Reforms Act, 2021.  A couple of the provisions under these Rules may contravene principles laid out by the Supreme Court:

Appointment of the Administrative Member of the Central Administrative Tribunal as the Chairman

In case of the Central Administrative Tribunal (CAT), the Rules specify that a person with at least three years of experience as the Judicial Member or Administrative Member may be appointed as the Chairman.  This may violate the principles laid down by the past Supreme Court judgements.  

The CAT supplants High Courts.  In 1986, the Supreme Court stated that if an administrative tribunal supplants the High Courts, the office of the Chairman of the tribunal should be equated with that of the Chief Justice of the High Court.  Therefore, the Chairman of the tribunal must be a current or former High Court Judge.  Further, in 2019, the Supreme Court stated – “the knowledge, training, and experience of members or presiding officers of a tribunal must mirror, as far as possible, that of the Court it seeks to substitute”.  

The Administrative Member of the CAT may be a person who has been an Additional Secretary to the central government or a central government officer with pay at least that of the Additional Secretary.  Hence, the Administrative Member may not have the required judicial experience for appointment as the Chairman of CAT.

Leave Sanctioning Authority

The Rules specify that the central government will be the leave sanctioning authority for the Chairperson of tribunals, and Members (in case of absence of the Chairperson).   In 2014, the Supreme Court specified that the central government (Executive) should not have any administrative involvement with the members of the tribunal as it may influence the independence and fairness of the tribunal members.  In addition, it had observed that the Executive may be a litigant party and its involvement in administrative matters of tribunals may influence the fairness of the adjudication process.   In judgements in 1997 and 2014, the Supreme Court recommended that the administration of all Tribunals should be under a nodal ministry such as the Law Ministry, and not the respective administrative ministry.  In 2020, it recommended setting up of a National Tribunals Commission to supervise appointments and administration of Tribunals.  The Rules are not in consonance with these recommendations.