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.   

This week, the centre issued two Ordinances to amend: (i) the Salary, Allowances, and Pension of Members of Parliament Act, 1954 to reduce the salaries of MPs by 30% for a period of one year, and (ii) the Salaries and Allowances of Ministers Act, 1952, to reduce the sumptuary allowance of Ministers by 30% for one year.  The government also amended the rules notified under the 1954 Act to reduce certain allowances of MPs for one year, and suspended the MPLAD Scheme for two years.  These changes are being made to supplement the financial resources of the centre to tackle the COVID-19 pandemic.  These amendments raise larger questions on the effect they have on the capacity of the state to fight the pandemic, and the way in which salaries of MPs should be determined.

Overview of Amendments

The 1954 Act lays out the salary and various allowances that an MP is entitled to during their term in Parliament and also provides pension to former MPs.  MPs receive a salary of one lakh rupees per month, along with compensation for official expenses through various allowances.  These include a daily allowance for attending Parliament, constituency allowance and office expense allowance.  Under the first Ordinance, the salaries of MPs are being reduced by 30%.  Further, the constituency allowance and office expense allowance are being reduced by Rs 21,000 and Rs 6,000, respectively. 

The 1952 Act regulates the salaries and other allowances of Ministers (including the Prime Minister).  The Act provides for the payment of a monthly sumptuary allowance (for expenditure incurred in entertaining visitors) at different rates to the Prime Minister, Cabinet Ministers, Ministers of State, and Deputy Ministers.  The second Ordinance is reducing the sumptuary allowances of Ministers by 30%. 

Note that the 1952 Act pegs the salaries, and daily and constituency allowances of Ministers to the rates specified for an MP under the 1954 Act.  Similar provisions apply to presiding officers of both Houses (other than Chairman of Rajya Sabha) who are regulated by a different Act.  Therefore, the amendments to the salaries and constituency allowance of MPs will also apply to Ministers, Speaker and Deputy Speaker of Lok Sabha, and Deputy Chairman of Rajya Sabha.  The salary of the Chairman of Rajya Sabha will continue to remain unaffected by the Ordinances (Rs 4 lakh per month). 

Further, since 1993, MPs can also identify projects and sanction certain funds every year for public works in their constituencies under the Members of Parliament and Local Area Development (MPLAD) Scheme, 1993.  Since 2011-12, each MP can spend up to Rs five crore per year under the scheme.  The Union Cabinet has approved the suspension of the MPLAD Scheme for two years.  Table 1 below compares the changes in salaries, allowances and MPLAD entitlements of MPs.

Table 1: Comparison of changes in the salaries, allowances and MPLAD entitlements of MPs

Feature

Previous entitlement (in Rs per month)

New entitlement (in Rs per month)

Changes for the period of

Salary

 1,00,000

70,000

One year

Constituency allowance

70,000

49,000

One year

Office allowance

60,000

54,000

One year

Of which

Office expenses

20,000

14,000

-

 

Secretarial assistance

40,000

40,000

-

Sumptuary allowance of Prime Minister

3,000

2,100

One year

Sumptuary allowance of Cabinet Ministers

2,000

1,400

One year

Sumptuary allowance of Ministers of State

1,000

700

One year

Sumptuary allowance of Deputy Ministers

600

420

One year

Funds under MPLAD Scheme

5 crore

NIL

Two years

Sources: 2020 Ordinances; Members of Parliament (Constituency Allowance) Amendment Rules, 2020; Members of Parliament (Office Expense Allowance) Amendment Rules, 2020; “Cabinet approves Non-operation of MPLADs for two years (2020-21 and 2021-22) for managing COVID 19”, Press Information Bureau, Cabinet, April 6, 2020; PRS.

Effect of amendments on resources to fight COVID-19

The proposed reduction to the salaries and allowances of MPs and Ministers amounts to savings of around Rs 55 crore, and the suspension of the MPLAD scheme is expected to save Rs 7800 crore.  These measures comprise 0.03% and 4.5% respectively, of the estimated amount required to fight the immediate economic distress unleashed due to COVID.  Government has estimated Rs 1.7 lakh crore as the requirement for COVID relief measures under the Pradhan Mantri Garib Kalyan Yojana.  Therefore, such measures to decrease MP salaries and allowances toward increasing the pool of funds for fighting the pandemic are likely to have an almost negligible impact.

How might MP salaries be set

Each MP is required to represent the interests of his constituents, formulate legislation on important national matters, hold the government accountable, and ensure efficient allocation of public resources.  The salary and office allowance of an MP must be assessed in light of the responsibilities expected to be discharged by them. Ensuring MPs are reasonably compensated in terms of salaries allows MPs the means to be able to discharge their duties devotedly, enables them to make decisions in an independent manner and guarantees that citizens from all walks of life can stand a chance of running for Parliament.  The question remains – who decides what is reasonable compensation for MPs. 

Currently, MPs in India decide their own salaries which is passed in the form of an Act of Parliament.  MPs setting their own pay leads to a conflict of interest.  A way to resolve this is by setting up an independent commission to determine that salaries of MPs.  This is a practice followed in certain democracies, such as New Zealand and United Kingdom.  In some other countries, it is pegged to annual wage rate index such as Canada.  Table 2 lists various methods used in some other countries to set salaries for legislators.

Table 2: Methods for setting salaries in different democracies

Countries

Process of determining salary of legislators

India

Parliament decides by passing an Act.

Australia

Remuneration Tribunal decides the salary.  This is revised annually.

New Zealand

Remuneration Authority decides the salary.  This is revised annually.

UK

Independent Parliamentary Standards Authority sets the pay annually as per the changes in average earnings in the public sector given by the Office for National Statistics.

Canada

Member’s pay is adjusted each year to federal government’s annual wage rate index.

Germany

Based on income of a judge of the highest federal court and adjusted annually by the Parliament. 

Sources: Various government websites of respective countries; PRS.

India has experience with appointing independent commissions to examine the emoluments of government officials.  The central government periodically sets up pay commissions to review and recommend changes to the wage structure of government employees with a view to attract talent to government services.  The latest Central Pay Commission was constituted in 2014 to decides the emoluments of central government employees, armed forces personnel, employees of statutory bodies, and officers and employees of the Supreme Court.  Typically, the Commissions have been chaired by a former Judge of the Supreme Court, and have included members representing government service and independent experts.

Suspending  MPLADS

In contrast to these amendments, the suspension of the MPLAD Scheme is a positive step.   

The MPLAD Scheme (MPLADS) was introduced in December 1993 to enable legislators to address local developmental problems for their constituents.  MPLADS allows legislators to earmark up to five crore rupees every year on public works projects in their constituency and recommend these projects to the district authorities for implementation.  Typically, funds under the MPLADS are expended on construction or installation of public facilities (such as school buildings, roads, and electrical facilities), supply of equipment (such as, computers in educational institutions) and sanitation projects. 

In 2010, a five-judge bench of the Supreme Court decided a challenge to the constitutionality of the MPLADS.  It was argued that MPLADS violates the concept of separation of powers between the executive and the legislature since it provides the MP with executive powers on local public works.  The Court ruled that there was no violation of the principle of separation of powers because the role of an MP in this case is recommendatory and the actual work is carried out by the local authorities. 

However, the Scheme has undermined the role of an MP as a national-level policy maker.  The role of an MP is to determine whether government’s budgetary allocations across development priorities are appropriate and once the money is sanctioned by Parliament is it being spent in an efficient and efficacious manner.  However, focus on local administration-level issues, such as development of roads or sanitation projects, obscures the role of the MP in conducting oversight.  Another fall out of having MPs responsible for MPLADS is that it skews the expectations of citizens have of their MPs – holding them accountable for resolving local development issues rather than broader policy and legislative decision making. The suspension of MPLADs will allow for MPs to focus on their role in Parliament.  

The Ordinance route

Through these Ordinances, the executive has amended the salaries and allowances of MPs and Ministers.  In principle, Parliament is discharged with law-making powers.  In exceptional circumstances, the Constitution permits the executive to make laws through Ordinances if Parliament is not in session and immediate action is required.  The two Ordinances will have to be ratified by Parliament within six weeks of its sitting in order to continue to have the force of law.  Interestingly, India is one of the few countries, apart from Bangladesh and Pakistan, that vests the executive with authority to make laws, even if temporary in nature. 

The Ordinance amending the salaries of MPs also raises a question on whether it is appropriate that the executive has the power to amend the emoluments of MPs – how would this affect the independence of the legislature which is tasked with holding the executive accountable.