Defending the Constitutionality of Rule 9 of the Information Technology Rules, 2021

Chytanya S. Agarwal*

INTRODUCTION

In February 2021, the Ministry of Electronics and Information Technology (‘MeitY’) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘IT Rules’ or ‘the Rules’). One of the contentious provisions contained therein is Rule 9 which, inter alia, provides for adherence to a Code of Ethics by the publishers, and a 3-tier grievance redressal mechanism that includes Self-Regulatory Bodies (‘SRBs’). Soon after the Rules’ notification, in Agij Promotion of Nineteenonea Media (P) Ltd. v. Union of India (¶30-32), the Bombay High Court (‘HC’) stayed Rule 9 of the Rules on the grounds of excessive delegation and violation of Article 19(1)(a).

Similar rulings came from other High Courts, prompting the Central Government to request for the bunching of challenges to the Rules in Justice for Rights Foundation v. Union of India, currently pending before the Supreme Court (‘SC’). However, the SC rejected the Centre’s plea to bunch and transfer the petitions before the HCs. In another order, Madras HC had opined that Bombay HC’s stay order had a pan-India effect.

This year, the Rules were amended to include online gaming intermediaries, further widening the Rules’ ambit despite the stay order, and to prohibit “fake or false or misleading” information. The 2023 amendments, currently under challenge before the Bombay HC, are not the focus of this essay. This article’s scope is restricted to a critical analysis of the Bombay HC’s order in Agij Promotion.

This article argues in favour of the constitutionality of Rule 9 of the IT Rules by critiquing the reasons for the stay order in Agij Promotion. To make this argument, firstly, through a perusal of case laws, this article concludes that the test for excessive delegation and the doctrine of ultra vires require courts to undertake a liberal construction of the statute – an approach virtually absent in Bombay HC’s reasoning. So, by undertaking a liberal construction of the Information Technology Act, 2000 (‘IT Act’), this article argues that the IT Rules framed thereunder do not suffer from the vice of excessive delegation and the doctrine of ultra vires. Secondly, this article critiques Agij Promotion’s unprincipled application of the “chilling effect doctrine” by showing the lack of grounding of the test in Indian jurisprudence. This article proposes that the court could have better navigated the Article 19(1)(a) challenge by applying the 4-pronged test of proportionality laid down in Anuradha Bhasin v. Union of India.

IT RULES: ULTRA VIRES THE IT ACT?

Article 245 of the Constitution, which confers legislative powers, does not forbid delegated legislation by the executive. Per Delhi Laws Act, In Re, such delegated legislation is constitutional, provided that the legislature does not abdicate its “essential legislative function” of determining the “legislative policy” to guide the executive. In Harishankar Bagla v. State of M.P., to discern the legislative policy in the statute in question, the SC inquired not just into the provision conferring rule-making power, but also the preamble and the entire body of sections. Even the scheme and the very subject-matter of the statute can be construed as providing guidance according to Vivek Narayan Sharma (¶205). Thus, the standard to be satisfied for delegated legislation by the executive is quite liberal, making it a rarity for courts to strike down delegated legislation on account of excessive delegation.

Delegated legislation is also tested on the touchstone of the doctrine of ultra vires. Put simply, delegated legislation cannot widen nor limit the ambit of the parent Act in the garb of delegated rule-making. As held in Agricultural Market Committee v. Shalimar Chemical Works (¶26-28), the executive must confine itself to the “mode of implementation of the policy and purpose” of the parent Act. However, for determining the “policy and purpose” of the parent Act, courts have adopted a liberal approach. Illustratively, in Kerala State Electricity Board v. Thomas Joseph (¶80), the SC ruled that the delegated legislation’s conformity to the parent Act must be tested in light of the “nature, object and scheme” of the parent Act, as also the subject-matters over which power as has been delegated. In fact, Kerala State Electricity Board (¶83-84) even inquired into the legislative intent for determining the purpose of the parent Act. To summarise, the standards for appraising the validity of delegated legislation are quite liberal, enabling courts to travel beyond the express provisions of the statute and consider the scheme, purpose, legislative intent, and even the subject-matter of the statute.

Agij Promotion (¶21-25) finds Rule 9 as an instance of undelegated exercise of power that is ultra vires the provision conferring rule-making powers, viz., clauses (z) and (zg) of Section 87(2) the IT Act. The clauses have been reproduced hereunder:

“87. Power of the Central Government to make rules.–

(1) The Central Government may, by notification in the Official Gazette and in the Electronic Gazette, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:–

(z) the procedures and safeguards for blocking for access by the public under sub-section (3) of section 69 A;

(zg) the guidelines to be observed by the intermediaries under sub-section (2) of section 79;”

The Bombay HC’s reasoning is two-pronged. Firstly, the Code of Ethics (annexed to the Rules) imports provisions from other statutes for content moderation, thereby going beyond the express content-related restrictions under Section 69A. Secondly, Section 87, the power-conferring provision, itself does not contemplate such restrictions.

In its reasoning, however, Agij Promotion only considers the express provisions of the IT Act and omits any inquiry into the overall scheme and subject-matter of the IT Act. Thus, the HC’s reasoning flies in the face of the liberal nature of the tests concerning the validity of delegated legislation. If one considers Section 87(2), under which the IT Rules are promulgated, only clause (z) provides for rules pertaining to Section 69A. In contrast, clause (zg), read with Section 79(2) is more broadly worded, enabling the Central Government to frame “such other guidelines” whose compliance is necessary for safe-harbour immunity. Applying Agricultural Marketing Committee and Kerala State Electricity Board, it can be concluded that the content of these “other guidelines” can be guided by the larger legislative policy and purpose of the IT Act, and is not just restricted to Section 69A.

Even if we undertake a textual interpretation, the guidelines envisaged under these clauses are distinct because there are different consequences of their non-compliance – viz., whereas non-compliance with Section 69A is a punishable offence, non-compliance with Section 79 only strips the intermediary of safe-harbour immunity. Therefore, the nature and content of delegated legislation contemplated under clauses (z) and (zg) of Section 87(2) are unrelated. So, the Rules framed under clause (zg) cannot be limited to the express restrictions of Section 69A. Moreover, under Agricultural Marketing Committee’s “policy and purpose” test, the Code of Ethics can definitely be related to other legislations having overlapping policy and purpose.

APPLICABILITY OF "CHILLING EFFECT" DOCTRINE

The Article 19(1)(a) challenge in Agij Promotion was heavily reliant on Shreya Singhal v. Union of India’s argument of the “chilling effect” that the IT Rules might have on the free speech of publishers (¶29). “Chilling effect,” per Schauer, refers to the “potential deterrent effect” of a “vague or overbroad statute” on a Constitutionally protected right, even when the statute in question is not specifically directed at it. The “chilling effect” doctrine was first applied to free speech jurisprudence in Gibson v. Florida, and has been one of the most oft-quoted arguments in American case laws on the First Amendment. At the same time, it must be noted that this doctrine is relatively nascent in India. Early judgements such as Chintaman Rao v. State of M.P., and State of Bombay v. F.N. Balsara have observed that overbroad and vague statutes that go beyond reasonable restrictions under Article 19(2) are void.

But it may be noted that the doctrine of chilling effect is not equivalent to or limited to overbreadth and vagueness, although they may be causes of chilling effect. In (¶90), the SC struck down Section 66A of the IT Act on the ground that its overbroad and vague drafting can have potentially chilling effects. However, it must be noted that Shreya Singhal’s ratio was tempered by the specific facts of that case. Shreya Singhal’s observations must be seen in context of Section 66A, which punished electronic communications that are “grossly offensive or has menacing character” or causes “annoyance, inconvenience, …enmity, hatred or ill will.” A brief look at the text of the Section shows its extremely vague terminology – it was not just prone to abuse; rather, its drafting made its abuse writ large. In short, there was patent overbreadth involved. Thus, in Shreya Singhal, the chilling effect argument was coupled with the overbreadth of the statutory provision and the restriction of speech based on a ground not available under Article 19(2). No such enquiry into overbreadth of Rule 9 of the IT Rules was undertaken in Agij Promotion. This distinguishes its application of the chilling effect doctrine from Shreya Singhal, and makes its reliance on Shreya Singhal inapt due to different factual matrices.

In the application of the “chilling effect” doctrine, Agij Promotion fails to account for two factors: firstly, this doctrine lacks foothold in Indian jurisprudence, and, secondly, there are no settled standards for its application. As observed in Anuradha Bhasin (¶158), an argument solely based on chilling effect would be “purely speculative” if no supporting evidence is adduced. Anuradha Bhasin also left unanswered the standard of evidence required to prove a measure’s chilling impact on free speech. This has relevance because Anuradha Bhasin was decided by a 3-judge bench, having higher bench strength than the Division Bench verdict in Shreya Singhal. On similar lines, in Manohar Lal Sharma, the SC observed that newspaper reports alone were insufficient to substantiate the chilling effect (¶42-43). Per Amish Devgan (¶38), despite the chilling effect, speech can be reasonably restricted under Article 19(2) grounds. Even if we consider American jurisprudence, while the chilling effect doctrine may be a good argument, there exists no empirical proof to show the existence of the chilling effect. This further casts doubts on the viability of any test on chilling effect.

In light of this, Agij Promotion’s application of the chilling speech doctrine, and that too without any supporting evidence, seems to have a flimsy grounding. Moreover, Shreya Singhal, which was relied on by the Bombay HC can be distinguished since, in Agij Promotion’s reasoning, there is no reference to any textual overbreadth or any restriction based on a ground not enunciated in Article 19(2). If we see the text of the IT Rules prior to the recent Amendments, drastic measures such as content deletion are only restricted to the standards of Section 69A [For instance, see Rules 12(4)(e), 14(5)(f), and 16]. The remaining due diligence guidelines under Section 79 do not pertain to content take downs under Section 69A. A more legally tenable approach would have been to apply the 4-pronged proportionality-based test laid down in Anuradha Bhasin (¶70). A preliminary inquiry under this test would be as follows:

1. Legitimate aim: Are the grounds for restricting speech under the IT Rules traceable to grounds under Article 19(2)? This is because, as held by the SC in Kaushal Kishor v. State of U.P., for any restriction of speech under Article 19(1)(a) to be valid, it must be based on a ground specified under Article 19(2) and the grounds specified therein are exhaustive

2. Rational nexus: Does the measure restricting free speech have a rational and proximate nexus with the legitimate aim sought to be achieved.

3. Necessity: Is the regulatory framework under the IT Rules the least restrictive and equally/substantially effective among all feasible alternatives? As observed in Indraprastha People v. Union of India, self-regulation in media ensures compliance with codes of conduct and simultaneously preserves its independence from partisan governmental intervention. Thus, arguably, it is prima facie efficacious yet less rights-invasive.

4. Balancing test: Is the marginal gain to society commensurate to (or greater than) the marginal loss suffered by the publisher whose right to free speech was restricted?

However, a detailed analysis of the test’s application is outside this essay’s scope, partially due to the lack of clear and coherent evidentiary standards required for its application.

CONCLUSION

In conclusion, an analysis of the constitutionality of Rule 9 of the IT Rules, 2021 reveals that the arguments against its validity lack strong foundations. The concerns of excessive delegation and the “chilling effect” doctrine, while raised in Agij Promotion, are not well-supported when juxtaposed against existing jurisprudence. The absence of clear standards for applying the “chilling effect” doctrine weakens its impact as an argument. Furthermore, a closer look at the legislative intent and purpose of the IT Act suggests that Rule 9 falls within the boundaries of valid rule-making authority.

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*Chytanya S. Agarwal is a 3rd-year law student, pursuing B.A., LL.B. (Hons.) at the National Law School of India University (NLSIU), Bangalore

The views expressed above are the authors' alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.