The proposed Grievance Appellate Committee will lead to bias and violation of the principles of natural justice.
On June 6, the Union Government proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘IT Rules’). As per the press release by the Union Ministry of Electronics and Information Technology, these amendments are proposed to steer through the challenges and gaps that exist in the IT Rules.
What are the IT Rules?
The IT Rules of 2021 were brought in to bring a slew of reforms by replacing the Information Technology (Intermediaries Guidelines) Rules, 2011. It imposed various compliance regulations on social media intermediaries, from appointing a Grievance Redressal Officer to tracing the first originator of information as and when required by a judicial authority or by any competent authority defined in Rule 2(d) of the Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009.
It drew various criticisms from experts and social media intermediaries. They reasoned that the rules would break the end-to-end encryption system since it mandated finding the first originator of a text. Also, the Ethics Code establishes an Oversight Committee, which consists of a majority of persons from the executive branch of the State. This is problematic since the Executive will now play the role of the Judiciary, which can lead to arbitrariness and favouritism in the decision-making process.
The IT Rules of 2021 drew various criticisms from experts and social media intermediaries. They reasoned that the rules would break the end-to-end encryption system, since it mandated finding the first originator of a text. Also, the Ethics Code establishes an Oversight Committee, which consists of a majority of persons from the executive branch of the State.
What are the changes brought in by the draft amendment to the IT Rules?
It requires the setting up of an additional committee (a Grievance Appellate Committee) which will review the appeal against the order of the Grievance Redressal Officer. Rule 3(3) of the proposed amendment states that the chairperson and members of the committee shall be appointed by the Union Government. This aspect of the proposal is problematic on the ground that it would lead to arbitrariness in the decision-making process of the committee, and may also lead to favouritism. The committee will act as the final arbiter on the complaints made against any content that is present on Intermediaries and having a body that is filled with people appointed by the Executive branch can lead to bias in the order and violation of the principles of natural justice.
Rule 3(2) requires the intermediaries to respect the constitutional rights of the citizens. This is an unprecedented move by the Government since this is essentially akin to enforcing fundamental rights against private entities. This may lead to a flurry of petitions against intermediaries in the already overburdened courts of India.
The Rules establishing the Union Government as the final arbiter in complaints against content on social media and OTT platforms directly or indirectly goes against the ethos of our Constitution.
The establishment of the Grievance Appellate Committee by the government is on similar lines as the three-tier Grievance Redressal Mechanism which was proposed in the IT Rules of 2021, before being stayed by the Bombay High Court last year. The third or the final tier in the above-mentioned mechanism was an inter-ministerial committee consisting of people majorly from the executive branch. There were also concerns flagged regarding the government being the final arbiter in deciding the validity of the content on social media or on over-the-top platforms.
The Draft proposals also reduce the time given to the Grievance Officer to act on the complaints made by users. In certain circumstances, it requires that the Grievance Officer must address the complaint within 72 hours of the receipt of the complaint. The stayed relevant provision of the IT Rules of 2021 currently provide 15 days to act on the complaints made to the Grievance Officer.
What are the concerns?
The IT Rules, 2021 are already under challenge before the Supreme Court in various petitions. These Rules invited flak from critics and observers on various grounds. As discussed above, some of their provisions were partially stayed by the Bombay High Court; the Kerala and Madras high courts, too, had stayed any coercive action by the Union Government under these Rules last year.
The Rules establishing the Union Government as the final arbiter in complaints against content on social media and OTT platforms directly or indirectly goes against the ethos of our Constitution. It goes directly against the fundamental right to free speech, since any opinion (or majority of them) which will be critical of the Government might be taken down by the committee appointed by the government. This will essentially make the government a judge in its own case. It is akin to the violation of one of the principles of natural justice: Nemo judex in causa sua.
Against this backdrop, bringing this amendment which is reminiscent of the stayed Rules, is an unfortunate step by the government. The proposed draft amendments could lead to censorship by the government. Content posted on social media platforms at times includes criticism of the establishment, which might not be very pleasing for the elected government. This amendment provides the government with the authority to adjudicate complaints made against the decision of the Grievance Officer, which is open to misuse. The Government has to make amendments to the present mechanism, where the independence in decision-making is in absentia.
In India, the Supreme Court acts as the ‘sentinel qui vive’ by protecting our fundamental rights. It is imperative that the Supreme Court, which is entrusted with the quintessential duty to protect the fundamental rights of the citizens, intervenes and protects the fundamental rights of the citizens.
Aarya Parihar is an undergraduate student of law at Dr. Ram Manohar Lohiya National Law University, Lucknow.