4 March 2021 12:09 PM GMT
The Ministry of Electronics and Information Technology (MEITY) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("IT Rules 2021"). The said rules inter alia cover guidelines in relation to intermediary liability and code of ethics to be followed by intermediaries and publishers that process content on digital media. 'Digital media'...
The Ministry of Electronics and Information Technology (MEITY) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("IT Rules 2021"). The said rules inter alia cover guidelines in relation to intermediary liability and code of ethics to be followed by intermediaries and publishers that process content on digital media. 'Digital media' is under the ambit of the Ministry of Information and Broadcasting (MIB), as per a recent amendment to the Allocation of Business Rules, 1961 (Allocation of Business Rules). While the entry 'Matters relating to Cyber Laws, administration of the Information Technology Act. 2000 (21 of 2000) and other IT related laws', which would include Information Technology Act, 2000 (IT Act) and the making of rules thereunder, is under the ambit of the MEITY according to the Allocation of Business Rules.
The Ministry in Charge would be MEITY insofar the subject is intermediary liability as well as, though arguably, code of ethics to be followed by the intermediaries processing content on digital media for that matter, but not the publishers processing content on digital media as that is the subject matter of the MIB, and would not be covered under the IT Act.
However, it can be argued that a head like 'Cyber laws' i.e the law of the internet and matters related therewith is wide enough to include the regulation of publishers processing content on digital media. When there are two or more ministries involved with a subject matter, for example in this case – Cyber laws (which would naturally include cyber crimes) - the Ministry in Charge i.e MEITY would consult the Ministry of Home Affairs etc. (as it deals with Criminal law that is the subject matter of MHA), under the Transaction of Business Rules, 1961 (Transaction of Business Rules), but still it would be MEITY that would be in charge by virtue of Cyber laws being under its ambit.
Moreover, in a 2020 case with similar facts, the Delhi High Court has observed on the subject that "the whole of the Allocation of Business Rules, 1961 have to be read harmoniously and cannot be read in such a manner that [the clauses are] totally ignored". Also observing that such an interpretation which can be given to the Allocation of Business Rules, 1961 should be favoured which does not create any conflict or confrontation between different clauses and without rendering any entry redundant.
The facts in the case were as follows – The entry 'CBI' has been placed under the ambit of the Department of Personnel and Training (DoPT) under the Allocation of Business Rules, however Criminal Law and Criminal Procedure have been placed under the ambit of the Ministry of Home Affairs. Similar to this case, the petitioner argued that since the entries of Criminal Law and procedure (which are wide enough to extend to and include the Central Bureau of Investigation) fall under the ambit of the MHA, the matters relating to the CBI would fall under the ambit of the MHA. This argument was rejected by the Court, as it held that the entry 'CBI' falls directly under the ambit of the DoPT making it the controlling ministry/department, and that a departure from this would create confusion and would render the entry 'CBI' under the DoPT redundant. Similarly, if the overarching entry of 'Cyber laws' is given a liberal interpretation, this would render the entry, under the ambit of MIB, of 'Digital/Online media' (which as an entry is straightforward like that of CBI) redundant. The Court's reasoning is in line with the maxim "Generalia specialibus non derogant", meaning a special provision would exclude the operation of the general provision, which would entail that a special entry would be given precedence over a general entry when there is confusion/conflict while interpreting.
Assuming, arguendo, that regulation of digital media in relation to processing of content on digital media by publishers as an aspect can be covered under the broad terminology of 'cyber laws', digital media still directly falls under the ambit of I and B, and the legislation or the delegated legislation under this hypothetical legislation in the form of rules can only be enacted and made by MIB as it is the nodal Ministry/ Ministry in Charge. It has been conceded by MEITY itself in the IT Rules 2021 that the part regarding 'digital media' is to be "administered by the Ministry of Information and Broadcasting"
The legal maxim of "Quando aliquid prohibetur ex directo, prohibetur et per obliquum" meaning 'What cannot be done directly, cannot be done indirectly' applies here. It is a two way street – MEITY cannot legislate upon digital media as a delegate or otherwise since according to the Allocation of Business Rules, it is the job of the MIB to introduce Bills, bring out rules under such Bills made into Acts etc. on the subject. On the other hand, the MIB or its officers cannot under the IT Act (which is a Cyber law) act as a delegate and administer a part of it. If cannot be done directly (as it is prohibited for the MIB to legislate under the IT Act, since the Allocation of Business rules are mandatory, the non observance of which renders the concerned notification void), it also cannot be done indirectly (through a notification of the MEITY, signed by one of its officers, issued under the IT Act – that lets the MIB administer a part of it).
If the MIB were to seriously regulate digital media, it would have to be through a law passed by the Parliament, while the MIB would have to consult MEITY etc., but it would still be the MIB that would be in charge. By not passing a law, the Parliament is abdicating its legislative duties similar to what happened in the case of regulation of Aarogya Setu, where a 'Protocol' was issued instead of an Ordinance or a legislation.
It is also to be noted that the IT Act does not seek to regulate 'digital media'. It does not even define 'digital media', for that matter. It has been observed by the Supreme Court in various judgments that if a rule goes beyond the rule making power conferred by the statute, the same has to be declared ultra vires. The basic test is to determine and consider the source of power which is relatable to the rule. Similarly, a rule must be in accord with the parent statute as it cannot travel beyond it. Before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void. It has been ruled that it is a well recognised principle that the conferment of rule making power by an Act does not enable the rule making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto.
A Constitution Bench has also held that the statutory bodies cannot use the power to make rules and regulations to enlarge the powers beyond the scope intended by the legislature. Rules and regulations made by reason of the specific power conferred by the statute to make rules and regulations establish the pattern of conduct to be followed.
Therefore, the said rules go beyond the scope and purview of the IT Act, and travel beyond the parent Act. Thus, the rules are ultra vires the IT Act & are liable to be challenged in Court on both the grounds.
Views are personel