Unfettered Powers To Executive' : Journalist Nikhil Wagle Challenges IT Rules in Bombay High Court

Wagle has alleged that the Rules provide "unfettered powers to the executive to direct the intermediaries to delete or modify or block the relevant content and information generated, transmitted, received, stored or hosted in their computer resource for public access."

Therefore, the rules to be declared arbitrary, illegal, irrational, unreasonable and violative of a citizen's fundamental rights under Article 14, Articles 19(1)(a), 19(1)(g) and Article 21 of the Constitution of India, and consequently to be struck down, he has said.

In the petition filed through advocate Abhay Nevgi, Wagle also sought that the rules be declared ultra vires of the provisions of the Information Technology Act 2000. In the interim, he seeks a stay on the rules.

Government Surveillance

The plea states that the provision to trace the originator when communication is end- to- end encrypted is not possible in the present time. And any process to identify an originator would severely undermine the privacy of billions of people who communicate digitally with full trust and faith.

"Breaking the concept of end-to-end encryption will affect fundamental rights, and innocent people relying on the internet will be exposed to multiple unanticipated risks. "Traceability" is intended to push Platforms to identify the originator of the message. If the concept of the originator of the message is implemented, same will amount to mass surveying, and such mass surveying will compromise the fundamental right of privacy."

Compliance Officers get Quasi-Judicial Powers

The petition states that Rule 7 gives excessive powers to enforcement agencies to take action against intermediaries under the Indian Penal Code and not just section 79(1) of the IT Act.

"This will have serious repercussions because even in cases of defamation / hurt religious sentiments, etc., criminal proceedings will be initiated. It gives the Compliance Officers with quasi-judicial powers of deciding what is/is not defamatory."

No Provision For Appeal

The restriction imposed under Part II of the Rules -'Due Diligence by Intermediaries and Grievance Redressal Mechanism,' is "excessive" against the author or creator of disputed information/content under Rule 3(2) as there is no provision for appeal against the decision of an intermediary of removal or disabling of access to such content.

Difficulty to be exempted from liability

The plea states that Part II of the Rules makes it very difficult for intermediaries to seek protection or exemption from liability under the IT Act.

It includes allowing government agencies to trace the origin of cyber-security incidents, mandatorily taking down content that is prima facie partial nudity within 24 hours of a complaint, using tools to proactively identify and censor any act depicting rape, child sexual abuse or conduct etc.

The plea cites the Supreme Court judgement of K.S. Puttaswamy V/s Union of India, (2017) 10 SCC 1. which lays down the test of (i) legality; (ii) necessity; and (iii) proportionality used to ensure a rational between objects and the means adopted to achieve them. It says that Rule 4(2) infringes Article 21, not satisfying the three-tier test.

Under the Garb of Curbing Child Pornography

The petitioner claimed that the Adhoc Committee of the Rajya Sabha meant to study the alarming issue of pornography on social media and its effect on children had recommended that internet service providers (ISPs) shall proactively monitor and take down Child Sexual Abuse Material (CSAM) and suggested modifying the IT rules.

"These suggestions were limited only in respect of child pornography on social media, but the Impugned Rules, under the garb of such recommendations, covers every content available on internet," the plea states.

Twitter

He cites the Ministry of Electronics and Information Technology's recent actions against micro-blogging site Twitter - directing them to shut down the accounts of various users regarding the farmer protests, by invoking powers under section 69A of IT Act – to say that it has serious consequences on the fundamental right of free speech and expression.

The rules illegally bring digital news media or news aggregators under the purview of the Press Council of India Act, 1978 and the Cable Television Networks (Regulation) Act, 1995 sans an amendment, which is also an unconstitutional exercise under Section 87 of the IT Act.

Imp Questions of Law

1. Whether the Rules violate of Fundamental Rights of the Citizens, especially Right of Privacy as held by Hon'ble Supreme Court of India in the matter of K.S. Puttaswamy V/s Union of India, (2017) 10 SCC 1
2. Whether the Impugned Rules are against the object and purpose of the Parent Act itself i.e. the IT Act?
3. Whether in issuing the Impugned Rules, the concerned delegatee has exceeded its jurisdiction under Sections 87(1), 87(2)(z) and 87(2)(zg) of the IT Act?
4. Whether in issuing the Impugned Rules, the Respondent has exceeded its rule making powers not only under Section 87 of the IT Act but also under Constitution?

Lat month, Madras HC had admitted musician TM Krishna's petition challenging IT Rules. In March, online news media 'The Wire' approached the Delhi High Court, followed by 'The Quint'. The Kerala High Court has granted interim protection from coercive action under Part III of the Rules to 'LiveLaw' in a petition filed by it against the Rules. Kannada news portal 'Pratidhwani' has approached the Karnataka High Court against the Rules.  The Calcutta High Court has also issued notice on a similar petition.

Recently, WhatsApp moved the Delhi High Court challenging the 'traceability clause' under Part II of the Rules. Later, Google also approached the Delhi High Court against the Rules.