Whether the IT Rules, 2021 are Unconstitutional: An Analysis

Introduction- Importance of licensing and regulation

Both the film/TV industry and the print media industry enjoy the same status and right so far as constitutional freedom relating to expression of ideas and spreading of ideas and messages are concerned. Lockdowns due to the pandemic have resulted in people demanding more content on OTT platforms, giving the industry a boom in profits. There is a need to regulate this sort of content. Till now, there was no law or autonomous body governing digital content in India, but now proper ratings are awarded. Ministry of Information and Broadcasting ensures that OTT platforms retain autonomy as they are not required to obtain any licence from the ministry.

The Internet and Mobile Association of India came up with a self-regulatory framework in 2019, to finally bring OTT platforms under some kind of regulation. It prohibited content that promoted child pornography, disrespected the national emblem or flag, any outrageous content hurting sentiments or promoting terrorism. But truly, it proved to be a failure as there was no defined regulatory body and codes. In fact, it did not classify the content that was prohibited. They allow OTT platforms to self-regulate, thereby giving them freedom to regulate their own content. As per Schedule III of the IT Rules, 2021, the OTT platforms must classify their online content into 5 categories, based on the age- U (Universal), U/A 7+, U/A 13+, U/A 16+ and finally A (Adult).

The streaming platforms are advised to implement a parental lock feature on the content classified under U/A 13+ and higher. They must also form a secure framework for the correct verification of the age, especially for content classified under A (Adult). The content creators shall display the classification rating for each content. They must also come up with a content descriptor that will inform the user about the nature of the content. It is all-important so that a user can make an informed decision of whether to consume content or not. This is very important as it helps parents ensure that their child does not get exposed to exploitative or explicit content at a very young age. The 3-tier structure is an efficient way to regulate such content.

Increased Accountability on Intermediaries

Rule 4 of the IT Rules, 2021 increases accountability of intermediaries (here, streaming services like Amazon Prime etc.), which proves to be advantageous as it holds them accountable for the content they display to the public. Rule 4 states that no information derogatory to the rules of the society or unethical or defamatory to the general public or misleads the general public should be published by the intermediaries. The intermediaries have to notify the users that in case such an unethical information is transmitted, then it would call for either termination of their account or removal of the information that is not in conformity with the user agreement or privacy policy.

The intermediary has to exercise due diligence wherein if it comes to its notice that any information that is transmitted on its portals, then the intermediaries are to expeditiously remove such information as mentioned under Section 79(3) of Information Technology Rules, 2000 as per Rule 4(1) (d). The intermediary is under an obligation to store the specific information for a period of 180 for the investigation purposes as per Rule 4 (1) (g). Furthermore, an intermediary has to remove an information within twenty-four hours on the complaint of a person which portrays such a person in bad light or exposes their private parts or shows such a person in a sexual act or nudity.

The Supreme Court of India has also found that OTT platforms contain that sort of gratuitous obscenity, to the extent of even pornographic material. In regard to the aforementioned burden, a complaint can be filed by an individual or any person on his/her behalf.

Rule 5 asks for a monthly compliance report in consultation with Indian resident officials like the Chief Compliance Officer, a Nodal Contact Person and a Resident Grievance Officer. Identifying the first originator of information also holds these third-party platforms more accountable the Section 69 of the Information Technology Act, 2000, and makes the media report more accurate information by using credible sources.

Application of Article 19 (2)- Protecting public order, morality and decency

Rule 4 of the IT Rules, 2021 specially talks about protecting unity, sovereignty, public order etc, It is pertinent to note that the IT Rules, 2021 does satisfy the test of reasonableness as laid down in Madras v. V.G. Row, as it seeks to regulate and not control digital content. According to the proposition, “violence had erupted certain aspects were objected by a certain section of the society, for vulgarity and mocking religious sentiments leading to instances of violence against the individuals associated with those production houses”.

There is a need to curb this sort of instigation and violence. The harms of a communal riot are much larger than the OTT platform’s need to showcase shows which have a guise of social awareness and liberalism, but actually hurt religious sentiments. In a country with so many religions and diversity, India cannot afford to give citizens the absolute right to freedom of speech and expression.

There has been rampant misuse of digital media for the purpose of committing unlawful offences, violating Article 21 of the Indian Constitution and certain provisions of the Indecent Representation of Women (Prohibition) Act, 1986 (“IRWA, 1986”). An NGO recently sought for a regulatory body for OTT platforms on similar grounds of violating the IPC, 1860, IT Act, 2000, IRWA, 1986, Section 295A for shows like Tandav, A Suitable Body, Mirzapur etc. In Virendra v. State of Punjab, the court held that censorship of the press is not specially prohibited by any provision of the Constitution.

In K. A. Abbas v. Union of India, Justice Hidayatullah stated that censorship of films including pre-censorship was constitutionally valid in India as it was a reasonable restriction within the ambit of Article 19(2), in response to the petitioner challenging the validity of censorship as violative of his fundamental right of speech and expression.

The Supreme Court however observed that pre-censorship of films under the Cinematograph Act was justified under Article 19(2) on the ground that films have to be treated separately from other forms of art and expression because a motion picture had the chance to emotionally influence the public. Article 19 (2) of the Indian Constitution lays down reasonable restrictions on freedom of speech and expression with respect to “public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence” etc. In Hindustan Times v. High Court of Allahabad, the court stated that with the power of freedom of speech and expression, there comes a sense of responsibility attached to the media to provide verified information.

The court in this case also mention that the impact of media is far-reaching as it reaches not only the people physically but also influences them mentally. It creates opinions and broadcasts different points of view. In Nachiketa Walhekar v. Central Board of Film Certification & Anr., the court stated that “a film is a creation of art and an artist has his own freedom to express himself in a manner which is not prohibited by law”. The key phrase here is “not prohibited by law”. If a show on an OTT platform showed vulgar content as per Rule 4(1) (p) of the IT Rules, 2021, the intermediary, i.e. the OTT platform such as Hotstar or Amazon, provides an excellent way of regulating the same.

Violation of various constitutional provisions

Article 13 of the Constitution states that if a law is in violation of fundamental rights or is inconsistent with the constitution, it is void in nature. Article 14 talks about right to equality and equal protection before the law. Article 19 talks about the right to freedom of speech and expression. In Maneka Gandhi v. Union of India, the court stated that Articles 14, 19, and 21 are not mutually exclusive. This means that “a law prescribing a procedure for depriving a person of 'personal liberty' has not only to stand the test of Article 21 but also Article 14 and Article 19, but it must stand the test of Article 19 and Article 14 of the Constitution as well”.

Under Part III of the Indian Constitution, fundamental rights are also enforceable before the court of law. Article 14 also talks about reasonable classification under the law. The case of State of West Bengal v. Anwar Ali Sarkar laid down 2 tests of classification: To pass the test of permissible classification two conditions must be fulfilled: The 2nd condition laid down was that: “The differentia must have a rational relation to the object sought to be achieved by the Act”, which has not been fulfilled. The legislature cannot pass any law which has no rational basis for discriminating.

The test of reasonableness states that no law should be arbitrary, evasive and artificial in nature. It is humbly contended that when the test of reasonableness is proved, classification is allowed and constitutional as long as it’s reasonable. In the case of Bachan Singh v. State of Punjab, Justice PN Bhagwati had observed that “rule of law permeated the entire fabric of the Indian Constitution and it excludes arbitrariness.” He had stated that “where there is arbitrariness, there is a denial of rule of law”. So, every action of the State should be free from arbitrariness otherwise the court has the authority to strike the act as unconstitutional.

It is also violative of Article 19 (1) and specifically, Article 19 (1) (g) of the Indian Constitution. Article 19 (1) (g) talks about the right to practice any profession, trade or business, as it curtails the ability of journalists and filmmakers to do their jobs. Here, the new IT Rules set up restricts media by stating that "unlawful content" to "any content that is defamatory". It is humbly submitted that the rules are ambiguous, broad and have no strict definition as to what is unlawful. Rule 9 (3) laid down a three-level framework, namely 1. Self-regulation by the applicable entity, 2. Self-regulation by the self-regulating bodies of the applicable entities, 3. Oversight mechanism by the Central Government. But these 3 further undermine Article 19 (1) as they are vague and too wide.

In the case of Viacom 18 Media (P) Ltd. v. Union of India, it was stated that “if intellectual prowess and natural or cultivated power of creation is interfered without the permissible facet of law, the concept of creativity paves the path of extinction; and when creativity dies, values of civilization corrode.” By that logic, any content can be placed within the ambit of being unlawful. In the case of Brij Bhusan v. State of Delhi, it was held that imposition of pre-censorship on publication unless justified under Article 19(2).

The IT Rules, 2021 violates Article 19(1)(a) and here, the censorship is not justified as it is arbitrary and unreasonably restrictive. In the cases of Sakal Papers Ltd. & Ors. v. The Union of India and Indian Express Newspapers (Bombay) Private L