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
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 Ltd. v. Union of India, court held that the media as the fourth pillar to democracy is invaluable and must, therefore, be protected from interference by the executive, and stated that there should be some question of law in order to apply Section 19 (2) of the Indian Constitution.
In Secy. Ministry of Information and Broadcasting, Govt. of India v. Cricket Assn. of Bengal, the Court widened the scope of the fundamental right of speech and expression to “include the right to educate, inform and entertain for the telecasters/streaming platforms and the right to be educated, informed and entertained for the viewers.” Movies and shows on religious issues are usually done to bring awareness to the viewers, not intentionally hurt their sentiments. In Kartar Singh v. State of Punjab, the Supreme Court warned that “vague laws not only trap the innocent by not providing fair warning, but also impermissibly delegate basic policy matters to policemen and judges for resolution on an ad-hoc and subjective basis, with attendant dangers of arbitrary and discriminatory application”.
In Romesh Thapar v. State of Madras, the court held that if State’s justification for the ban on freedom of speech and expression in the name of “public safety” was too broad, those restrictions would be held unconstitutional and that only narrow restrictions on freedom of expression would be allowed. A writ petition entitled Sanjay Kumar Singh v. Union of India & Ors. is currently pending before the Supreme Court to declare the IT Rules, 2021 unconstitutional. In the case of Bobby Art International v. Om Pal Singh Hoon, the court opined that sometimes violence and obscene scenes such as rape scenes are used to make the audience uncomfortable in a good way, so as to want to condemn those offences, shed light on injustices and social issues.
IT Rules, 2021 clashing with IT Act, 2000
The fact that the IT Rules bring OTT platforms under the purview of the Ministry of Electronics and Information Technology is concerning as they have been known to censor information over the net. Example: 250 accounts had been disabled in India upon request from the Ministry of Electronics and Information Technology (MeitY) under Section 69A of the IT Act, 2000 in the wake of the farmers’ protests.
They also continue to use the confidentiality provision under the blocking rules in an authoritarian manner to deny information on blocking orders, undermining the judgement of Anuradha Bhasin v. Union of India, which stated that “government orders which affect the lives, liberty and property of the citizens must be made available to enable citizens to challenge them” and that “an undefined restriction of internet services would be illegal and that orders for internet shutdown must satisfy the tests of necessity and proportionality.”
The initial position of intermediaries under Section 79 of the Information Technology Act, 2000 is that they are not liable for third-party information which is reposted or made accessible by them as long as they do some basic scrutiny over obvious illegal content. In Sitaram v. Balbir, the court stated that liabilities were only to be imposed on a person who is not a party to an action only if they help disobey the orders of the court. Under Section 79 of the IT (Amendment) Act, 2008, which was a clarifying Act, burden shifted to the complainant to prove liability instead of the intermediaries disproving their liability as per the IT Act, 2000, but the onus has shifted back to the intermediary in the IT Rules, 2021, which has now replaced the IT Rules, 2011.
This shows another way in which the IT Act, 2021 is overarching its powers over the IT Act. Section 69 of the IT Act and Rule 16 of the Information Technology (Procedure and Safeguards for Blocking Access of Information by Public) Rules, 2009 (Blocking Rules) allowed the government to block any information without disclosing to the public that they were doing so. This is also violative of Article 19 (1) (a) of the Indian Constitution.
The fact that the parent statute of the new IT Rules recognised media freedom and took down 66A of IT Act in the Shreya Singhal case is proof that it is in conflict with the Act. Rule 4(d) proviso of the Rules orders intermediaries to completely pull any content upon receipt of an order from the court or the government within merely 36 hours, undermining Section 79 of the IT Act and its “safe harbour” provisions, which is not the same as Section 79 (3) (b) as this is not a matter of contempt or defamation. The IT Act, 2000 does not apply to news and media, which means that the IT Rules’ powers are exceeding that of the parent act. Thus, there is a lack of proper framework and subordinate legislation is not in consonance with the parent Act.
The “Code of Ethics And Procedure And Safeguards In Relation To Digital/Online Media” in the Appendix of the statute applies to “applicable entities” under Rule 7 to include “publishers of news and current affairs content”, “intermediaries which primarily enable the transmission of news and current affairs content”, “publishers of online curated content”, “intermediaries which primarily enable the transmission of online curated content”, which widens ambit further than the IT Act. Rule 13(4) includes “powers of censorship such as apology scrolls, but also blocking of content, without clear legislative backing”, which is a complete misuse of democratic expression.
There were recently incidents like the “Tandav” and “A Suitable Boy” controversy where the filmmakers had to apologize for “hurting religious sentiments” just on a complaint filed by Hindutva groups. Section 295A IPC allows any private citizen to file a complaint without judicial oversight and that the police doesn’t need a warrant to arrest the accused, which is being misused to curtail freedom of press. The case of Ramji Lal Modi v. State of U.P limited the scope of Section 295A in the following ways:
1. It held that “only those acts of insults or attempts to so insult can be penalised under this provision which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class”.
2. The section would only apply to such “aggravated forms of insult to religion, that is calculated to disrupt the public order”.
3. The intention to offend the citizens of India “belonging to a certain faith must both be deliberate and malicious and must be meant for the Indian citizens of that class”.
In this article, we tried to weigh both sides of the debate. The author has concluded that there should a balance between freedom of press and government regulation. An expert committee should be set up which requires plenty of public participation. Media regulation should not equal media control.
Srishti Ohja, “Online Web Platforms Need To Be Regulated By Statutory Body In The Interest Of Public Morality And Decency”: NGO Submits Before Supreme Court, LIVELAW (April 15th, 2021, 8:03 PM), https://www.livelaw.in/top-stories/ott- platforms-supreme-court-netflix-amazon-prime-regulated-by-statutory-body-171562
The Leaflet, Shows on OTT platforms should be screened; some series have pornography, says SC, THE LEAFLET (April 16th, 2021, 7:00 PM), https://www.theleaflet.in/shows-on-ott-platforms-should-be-screened-some-series-have-pornography-says-sc/#
Shambhavi Sinha and Nirmal Mathew, Why the New IT Rules Beg Urgent Judicial Review, THE WIRE (April 22nd, 2021, 5:36 PM), https://thewire.in/government/digital-platforms-intermediary-it-rules-india-freedom-of-speech-internet-control
An Article by Anjali Baskar