Constitutionality of Grievance Appellate Committee under Information Technology Rules, 2021

This article presents a discussion on the internet intermediary liability and the constitutionality of the grievance appellate committee, which is a redressal mechanism provided under the IT(IGDMEC)Rules, 2021 in light of the recent case of X Corp. v. Rajat Sharma, wherein the author argues that the GAC mentioned above and the Rule 3 of the aforementioned Rules of 2021 does not stand the test of constitutionality and the grounds are analyzed in depth for the same.

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In the present times as today wherein every citizen is a digital citizen or digital ‘nagrik‘ the system of accountability, redressal and operations will also have to be digitalized. In an attempt to do so, under the ambit of Information Technology Act, 2000 (herein the Act), the law for holding intermediaries liable has been introduced under Section 79, and the criteria and conditions to hold them liable has been prescribed under the Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (herein the IT Rules, 2021). When we talk about “digital intermediaries” we include every OTT platform, shopping websites, marketing websites, publication websites and blogs, and others as the contemporary evolution will lay bare.

But, does every rule made in furtherance of the provisions of the parent act; actually stands the test of constitutionality? Which brings the focus to the provision in question, that is of the Grievance Appellate Committee or the GAC, which is an appellate body as per Rule 3 of the IT Rules, 2021 with whom any internet user aggrieved with the internet intermediaries’ redressal mechanism can make an appeal against such intermediaries. Example: Any user or viewer, aggrieved by any episode of any series broadcasted by Hotstar, which has hurt his sentiments in any prudent manner, may file a complaint against the same with Hotstar or the Star Channels. If such grievance is not solves, then the appeal against the same can be taken up to the GAC. This is only an online redressal system, made for the digital users (the users who avail the service of the intermediaries) of all types of OTT platforms (Netflix, Prime, Hulu) and intermediaries (social media, shop- ping websites, etc). These fall under the larger umbrella of network operators in the cyberspace.  The legislative intent of the IT Rules, 2021 is to put a set of bridle straps to only OTT platforms and media publication websites. Therefore, the constitutionality of the GAC shall be looked vis-à-vis these two effete, different sides of the same coin.

The constitutionality of the GAC Mechanism herein is checked on the following basis:

1. Consistency with the parent act, that is Information Technology Act, 2000.
2. Consistency with the Fundamental Rights (herein Article 19 (1) a).

At present, there are three levels of GAC, notified on 29 January, 2023,

Level 1: Self-Regulation by the publisher

Level 2: Creation of Self-Regulatory Body

Level 3: Oversight by the Government

In Level 1, that is self- regulation, an online intermediary, the publisher must set up a grievance redressal officer who will handle any disputes pertaining to content shared on the platform, such as deepfakes, fabricated data, or fake news. This level serves as a precursor to existing legislation and is the simplest approach to avoid severe government penalties or outright prohibitions.

Level 2 is where self regulatory bodies are created or the guidelines of the ones already in existence like DMCRC for OTT platforms, COMI for news, etc. are followed for the corresponding entity. This level is in furtherance of level 1 where grievances can be raised on the violations of these guidelines as well and this helps in monitoring and regulating the content furnished on the platform.

Level 3, the oversight by the Government is where the urgent recommendations are made to the Ministry of Broadcasting and Information for making interim orders, specifically for taking down contents, or any publications which may threaten the internal peace, security, stability of the country, or is offensive and hate speech towards any religious feelings and beliefs, as to prevent any religious rites in the country and to uphold the harmony. But as seen in the OTTS, social media platforms, and other intermediaries including blogs of free and autonomous bodies as well as news channels branches or the print media, such restrictions are used entirely antithetically, that is, to restrict the free expression of opinions and to entirely block any criticism of any authoritative body. Free speech and expression of the media houses and persons is one of the major pillars upon which the Indian Democracy stands, which is now been systematically eroded.

The provisions of Rule 3 over cedes the provisions of the parent act’s corresponding provisions on the same, that is, regarding due diligence under Section 79 and Section 79(2) wherein the conditions are laid down for observing due diligence. The power of the government to prescribe such conditions on the due diligence specifically, is under Section 89 (2) (zg), which is a very limited power, but the rules has prescribed further additional requirements of due diligence and has also divided the intermediaries into two types, which has no mention in the parent act. Such imposition of extra due diligence criteria and requirements through the rules and also through the division in the types of intermediaries, intends to impose conditions which will make any free speech and expression strenuous. Without fulfillment of such requirements, both the types of intermediaries, including Social Media Intermediary (Rule 2(w)) and Significant Social Media Intermediary (Rule 2(v)) will cause them to face legal repercussions as per the IT Act as well as IPC’s relevant provisions.

Now, this aforementioned segregation is not being provided for in Section 2(w) which defines intermediaries, read with Section 79 and Section 89 (2) (zg), is also not provided for in the act. Therefore, the rules herein go beyond the provisions of the parent act, making the entire rule 3A unconstitutional, following the Adani Gas Limited judgement, and H. Ganesh Kamath case, wherein it was held and affirmed clearly that any provision which does not confers with and exceeds the provisions of the parent act, is ultra-vires.

Taking a look on the composition of the 3 GAC levels as mentioned above, at present none of the level is composed including any judicial authority. It includes retired naval officers, retired IPS, retired railway officers and banking heads amongst others, as per the press release of 23 January, 2023. Herein, the retired executive officials are being assigned the judicial tasks, which requires judicial scrutiny as well as an expert opinion that is beyond the scope of the powers granted under the IT Act, 2000 as well as beyond the functions of the executive. It is now well settled by the S. Manoharan case, that no hearing should be conducted without any judicial members, as they have the power, knowledge and responsibility and such hearings shall be void-ab initio. GAC and their hearings are also against the basic jurisprudential principle of Rule of Law and supremacy of law

This is also causing Article 50 of the constitution to be completely disregarded, that is the attempt to separate the powers and functions of executive and the judiciary. But presently, too much delegation of functions is taking place, thus hampering the efficiency of its implementation. Even rationally, application of judicial mind would be much needed because most of the violations of due diligence is being penalized and punished under the IPC, making such violations a criminal offence, thus keeping judicial members on the GAC board shall work in twofold, that is, reducing the work load of the ministry of broadcasting and information and passing direct orders to curb any menace, rather than further delegation and compromising efficiency.

Apart from the aforementioned, such strict scrutiny is also cited by the legal advisers of the current government to be a step towards totalitarianism, the same as followed in China which is inspired by North Korean model of censorship. The rule 3 is under the challenge in the Delhi High Court, Karnataka High Court as well. Although the advices and inputs were sought from all the stakeholders before passing the IT Rules, 2021, none heed was paid to thy. Rather, the legal advisers who spoke against the Rules, and stated its adversaries were very gingerly sidelined and were declined any credits, a pure case of “charity begins at home”.

In conclusion, the entire Rule 3 of the IT Rules 2021 is unconstitutional as it exceeds the provisions and requirements of the parent act, as it restricts the freedom of speech and expression, as the GAC is extending too much judicial function to a non-judicial rather executive bodies, which is violative of Article 50 of the constitution, and that no hearing should be conducted without judicial body, which puts the hearings and the recommendations made after such hearings of GAC under the questionable radar.

But with minor though significant changes in the composition of the GAC’s levels, a board chaired by the judicial member, at all three levels, can improve the current scenario and make the hearings compliant with the rule of law as well as be in the interest of meeting the ends of justice, keeping in hindsight that this digital world is the new reality where more presence of people and work is seen than in the physical world, thus more exacting regulatory bodies will have to be formed and hard and fast enforcement of such will have to be done in this virtual field.ordPress. This is your first post. Edit or delete it, then start writing!