Content regulation was never a walk in the park. But as sub-optimal a solution as the Information Technology Act may be to the issue of intermediary liability, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) seek to tread impermissible ground by expanding the scope of the parent legislation. And we are just about beginning to find out the very many ways in which these Rules are unconstitutional.

To speak of the luxuries of simpler times, liability for third party content would attach when the disseminator exercised editorial control. In other words, when it came to looking for someone to blame, your traditional publisher was the chap that would best fit the bill. In contrast, the best classroom example of a disseminator that exercised no control over content would be that of a telephone service provider, operating as a common carrier.

Fast forward to the present day, and we find ourselves dealing with platforms that resemble neither the traditional publisher nor the common carrier and we continue to disagree on the definitional aspects relating to intermediaries. This is with fair reason, as most platforms have little in common, other than their use of electronic computer networks. As such, ‘intermediary liability’ has emerged as a troublesome issue of governance in our times.

In India, intermediary liability is governed by the fulcrum provision of Section 79 of the IT Act. The provision is designed to grant immunity to intermediaries for third-party content provided they do not initiate transmission, modify content, select recipients, and basically observe due diligence in carrying out functions. The law assumes that such platforms are, at least for the most part, passive neutral conduits, which is broadly in line with the legal position in other jurisdictions. Section 79(3)(b) excepts instances where the intermediary fails to expeditiously remove or disable access to offending content, despite receiving ‘actual knowledge’, or on being notified by the ‘appropriate Government or its agency’.

But if you have an eye for it, you will see that detail indeed is where the devil resides! Section 79 as drafted contains a nebulous cocktail of troubling and undefined expressions, such as ‘actual knowledge’, ‘agency’ of the appropriate Government, and ‘unlawful act’. Yet, the provision was held valid in Shreya Singhal after the Court had taken the trouble to circumscribe these expressions in some form and manner.

The expression ‘actual knowledge’ was read down to mean a pointed instance of failure to remove offending material after (or rather despite) receiving knowledge that a court order had been passed requiring removal of such content. As regards what an ‘agency’ of the appropriate government could or would mean, the Court appeared to have drawn comfort from the fact that the expression was limited by virtue of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (Blocking Rules) framed under Section 69-A(2) finding that an order for blocking content could only be passed one of two ways i.e. one by the ‘Designated Officer’ after complying with the 2009 Rules and the other by the ‘Designated Officer’ when he had to follow an order passed by a competent court. Finally, the expression ‘unlawful act’ was deemed to be limited to specified subjects delineated in Article 19(2) of the Constitution and nothing more.

Now, before someone comes along and captivates us with the obvious realities of how Parliament can override judicial precedent, (if only we had a penny for every time someone did that, we would all be millionaires), we are quite prepared to accept that it would be in the domain of Parliament to nullify the effect of the judgment by carrying out necessary amendments to Section 79(3)(b) or the like, that is, if that someone didn’t like what the judgment said.

Of course, if you are the government and you have better things to do than be bothered with constitutionally circumscribed limitations, it is much more convenient to have the executive branch frame a fresh set of subordinate legislation (that runs parallel, and in many ways counter to the Blocking Rules) that is metaphorically speaking, tantamount to introducing a monkey-wrench in such judicially circumscribed limitations. Which is precisely what the government sought to do by way of the IT Rules, 2021. So, to extend the game of obvious fundamentals for a moment, permit us to say that it is equally impermissible that the executive take upon itself the task of nullifying binding judicial precedent by way of introducing subordinate legislation as that is an exercise solely reserved for the competent legislature.

As is entirely unsurprising in any constitutional challenge, the Centre has asserted that the Rules are constitutional, having been framed in exercise of the powers vested in it by virtue of Section 87 of the Act. Indeed, this provision empowers the Central government, as a delegate of the legislature, to notify rules to implement and administer the requirements of the plenary legislation. But the problem lies not with the source of the power, but with what is sought to be achieved by the Rules. After all, any power to frame rules, is necessarily purely derivative and it is equally well established that subordinate legislation cannot enlarge the scope of a provision in the parent statute (…quite simply because the tail can’t wag the dog). And, it is on these finer counts that the Rules appear highly suspect.

For starters, Rule 3(1)(d) of the IT Rules, in addition to the eight designated subject-items in Article 19(2), pointedly and impermissibly expands the grounds on which free speech can be curtailed by including the catch-all phrase, “any information which is prohibited under any law for the time being in force”. While this is an obvious attempt to nullify the effect of the findings of the Court in Shreya Singhal, the transgression is of epic proportions, inasmuch as the Rule runs counter not only to Section 79 as interpreted and crystallised by the Supreme Court, but also to Article 19(2) itself.

And there is more. The Rules seek to once again undefine the critical expressions that had been contained and circumscribed by the court. Take the expression, “actual knowledge” in Section 79(3)(b) and the findings of the Court in Shreya Singhal that this meant instances where the intermediary derived knowledge on being notified by the appropriate government or its ‘agency’ (i.e. apart from instances where a court order was passed directing so). The Court had, in the hope of finding constitutionality, read Section 79 in conjunction with Section 69-A in order to arrive at a happy conclusion (for a limited time, only) that the expression ‘agency’ of the appropriate government meant nothing but the resident one-stop-shop ‘Designated Officer’, who was obligated to abide by the safeguards in the Blocking Rules.

The finding was a judicial recognition of the fact that content regulation is not a walk in the park, but is often a complex and demanding exercise. As such, the Court was sympathetic to the sentiment that intermediaries could not be left at the mercy of multiple authorities or to judge and scrutinize the relative merit of umpteen or misdirected requests to block content in the absence of judicial intervention. That worst nightmare - if the court ever had one - has now come true, as the Rules remove any tangible association between Section 79, Section 69-A, the Blocking Rules, and also the ‘Designated Officer’.

The consequence being, that intermediaries now routinely have to scrutinize, make sense of and judge the relative merit of blocking requests from multiple bodies, or any instrumentality that even closely resembles the State. An official at the Ministry of Electronics and Information Technology has gone on record to state, that “…the agency administering a particular law will be the appropriate government authority, whether it is under the state government or the Centre.” The problem is, and constitutionally speaking, such expansive definitions of the ‘State’ have only ever been utilised for the enforcement of fundamental rights and not inversely, to stifle speech that is perceived to be inconvenient.

While the proviso to Rule 3(1)(d) of the Rules provides that a notification to prohibit information shall be issued by an ‘agency’, as “notified by the appropriate Government”, we still yearn for the day when we will be blessed with a notification of the kind. This may be some time coming, because if you are the government, leaving an expression of this nature open-ended unlocks a jackpot of potential and untold possibilities. So, for the time being, but as we have long suspected, ‘agency’ simply means whatever it needs to. Recent events have demonstrated that the expression is capable of including the National Commission of Women (NCW), the National Commission for Protection of Child Rights (NCPCR) and even some non-statutory bodies – all demanding removal of content, obviously without due process and without conducting any exercise to appreciate evidence.

You see, the very intent behind the Rules was to create a parallel mechanism for blocking content as the ‘Designated Officer’ route had, with the passage of time, proved to be too cumbersome. While the Blocking Rules remain on paper, they have been rendered entirely nugatory, with the onset of the IT Rules, 2021 and the hassle-free method of demanding censorship that they offer. But cumbersome checks and balances are useful, if one values the worth of free speech. After all, not for nothing had these safeguards found favour with the Court in Shreya Singhal. For, if we make stifling speech a convenient business and allow tails to wag the dogs, we quite miss the whole point, and do so at the expense of our sacred liberties.

Faisal Sherwani is an Advocate-on-Record at the Supreme Court of India and is currently a Partner in the dispute resolution practice at L&L Partners, Law Offices, New Delhi.

Areeb Ahmad is currently an Associate in the dispute resolution practice at L&L Partners, Law Offices, New Delhi.

Views are strictly personal.