By Raghav Ahooja
A recent disturbing trend has emerged wherein the Government is not debating and discussing matters of national importance in Parliament. The government is seen using a back door entry to delegate away its legislative functions to the executive, often landing in the hands of the bureaucracy in the form of rules or guidelines that go virtually unchallenged and unopposed.
Last week, the Ministry of Electronics and Information Technology (MEITY) notified the Information Technology Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which require intermediaries to conduct due diligence on specific parameters and set up a grievance redressal mechanism. Under these rules, publishers will also be required to follow a code of ethics.
Through this notification, the Central Government has delegated powers to the MEITY and Ministry of Information & Broadcasting (MIB) to regulate digital media under the IT Act, 2000. But as per the mandatorily imposed Allocation of Business rules framed by the President under Article 77(3) of the Constitution only the MEITY can regulate under the IT Act. It cannot regulate digital media as it is the domain of the MIB, as per an amendment last year to the Allocation of Business Rules, 1961.
Given that the government has expanded the scope of executive power, over new and emerging areas like social media and digital media, there are two salient questions that arise concerning the new intermediary rules. The first is, where does the MEITY draw its powers from to regulate digital media? And the second is, if the MEITY is responsible to govern the IT Act as it is a Cyber law, how can the MIB be given powers to administer rules under the same framework ?
Abdication of legislative functions, yet again
If the MIB were to legally regulate digital media, it would have to be through a law passed by the Parliament. By not passing a law, the government has created a legal vacuum that it has attempted to fill-in through a “patchwork” of rules. This is a new disturbing trend wherein the Parliament is seen to be abdicating its legislative functions and duties, as it did with the Aarogya Setu app, where last year the government issued a ‘Protocol’ to mandate the usage of the app instead of an Ordinance or appropriate legislation last year.
This Protocol was issued by an ‘Empowered Group’ headed by the Secretary, MEITY. Such a body was envisioned under widely interpreted guidelines empowering the chairperson of the National Executive Committee (NEC)—the executive arm of the National Disaster Management Authority (NDMA) formulated under the Disaster Management Act, 2005—to create such bodies and sub-delegate the task of creating the Protocol. It is a classic example of delegation of powers done too loosely or beyond the permissible limits, rendering the legality of the Protocol questionable.
It is the job of the Parliament to legislate on digital media, as it is clear from the entry 31 of the Union list of the Seventh Schedule which reads as follows:
“31. Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication.” [emphasis added]
The government had also proposed regulating digital media through the draft Registration of Press and Periodicals (RPP) Bill, 2019, issued by the MIB, which is pending. By not regulating digital media by following a rigorous parliamentary process, there is a parliamentary failure. The binding rules of conduct in the form of rules and regulations can only be issued under such a legislation. Since the MIB cannot legislate upon the IT Act at all (as per the Business Rules), it also cannot administer a part of these rules through a MEITY notification issued under the IT Act.
This is in violation of the principle upheld by the Supreme Court that ‘What cannot be done directly, cannot be done indirectly’ and the legal maxim of delegatus non potest delegare. In the context of the Allocation of Business Rules, the Supreme Court held that ‘a delegate cannot relegate’. Thus, in this case, the MEITY cannot in furtherance of Article 77(3), delegate its functions to MIB and vice versa.
Therefore, the interpretation of the sub-clauses of the IT Act that has been used to infer these wide powers to legislate upon the subject matter of ‘digital media’, if challenged in court, would fall foul of the Supreme Court’s judgments on excessive delegation. For example, the sub clauses that have been used to regulate ‘digital media’ under the rules are sec 87(2)(z) and (zg) which read as follows:
(z) the procedures and safeguards for blocking for access by the public under sub-section (2) of section 69 A;
(zg) the guidelines to be observed by the intermediaries under sub-section (2) of section 79”
These sub-clauses ipso facto do not lay down the limits of the guidelines that can be prescribed insofar as they are being used to regulate ‘digital media’. Sec 87(2)(z) read with sec 69A refers to regulation in the form of blocking for access by the public “any information generated, transmitted, received, stored or hosted in any computer resource”. It was observed by a seven-judge Constitution bench in the landmark case of In Re: The Delhi Laws Act 1912, which deals with the permissible limits of delegated legislation, that powers mustn’t be legislated so loosely that the area of the delegated legislation cannot be ascertained, leading it to cover all areas of law.
The Supreme Court ruled that if the delegation is of an indefinite character, such delegation may amount to either partial or complete “abdication of essential legislative functions of the legislature”; which consist of declaring a policy and making it a binding rule of conduct. These essential functions are repeatedly being performed by the executive and the bureaucracy, and not the legislature itself, leading to the partial abdication of its essential functions by not legislating on a subject under entry 31, in this case. Even the Supreme Court, to that extent, has remarked in context of the Tandav case that “they are only guidelines”, and that a legislation is required.
Violation of Business Rules
As mentioned above, it has been held by the Supreme Court that the Allocation of Business rules are mandatory and the violation of which renders the concerned notification void. Therefore, if the subject matter of ‘digital media’ has not been allocated to MEITY (that is the issuing Ministry) under the said business rules, the notification shall fail on legality. According to the Business rules, the MEITY can legislate upon ‘digital media’, if and only if ‘digital media’ falls under any of these three heads: ‘Matters relating to Cyber laws’. ‘administration of the IT Act’ or ‘administration of other IT related laws’. It does not fall under any of the three.
Matters related to Cyber Laws
It may be argued that ‘Cyber laws’—the law of the internet and matters related there with—is wide enough to include the regulation of publishers processing content on digital media. But when there are two or more ministries involved with a subject matter, the Ministry in Charge still remains in charge as long as the specific subject is allocated to it in the Business rules, as per the Transaction of Business Rules, 1961. In the case of cyber crimes, the MEITY consults the Ministry of Home Affairs, for example, as criminal law is the subject matter of MHA under the Allocation of Business Rules, 1961, yet MEITY is ultimately in charge as Cyber laws fall under its ambit.
In 2020, the Delhi High Court observed that “the whole of the Allocation of Business Rules, 1961 have to be read harmoniously and cannot be read in such a manner that [the clauses are] totally ignored”. It also said that the business rules should be interpreted in a manner which does not create any conflict or confrontation between different clauses and without rendering any entry redundant. In this particular case, as part of the Allocation of Business Rules the government made the entry of ‘CBI’(Central Bureau of Investigation) under the ambit of the Department of Personnel and Training (DoPT), while the Criminal Law and Criminal Procedure is placed under the MHA.
The petitioner argued that since the entries of Criminal Law and procedure—which is wide enough to accommodate matters related to the CBI—fall under the ambit of the MHA, the matters relating to the CBI would also fall under its ambit. The Court rejected the argument stating the entry ‘CBI’ fell directly under the ambit of the DoPT thereby, making it the controlling ministry/department, and that a departure from this would create confusion and would render the entry ‘CBI’ under the DoPT redundant.
Similarly, if the overarching entry of ‘Cyber laws’ is given a liberal interpretation, this would render the entry, under the ambit of MIB, of ‘Digital/Online media’ (which as an entry is straightforward like that of CBI) redundant. The Court’s reasoning is in line with the maxim “Generalia specialibus non derogant“, meaning a special provision would exclude the operation of the general provision, which would entail that a special entry would be given precedence over a general entry when there is confusion/conflict while interpreting.
Administration of the IT Act
The IT Act does not seek to regulate ‘digital media’. It does not even define ‘digital media’, for that matter. The new IT rules go beyond the IT Act in regulating ‘publishers’—for example, sec 69A(1) of the IT Act only talks about directing a government agency or an intermediary to block for access by the public any information. While the rules, under rule 15(2), go ahead and provide for directions to be issued to any “publisher, any agency of the Government or any intermediary” to block for access by the public any information or content. It has been observed by the Supreme Court in various judgments that if a rule goes beyond the rule making power conferred by the statute, the same has to be declared ultra vires. The basic test is to determine and consider the source of power which is relatable to the rule.
Similarly, a rule must be in accordance with the parent statute as it cannot travel beyond it. Before a rule can have the effect of a statutory provision, two conditions must be fulfilled:
- it must conform to the provisions of the statute under which it is framed; and
- it must also come within the scope and purview of the rule making power of the authority framing the rule.
If either of these two conditions is not fulfilled, the rule would be void. The Supreme Court has also ruled that it is a well recognised principle that the conferment of rule making power by an Act does not enable the rule making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto. A Constitution Bench has also held that the statutory bodies cannot use the power to make rules and regulations to enlarge the powers beyond the scope intended by the legislature. Rules and regulations made by reason of the specific power conferred by the statute to make rules and regulations establish the pattern of conduct to be followed.
Thus, ‘digital media’ cannot be regulated under the head ‘Administration of the IT Act’, since the rules travel beyond the scope and purview of the IT Act.
Administration of other IT related laws
Assuming arguendo, that regulation of digital media in relation to processing of content on digital media by publishers as an aspect can be covered under the broad terminology of ‘other IT Laws’, digital media still directly falls under the ambit of the I&B Ministry. The legislation or the delegated legislation under this hypothetical legislation in the form of rules can only be enacted and made by MIB as it is the nodal Ministry/Ministry in Charge.
It has been conceded by MEITY itself in the IT Rules 2021 that the part regarding ‘digital media’ is to be “administered by the Ministry of Information and Broadcasting”, and that it is clearly the domain of the MIB. Moreover, the maxim “Generalia specialibus non derogant” applies here once again. Thus the generality and vagueness of ‘other IT related laws’ cannot trump the specificity of ‘Digital/online media’ under the MIB, and digital media cannot be regulated under the head ‘Administration of other IT related laws’.
In conclusion, it suffices to say that such a notification strikes at the very core of constitutional principles and maxims such as “Delegata potestas non potest delegari” or ‘a delegate shall not redelegate’. These Business rules are mandatory and not merely directory, and any deviance from them causes great prejudice to the independence of and functioning of the executive and legislature.
There seems to be a connivance between the two, which ultimately prejudices the rights of the citizens. It still seems like all these institutions are merging into one super-institution. The IT rules cannot trump and ignore other rules of governance. This strikes at the very core of constitutional principles such as separation of powers. The rules are ultimately ultra vires the IT Act and are liable to be challenged in court, since they have been issued by the wrong Ministry and extend beyond the scope of the IT Act.
Raghav Ahooja is a fifth year law student from RGNUL, Punjab. He is interested in the intersection of law and technology.