Update on 24/3/23 at 11:00 am: Responding to MediaNama’s appeals to the earlier RTI response, the IT Ministry once again declined to provide information on the pre-release consultations. “Information Provided by CPIO [Chief Public Information Officer] is complete and there is no further information to be shared. hence the appeal is disposed off [sic],” was the appellate officer’s response to each of our 11 appeals.
Original story, published on 7/2/23 at 1:15 pm: The IT Ministry has declined to provide information on the meetings it had with the online gaming industry in the run-up to releasing its new framework for online gaming on January 2nd, 2023.
What were these meetings about? “The Ministry had moved swiftly in framing the policy and this was possible due to a series of meetings/consultations conducted by MeitY [the IT Ministry] with stakeholders prior to drafting the policy,” said India’s Minister of State for Electronics and Information Technology Rajeev Chandrasekhar last month when the policy was released, reported Times of India.
MediaNama filed multiple Right to Information (RTI) applications with the Ministry last month to find out what transpired at these meetings.
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What’s so special about the response? It’s rather surprising—the government was clear that public feedback on the released rules would be held in a “fiduciary” capacity, or withheld from the public. It didn’t specify that pre-release consultations are confidential too.
Why it matters: Overall, this points towards a worrying trend in Indian tech policy-making—where policy making happens behind doors that should ideally be open. Even submissions for one of India’s most important laws—the draft data protection bill—weren’t disclosed to the public. As we reported back then, “disclosing public feedback not only ensures transparency from the government’s end but also helps in holding them accountable for the laws and rules they bring in. One can gauge whether the general public or the stakeholders are in favour of, or against a law or a set of rules (or certain provisions within them) by looking at the feedback”.
So, what happened?
What did we ask the IT Ministry? Last month, MediaNama filed over 10 RTIs with the Ministry on its individual consultations with major gaming and industry associations, gaming platforms, state governments, and consumer welfare groups, prior to the release of the online gaming rules. Information requests included:
- List of all the meetings that took place between the Ministry and the concerned stakeholder;
- Participants attending these meetings;
- Copies of the minutes of the meetings for all such discussions;
- Copies of any non-confidential documents presented in these meetings;
- Copies of any non-confidential letters, documents or emails exchanged between the concerned stakeholder and the IT Ministry;
- List of any other Central government or external third parties involved in these consultations;
- Copies of any non-confidential documents provided by any other Central government or external third parties during the consultation.
What did the IT Ministry say about sharing the information? The government declined to provide information across the board. We got this stock reply to all our RTIs:
Regarding the inputs received from various Ministries/Departments and other stakeholders by the Ministry of Electronics and Information Technology (MEITY) in preparation of the draft amendments to the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 in relation to online gaming (Draft Amendments), kindly refer to the Notice regarding the Public Consultation which was commenced on 02-1-2023 and ended on 25-1-2023 and which is also available at : https://www.meity.gov.in/content/draft-amendments-it-intermediary-guidelines-and-digital-media-ethics-code-rules-2021.
The draft amendments are placed on the Ministry’s website at : https://www.meity.gov.in/content/draft-amendments-it-intermediary-guidelines-and-digital-media-ethics-code-rules-2021 .
As per this Notice, submissions will not be attributed to individuals publicly and will be held in fiduciary capacity to enable persons submitting the feedback to provide the same freely (emphasis added).
But wait, there’s more: If you look at our questions, we weren’t just asking about what companies or industry groups discussed with the government. We were also asking for access to internal communications within the government, with states, and with other relevant third parties. For that, the government added this second paragraph in its replies to all our RTIs:
Further, as regards the inputs received from the Ministries and Departments, state governments or any other agencies or organisations, since the matter of Inter-Ministerial Task Force (IMTF) which was entrusted with the task of online gaming regulation involves Cabinet papers including records of deliberations of Committee of Secretaries being secret in nature and also due to the fact that the IMTF resolutions including drafting of rules for online gaming being treated as confidential originated from the Cabinet Secretariat are still under review and the final decision on this issue is yet to be arrived at, this Ministry is of the considered view that it should restrain from submitting any further details till further direction is received in this regard. The scope and modalities of the future law or regulation on online gaming in the country are yet to be finalised (emphasis added).
What this means: So, the government also withheld these papers on secrecy and confidentiality grounds. But we’re not sure if this is a fair response. For example, in 2016, the Central Information Commission “issued an order saying that under the RTI Act 2005, the cabinet secretariat cannot deny access to items on the agenda placed before the union cabinet after a meeting is over”. We’re not sure if the ruling applies here—but we’ll appeal the RTI responses and find out.
A sense of déjá vu
This isn’t the first time we’ve gotten a government response like this on a gaming law. Last year, we asked the Tamil Nadu government via an RTI to divulge information on how it drafted a controversial law banning online gambling in the state. We wanted to know about who it had consulted, what people had asked for, and the recommendations that shaped the final draft. The government declined to provide information the first time around as the law was yet to come into effect. When we appealed, we got this answer:
“The Tamil Nadu Prohibition of Online Gambling and Regulation of Online Gaming Bill, 2022 (..) is yet to come into effect and since the matter is still under the consideration of the Government the information requested in your Right to Information appeal petitions (..) cannot be furnished.”
We’re in the process of appealing this decision.
Spot the difference: The Tamil Nadu government at least provided a legal clause to justify its response to the appeal. The IT Ministry did not—even though the same clause may have been relevant here.
The information in the Tamil Nadu case was denied under Section 8(1)(i) of the Right to Information Act, 2005—which allows the government to deny disclosing “cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers”. This is provided “that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over,” and that “those matters which come under the exemptions specified in this section [Section 8] shall not be disclosed”.
What about the Pre-Legislative Consultation Policy?
The Indian government came out with a Pre-legislative Consultation Policy (PLCP) in 2014, to “support the legitimate and growing expectations for transparent and better informed Government”. All Central ministries—like the IT Ministry—have to follow it while they’re drafting a law or rules (like the online gaming ones). It says that “the summary of feedback/comments received from the public/other stakeholders should .. be placed on the website of the Department/Ministry concerned”. In some cases, the concerned Ministry might think that holding this sort of pre-legislative consultation isn’t feasible or desirable—and it can record the reasons for that in a note to the Cabinet.
Did the IT Ministry follow the policy? No. But then, not many other government departments historically have either. “There have been over 200 consultations since the 2014 PLCP policy and I can say no more than 5 instances have been there where the department has uploaded feedback,” policy researcher Arun P.S. told MediaNama last year. “This [policy] is not really enforceable, which comes into the executive purview”.
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