In the exercise of its powers granted under Section 69A(2) and Section 79(2) of the Information Technology Act, 2000 [hereinafter referred to as the “IT Act”], the Ministry of Electronics and Information Technologyintroduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 [hereinafter referred to as the “IT Rules”] which aims to increase the accountability of social media platforms such as Twitter, Facebook, Instagram etc. and to prevent the misuse and abuse of such applications. The provisions of the IT Rules have been severely criticised for jeopardising freedom of press. Recently the Bombay High Court stayed Rule 9(1) and 9(3) of the IT Rules (which empowers the central government to police compliance with a code of ethics) for infringing Article 19 of the Constitution, which protects freedom of expression. This code of ethics was issued by the Ministry of Electronics and Information Technology and is attached as an Appendix to the IT Rules. However the court did not stay Rule 14 of the IT Rules (which provides for the setting up of an inter-departmental committee consisting of members from various ministries, to adjudicate on complaints about alleged violations of the code of ethics). In this post, we examine Rule 14 through the prism of two fundamental principles – the doctrine of the separation of powers and principles of natural justice.
Doctrine of the Separation of Powers: the “Essential Functions” Test
Under the Constitution of India, the doctrine separation of powers is manifested in Article 50, which provides that “the State shall take steps to separate the judiciary from the executive in the public services of the State”. The Supreme Court of India in Indira Gandhi Nehru v. Raj Narain held that the doctrine of separation of powers forms part of the basic structure of the Constitution. Consequently, any statute or rules formulated in contravention of the doctrine of separation of powers are unconstitutional.
Considering the complexities of a modern democracy, the courts have observed that the doctrine of separation of powers cannot be followed in its strict sense. The courts recognised and acknowledged that the powers exercised by different organs of the government cannot be confined into watertight compartments. In Bhim Singh v. Union of India the Supreme Court of India set out the following test to determine whether the separation of powers had been violated:
A law would be violative of separation of powers not if it results in some overlap of functions of different branches of the State, but if it takes over an essential function of the other branch leading to lapse in constitutional accountability. It is through this test that we must analyze the present Scheme. [emphasis added]
Therefore, in order to determine whether the IT Rules infringe the separation of powers, they need to be considered in light of this ‘essential functions’ test.
Application of the Essential Functions Test to the IT Rules –
The essential function of the judiciary is the adjudication of disputes. However, what is an “essential” part of adjudication? This can involve among other things, hearing evidence and legal argument from both parties, interpreting relevant legal provisions and delivering judgment. In Kihoto Hollohan v. Zachillhu the Supreme Court set out the following 3 pronged-test:
- There must be a lis – an affirmation by one party and denial by another;
- The dispute must involve decision on the rights and obligations of parties;
- The authority must be called upon to decide it.
Rule 14 of the IT Rules provides for the constitution of an Inter-Departmental Committee [hereinafter referred to as the “Committee”] made up of representatives from different Ministries. The Chairperson of the Committee is an officer of the Ministry of Information and Broadcasting. Rule 14(2) empowers the Committee to hear the complainant. Further, Rule 14(4) empowers the Committee to issue notices of a complaint, conduct hearings (if it decides it is necessary) and make written submissions and directions to any of the parties. Finally, under Rule 14(6), the Ministry of Information and Broadcasting can issue appropriate orders and directions to the parties following the recommendations of the Committee. In essence, the Ministry would decide on the outcome of any complaint, after hearing both the parties. The order of the Ministry would affect the rights and obligations of the parties. For instance, an order to delete or modify online content would affect the publisher’s right to publish content in the digital space. On a plain reading of the provisions of the IT Rules, it becomes evident that the IT Rules have usurped essential judicial functions and conferred it in the executive branch.
The IT Rules and the Rule against Bias
The newly constituted IT Rules also arguably breach principles of natural justice and, in particular, the rule against bias. Rule 14(2)(b) empowers the Committee to hear the complaints referred to it by the Ministry of Information and Broadcasting. Upon hearing the complaint, the Committee would give recommendations. The Ministry of Information and Broadcasting would consider these recommendations and pass appropriate orders. Essentially, the IT Rules permit the Ministry of Information and Broadcasting to pass orders and directions on a complaint filed by the Ministry itself.
One may argue that the abovementioned principle of natural justice is not violated since the Ministry has no interest in the outcome of complaints. This objection may sound plausible at a superficial level, but loses its strength when considered pragmatically. To illustrate, consider a scenario where a person expresses his harsh critique towards a government policy over a social media platform which gains traction overnight and myriads of people start sharing the same. In order to quell dissent, the Ministry may refer the matter to the Committee. Regardless of the recommendations made by the Committee, the Ministry may then pass “appropriate” orders which might include directing the social media platform to remove or delete the access of the critique of government policy.
Curing both these defects would require a major amendment of the IT Rules to remove the Ministry’s powers. An alternative method for dealing with complaints could be a Committee comprising members of the judiciary and different ministries. There is precedent for this. In Revenue Bar Association v. Union of India, Sections 109 and 110 of the Tamil Nadu Goods and Services Act, 2017 were challenged for violating the constitutional principles of judicial independence and the separation of powers. These provisions dealt with the constitution of a Goods and Services Tax Appellate Tribunal comprising of 1 judicial member and 2 technical/non-judicial members. The Madras High court struck down these provisions and held that the majority of members must be judicial officers since adjudication of disputes requires the application of a judicial mind. Therefore, in order to ensure that there is no violation of principle of separation of power, the disputes related to the violation of the IT Rules, should similarly be adjudicated upon by a committee comprising majority of judicial members. However, this will require political will to alter the IT Rules, which may be absent.
Maulik Khurana and Vidhan Malik are students at the National Law University, Jodhpur, India.