Thursday, February 9, 2023

Delhi HC seeks Centre’s stand in plea challenging constitutional validity of IT Rules, 2021

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The Delhi High Court, on Thursday, sought the stand of the Centre in a fresh plea filed challenging the constitutional validity of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which were notified by the Central Government on February 25’ 2021.

The Bench comprising Chief Justice D.N. Patel and Justice Jyoti Singh issued a notice in the petition by an Advocate, who is affected by the said Rules. The matter is slated for September 13’ 2021.

Advocate Uday Bedi, being a user of various Social Media Intermediaries (SMIs) including WhatsApp, Instagram and Twitter,  has challenged Rules 3 and 4 of the IT Rules, 2021, for encroaching upon the privacy in personal communication of the user and thereby, being unconstitutional and ultravires of the parent Act, I.e. Information Technology Act, 2000.

The plea thus reads: “The direct and inevitable test prescribed by the Hon’ble Supreme Court of India in Maneka Gandhi v. Union of India, (1978) 1 SCC 248 if applied to the present case shows that the Petitioner who is a regular user of the SMIs, is no longer being afforded protection of privacy in his communication with his peers and clients, freedom to express his views and protection from arbitrary action of the State. All these are not only fundamental rights of the Petitioner but also form part of the basic structure of the Constitution. Constitutionality of the Impugned Rules is further being challenged on the grounds that they have been made in bad faith; and they are inconsistent with the parent legislation.”

The plea also states: “While giving powers in excess of the powers given under the parent legislation, to voluntarily remove access to information that does not conform to Rule 3(1)(b), the Impugned Rules have allowed the SMIs to place the users of these platforms under constant surveillance which is a gross breach of the right to privacy which has been recognized by the Hon’ble Supreme Court of India in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.”

The plea avers that there is no mechanism for the author of the information to be heard prior to a decision being taken by the SMI on blocking access to the information, depriving him of his fundamental rights without even being heard. “As such, this provision is extremely draconian and amounts to a gross violation of Article 14” states the plea. 

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Also, the rules allow SMIs to find out the first originator of a message by decrypting all conversations of different persons, thereby infringing the privacy of the users. 

In this light, the plea seeks striking down of Rule 3 & 4 of the IT Rules, 2021.

The plea thus states: “Impugned Rules are anti-thetical to the fundamental principles of democracy which is part of the basic structure of the Constitution, where the State agencies are liable to be transparent and the citizens are allowed various rights and freedoms.”

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