Sir, I move:

“That this House resolves that the Information Technology (Intermediaries Guidelines) Rules, 2011 issued under clause (zg) of sub-section (2) of Section 87 read with sub-section (2) of Section 79 of the Information Technology Act, 2000 published in the Gazette of India dated the 13th April, 2011 vide Notification No. G.S.R 314(E) and laid on the Table of the House on the 12th August, 2011, be annulled; and That this House recommends to Lok Sabha that Lok Sabha do concur in this Motion.”

Sir, after a long time, our Parliament is discussing a Statutory Motion. This is one of the rarest occasions in Parliamentary proceedings. Normally, Parliament would not get an opportunity to discuss rules. Statutory Motion is the only opportunity for Parliament to discuss rules. Parliament has the power to make laws. But the power to make rules is delegated to the Executive. The legal requirement is that the rule should be in accordance with the parent Act. But, nowadays, we find that most of the rules are ultra vires the parent Act. The Information Technology (Intermediaires Guidelines) Rules, 2011, is a clear-cut illustration of this trend, which needs to be curbed by the supreme law-making body of the country, that is, Parliament. The World Summit on the Information Society is going to be held in Geneva tomorrow, where different aspects, including Government-control on internet by our country, are going to be discussed. We are discussing this Motion today, and this would reflect on the Conference which is to be held in Geneva.

Coming to the grounds for this Statutory Motion, I would like to state one important thing. I am not against any regulation on internet, but I am against the control on internet. What is the difference between regulation and control? Recently, Justice Markandey Katju correctly made a distinction between control and regulation. In control, there is no freedom. In regulation, there is freedom within the reasonable restrictions given under our Constitution. The Information Technology (Intermediaries Guidelines) Rule is an attempt to control the cyber space. It is an attempt to curtail freedom of speech and expression which has been ensured under article 19 (1) (a) of the Constitution. Sir, we have enough legal provisions to regulate the internet. The I.T. Act, 2000, has a very strong provision to regulate internet. I would like to invite the attention of this august House to Section 69 of the Act. Section 69 (1) gives powers to issue direction for blocking, for public access, any information through any computer resource. This Section has correctly specified what the offendable things are. Now, I quote Section 69 (1): “If satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence, relating to above, it may subject to the provisions of sub-section (2).” These are correct formulations. This is in accordance with article 19 (2) of the Constitution. But, in addition to that, Section 69 (3) talks about intermediaries. What are intermediaries? Now, when we use the I-pad in Parliament, we get the internet access through the MTNL. So, that is an intermediary. Likewise, Google and Yahoo are intermediaries.

Facebook and Twitter are intermediaries. Web hosters are intermediaries. These are intermediaries. In the Act itself there are strong provisions to control these intermediaries. 69 A (3), “The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years”. Section 69 A (3) is a very strong provision in the Act itself. Sir, the Government has made rules on the basis of Section 69, i.e. the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. Sir, if the formulation of procedure is very correctly framed, then, how can the content be blocked by an intermediary? The designated officers are there. Specific Committees are there. Reviewing Committees are there and as per this Rule, there is a strong provision to control the intermediaries also. A provision to not only regulate, but even to ‘control the intermediaries’ is there in the Act itself. Then, Sir, there are too many criminal provisions in the IT Act. While coming to Section 66 A of the IT Act, “causing annoyance or inconvenience electronically has a penalty of three years and does not require a warrant to arrest.” That is the provision of the Act itself. That shows the IT Act itself and the rule in accordance with several sections of the Act give power to the Government, and also to the intermediaries, to deal with all these things. Then, what is the urgency for the new rule? Sir, in 2004, Avnish Bajaj, the CEO of Baazee.com, an auction portal, was arrested for an obscene MMS clip that was put up for sale on the site by a user. The Baazee.com case, a well-known case, resulted in an appeal by the industry to amend the Information Technology Act by providing protection to intermediaries from liabilities arising out of user-generated content. Sir, the intermediaries have no editorial control on the content. That is true. Then, certain protection should be there. For this, the IT (Amendment) Act, 2008 amended Section 79 of the IT Act, 2000 to provide for safe harbour protection to intermediaries. The safe harbour protection available to intermediaries is conditional upon their observing “due diligence” while discharging their duties under the Act and observing guidelines issued by the Government in this regard. Sir, these guidelines prescribing “due diligence” to be observed by intermediaries were notified in April 2001 in the form of IT (Intermediaries Guidelines) Rules 2011. Sir, why should these rules be annulled? That is the content of the Statutory Motion. Firstly, Sir, these rules are ultra vires to the parent Act. Section 79 intended to give harbour protection to the intermediaries. The purpose of Section 79, amended Section, is to give harbour protection to the intermediaries from other liabilities, but this rule has gone against the intent of Parliament by introducing a private censorship mechanism. Sir, this is private censorship. Delhi High Court in 2002 has specifically stated that pre-censorship cannot be countenanced in the scheme of our Constitutional framework. That is the verdict of Delhi High Court in 2002. These Rules, the new Rules, which we are discussing now, cast an obligation on the intermediaries to remove access to any content within 36 hours on receiving a complaint from an affected person, that falls under the category of a wide vague undefined list of “unlawful” content specified in the Rules. That is true. The rule should act, but defacto they are compelled to remove the content.

That is the reality. It has been experienced by several organisations and other people by giving some complaints and the content was removed within 36 hours. The unlawful content has been mentioned under Rule 3(2) of Intermediaries Guidelines. Rules 3(2) says, "Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information." Then, Sir, 3(2)(b) specifically states what are the offendable contents, but without defining what are these. Sir, I would not like to take more time to read all these things. But, I would only say any information that is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, pedophilic, libellous and there are several things has to be informed to the computer users. It is neither defined in the Rules nor is defined in the Act. But, Sir, Section 69 of the Act specifically defined unlawful content. The correct formulation of Section 69 specifically defined unlawful content which came under the purview of Article 19(2) of the Constitution. But, Rule 3(2) of the Intermediaries Guidelines goes beyond the Act which is a clear violation of the Act.

Sir, my second point on the ultra vires of the parent Act is Section 69. Sir, Section 69 of the Act gives power to the Government to issue direction for interception or monitoring or decryption of any information through any computer resource. Sir, Section 69(2) provides for procedures and safeguards subject to which such interception or monitoring may be carried out. The executive has made a rule on the basis of Section 69. It clearly specifies what are the provisions and procedures followed by the executive to take information with regard to the user. But, Sir, Sub-Rule 7 of Rule 3 of the Intermediaries Guidelines mandates the intermediary to provide information of any such assistance to Government agencies without any safeguards. This is a clear violation of the Act. This is clearly against the guidelines specifically framed by the Supreme Court in Telephone Tapping Case. This is a clear violation of Section 69 of the IT Act and this could have serious implications on the right to privacy of citizens. I come to Section 88 of the Act. There is a provision for Cyber Regulations Advisory Committee. Soon after commencement of the Act, Cyber Regulations Advisory Committee consisting of -- who? -- the interests of principally affected or having special knowledge on the subject matter to advise the Government on framing the rules. In the Act itself, there is a provision to constitute an Advisory Committee. Sir, Information Technology, cyber space, etc., are new sectors and hence expertise is required. So, the Government has correctly framed Section 88 in the IT Act to constitute Cyber Regulations Advisory Committee to advise the Government for framing the rules. These rules, without seeking any advice from the Committee, have been framed. It is because even after one decade this body has not yet been formed. The advisory mechanism or body to guide the Government on framing the rules has not yet been constituted even after one decade of the Act! This is a very serious thing. Sir, the apex court of the country has quoted several rules which are ultra vires of the parent Act. I am sure, as an eminent lawyer, our hon. Minister, Mr. Kapil Sibal, is well aware of the fundamental principles of the Subordinate Legislation that essential legislative function cannot be undertaken by the executive since it is the sole prerogative function of the Parliament. It is the sole prerogative function of the Parliament. It should not be delegated to the executive. If the Government wants any change, it has to come to Parliament. That is my first ground on this Motion. Secondly, this rule is violation of the Constitution.

Article 19(1) of the Constitution ensures the right to freedom of speech and expression. Article 19(2) of the Constitution specifically defines the 'reasonable restrictions'. But, Rule 2 goes beyond article 19(2) of the Constitution. The Supreme Court held in the Express Newspaper Private Limited versus the Union of India case that if any limitation on the exercise of the Fundamental Right under article 19(1) does not fall within the purview of article 19(2) of the Constitution, it cannot be upheld. This was the verdict given by the apex Court in that case. In several cases, such as that of Mohini Jain versus the State of Karnataka, the Supreme Court of India quashed the rule saying that it was ultra vires of the Constitution, stating that the rule violates the principle of natural justice.

The rule does not provide an opportunity to the user who has posted to reply to the complaint and justify his or her case. This whole mandates the intermediary to disable the content without providing an opportunity to hear the user who posted the content. In some countries like America and the European Union countries, there is a provision to hold the content, remove the content for some days and after hearing the user who posted the comment, there is a provision to repost it. Such safeguards are not here. This is a clear violation of the principle of natural justice and it is highly arbitrary.

Fourthly, this rule prohibits the posting of certain content on the Internet while it may be lawful in the other media. For example, an article may be permitted in the print media, it may be permitted on television, the visual media, but the same article might be prohibited from being reproduced in a web edition. Sir, the Ministry issued a clarification in 2011. In that clarification, the Ministry had claimed, and stated:-

"These due diligence practices are the best practices followed internationally by well-known mega-corporations operating on the Internet".

Sir, it might be true. But self-regulation should not be equated with Government control. The Ministry, in the same clarification, also stated, and I quote:-

"The terms specified in the Rules are in accordance with the terms used by most of the Intermediaries as part of their existing practices, policies and terms of service which they have published on their website. In case any issue arises concerning the interpretation of the terms used by the Intermediary, which is not agreed to by the user or affected person, the same can only be adjudicated by a court of law".

What is the logic, Sir? Their attitude is, 'run away from defining these terms'. The Ministry has stated that the Intermediaries have defined these terms; if you have any objection to the definition, then, you can approach the court of law. What a logic, Sir! We are creating an avenue for judicial interpretation. We are running away from our own responsibilities. This is totally against the basic principles that we follow in law-making and in rule-making. Finally, Sir, I would like to submit what the internatonal approach is. The U.N. Human Rights Council says, and I quote:- "Censorship measures should never be delegated to a private entity. No one should be held liable for content on the Internet of which they are not the author. Indeed, no state should use or force Intermediaries to undertake censorship on its behalf".

This is what the declaration of the U.N. Human Rights Council states. That is the duty of the Government. As per the Act itself, there are certain provisions by which the Government can intervene and regulate the Internet. Several rules are there as per section 69 of the Act. But these rules in accordance with section 79 of the I.T. Act go beyond the Fundamental Rights enshrined in the Constitution, they also go beyond the principles which are being followed internationally and they also go against the declaration of the U.N. Human Rights Council.

Finally, Sir, we should recognize multistakeholder nature of internet. Tomorrow, in Geneva, there is a very serious debate on this multi-stakeholder. India has proposed some code and some Government control measures. I support some part of it. But, we should protect multi-stakeholder nature of the internet. This is a very serious attack on the freedom of speech and expression. This is a very clear violation of the parent Act, which is ultra vires to the parent Act, and ultra vires to the Constitution. This is against the principles of natural justice. So, I request the House to annul this rule itself to protect the rights of Parliament. Do not delegate these powers to the Executive. If the Minister wants any change, let him come to the House with an amendment Bill and make the rules accordingly. With these words, I conclude. Thank you, Sir. The question was proposed.

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