While the proposed amendments to the IT Intermediary Guidelines Rules may seem modest, the innocuous changes that have been proposed could replace the current, rule-based design of India's internet governance with a regime of executive discretion.

This article first appeared in the Mint. You can read the original here. For the full archive of all my Ex Machina articles, you can visit my website.

On 30 March, the Ministry of Electronics and Information Technology (MeitY) published draft amendments to the Information Technology (Intermediary Guidelines) Rules, 2021, which, if passed, will have far-reaching consequences for internet users in India. While each of the three primary amendment proposals does something different, together they will transform the internet from a rules-based regime into one governed by discretion. Though they may seem benign, their bite could be worse than their bark.

The new Rule 14(2) would expand the powers of the Inter-Departmental Committee (IDC) from hearing just "complaints and grievances" to "any matter" referred directly by the ministry. Rule 8 takes things further by not just expanding adjudicatory power, but who is subject to it—from 'publishers' to anyone who posts about news online. But both these pale in relation to Rule 3(4), which reshapes the source of legal authority.

Let's go through each provision to better understand how they will all affect us.

Let us start with Rule 14. Through a set of innocuous adjustments, sub-rule (2) will significantly expand the powers of the IDC. From being an apex appellate body in a three-tier complaint-resolution mechanism for violations of the Code of Ethics, it could become a super-regulator with the power to hear just about "any matter" that the ministry refers to it.

There are two problems with this. First, since the IDC would have the power to rule on anything the ministry sends it, the recommendations it issues could well exceed the statutory authority under which it was created. But what's far worse is that by accepting references directly from the ministry, parties could be denied the two levels of appeal they are currently entitled to, thus collapsing the current three-tier mechanism into a single executive-controlled process. With this one amendment alone, the government could end up violating principles of both administrative law and natural justice.

It is worth noting that in August 2021, the Bombay High Court stayed the Code of Ethics framework as prima facie violative of Article 19(1)(a) of the Constitution of India—a prohibition subsequently extended by the Madras High Court. In this backdrop, for the inter-departmental panel to operate within this now tenuous structure would expand its powers even as the constitutionality of the framework itself remains under litigation and is questionable.

This brings us to Rule 8(1). As originally drafted, this provision applied only to "publishers of news and current affairs content" and "publishers of online curated content." In other words, regular news outlets as well as their online equivalents. The proposed amendment will extend the applicability of certain provisions to ordinary users who share news or current affairs content. Since sharing posts about news is something we all do, this means that a provision earlier designed for news organisations will now apply to you and me. In effect, the Code of Ethics, a standard of accuracy, fairness and impartiality with which news organizations must comply, could get extended to ordinary internet users who have neither the resources nor the inclination to vet everything they post at this level of rigour.

But it is the proposed addition of a new sub-Rule (4) to Rule 3 that in many ways is the most disappointing. This new provision seeks to legally elevate clarifications, advisories, orders, directions, standard operating procedures, codes of practice and guidelines to the level of rules and regulations (the only forms of subordinate legislation that the executive branch is constitutionally permitted to enact). If brought into force, it will allow the executive to make a new law without calling it a law, and, in doing so, arrogate upon itself the power and authority that ought to vest with the legislature. Or at the very least be subject to Parliamentary supervision.

The power of the executive branch to make rules and regulations is always subject to an obligation to place them before Parliament as soon after they have been made as possible. By elevating various informal executive instruments of this kind to the level of enforceable law—none of which need to be laid before the legislative branch—the government seems to be trying to evade a necessary constitutional check on its power.

What makes these regressive proposals particularly disappointing is that they were released for public consultation just three days after the Jan Vishwas Bill was introduced in the Lok Sabha. The latter, as many have noted, is the single largest horizontal decriminalization effort anywhere in the world, significantly improving the ease of doing business across sectors. Central to this deregulation effort is the principle of regulatory certainty it embodies—that the state should not impose compliance obligations on citizens through instruments that do not carry the weight of the law. For the government to just a few days later introduce amendments that do just that shows how little the left hand appears to know of what the right is doing.

I am the first to admit how hard it is to govern modern online spaces. These proposed amendments are an attempt to walk a well-known tightrope between allowing free expression online and preventing the harms that can result. But if we cannot find a more effective way to strike that balance, we will replace a system governed by rules with one ruled by executive discretion.