Petition challenging rules
A petition challenging the constitutionality of Intermediary Rules issued by Government of India has been filed before the High Court of Kerala. The Kerala High Court has admitted the petition directing the Ministry of Communications & Information Technology to file a reply within 8 weeks. The petitioner raised objections to certain provisions under Section 79 and Section 69 A contending these rules as unconstitutional.
The rules under Section 79 are interrelated with the rules under Section 43 A (April 2011). Therefore, it may be necessary to look at the rules under Section 43 A while deciding on the constitutionality of rules under Sec 79. The rules under Section 43 A provide that if an intermediary can demonstrate compliance with ISO 27001 certification, he is deemed to have met the requirements laid down for protection of privacy of an individual under Section 43 A.
Thus, section 43 A refers to privacy while section 79 refers to freedom of speech. Both these provisions are interrelated and need to be reviewed for determining the constitutionality issue. The petitioner also challenged the Rule 4 of the Information Technology Rules 2011 (Guidelines for Intermediaries) , the Rules 8,16 of the Information Technology Rules 2009 (Procedure and Safeguard for Blocking for access of information by public) as arbitrary, illegal and unreasonable.
The petitioner stated that these rules limit the internet user’s right to freedom of speech and expression which are guaranteed by the way of Article 19 1(a) of the Constitution and pleads to set them aside. The petitioner also urges the Court to issue guidelines to the Centre before banning of the content by giving prior notice to the owner of the content or the concerned user infusing the principles of natural justice.
The petition also urges after blocking, banning or censoring the content immediately a copy of the order along with the statement of reasons shall be communicated to the owner of the content or concerned user enabling him to seek judicial remedies.
There is also a direction in the petition instructing the ISP (internet service providers) to develop technical competence to block only specified web pages / websites directed by the Courts/ government orders. The petitioner also asked the Court to direct the Centre to remove the deciding and censoring power from the intermediaries and vests such power to bodies like CERT –In (Computer emergency response team of India) appointed by government to ensure uniformity in blocking.