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Centre using ministries to sidestep Section 69A safeguards: X to K'taka HC
In a revised petition moved on Tuesday, X said that a content takedown template had been provided by MeitY to several Union ministries, state governments, and the Director General of Police of various jurisdictions in India, to issue blocking orders, which fell outside the established processes of content takedown under Section 69A of the IT Act.
The Sahyog portal of the Ministry of Home Affairs, which X termed the 'censorship portal' in its plea, is illegal because it creates a quasi-judicial body by executive fiat and also because it usurps judicial functions, the social media platform argued.
It told the court that a quasi-judicial 'process' under the censorship portal, wherein any Central or state executive officer could unilaterally adjudicate whether information was 'unlawful' and direct its removal under threat of loss of safe harbour protection, created a quasi-judicial body because executive officers within the 'censorship portal' exercised powers to determine 'unlawfulness' and impose prejudicial consequences.
The MHA's Sahyog portal, which X calls 'censorship portal' throughout its plea, is arbitrary, opaque, and violative of Articles 14 (right to equality) and 19 (freedom of speech and expression) of the Constitution, the company argued.
X further contended that Rule 3(1)(d) of the IT Rules of 2021 was unconstitutional as it exceeded the limitations set by its parent statute, the IT Act, and thus violated the settled principles that subordinate legislation cannot exceed the limits of its enabling Act.
Rule 3(1)(d) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 states that an intermediary, upon receiving actual knowledge of unlawful content through a court order or a notification from the appropriate government or its agency under Section 79(3)(b) of the IT Act, must not host, store, or publish such information. This rule is connected to Section 79, which provides intermediaries with protection from liability for user-generated content, but this protection can be revoked if they fail to remove unlawful content after being notified.
Centre's reply
In response, the Centre vehemently denied that the ministries are issuing notifications at the behest of MeitY. The Centre explained that many government departments/ministries have a NIC office or officer deputed only for ease of functioning related to IT infrastructure, which is managed by NIC at the national level. This does not mean that NIC was directing the functioning of all the ministries, departments and courts, it said.
The Central government further added that X was merely trying to conjure non-existent wrongdoing to bolster its arguments. Defending Rule 3(1)(d), the Centre said that it had sufficient safeguards to prevent misuse.
The first proviso to Rule 3(1)(d) states that notifications under the rule may only be issued by the authorised agencies notified by the appropriate government.
The requirement imposed on internet intermediaries not to 'host, store or publish' any unlawful information under Rule 3(1)(d) does not amount to a blocking order, the Centre said, adding that in case the intermediary continues to host, store or publish such information, the only change is that it cannot claim immunity under Section 79 and therefore may be prosecuted in court about that particular information.
The 'lifting' of safe harbour could in no way be equated to the blocking of information, the Central government said. X's reliance on the Kunal Kamra case was also misplaced because Article 19 talks about the rights of a user of an intermediary platform, not of an intermediary themselves, the Centre said.
The Karnataka High Court is hearing X's plea against the Centre, challenging unlawful content regulation and arbitrary censorship.
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