Trying To Bring Back Section 66A Through Backdoor Entry: Plea In Karnataka HC Challenging IT Rules, 2021

BACKGROUND

• Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021(IT Rules, 2021) were implemented by the Central Government in February 2021 under the IT Act, 2000.
• These rules aim to establish the government's oversight over social media and OTT platforms and allow the social media platforms to place their users under constant surveillance and share their data with the government when asked for.
• Section 66A of the Information and Technology Act that made posting offensive comments online a criminal activity and punishable by jail was struck down by the Supreme Court in 2015.
• • The plea before the Karnataka High Court against the IT Rules, 2021 states that the government is trying to bring back Section 66A through the new Rules.

PETITION BEFORE THE COURT

• The petition filed before the Karnataka High Court sought to declare Rule 3 (1) (d) and Rule 7 of the new IT Rules, 2021 unconstitutional and ultra vires of IT Act, 2000.
• The petition stated that the organs of government have time and again upheld the Fundamental Rights but there have been measures taken and amendments passed contrary to FRs and one such recent amendment made by the government is the IT Rules, 2021 which violates Article 19 (1) (a) of the Constitution.
• It further stated that several words mentioned in the rules are not clear and indefinite and it is possible that they will be interpreted and misused due to lack of boundaries and lack of proper interpretation.
• The plea stated that a comparison between Section 66A which was struck down and Rule 3 (1)(d), showed that the rules are trying to bring additional grounds to curb the Freedom of Speech and Expression.

RULES CHALLENGED

• Rule 3 (1)(d) states that an intermediary on whose platform the information is stored, hosted, or published shall not hold such information that is prohibited under laws, after receiving the actual knowledge in the form of an order by a court or on being notified by the appropriate government.
• Rule 7 states that where an intermediary fails to comply with the Rules, it shall be liable to punishment under any law in force, including the provisions of this Act and the Indian Penal Code.
• Rule 3 is challenged on the ground that is trying to bring back struck down Section 66A of the Act and by insertion of Rule 3 (1) (d), the government is taking over the power of the judiciary.
• Rule 7 is challenged on the ground that it is against the principle of “special law will prevail over the general law” and the law laid down by the Supreme Court in SharatBabuDigamarthi v. Government of NCT of Delhi, where it held that a person will be charged for offences only under IT Act and no other laws as it is wide enough to cover all types of offences in electric form.

ORDER

• The Division Bench of Chief Justice Abhay Oka and Justice N S Sanjay Gowda issued notice to the Central Government.
• It directed them to file their statements of objections by 3 September 2021.

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