'Consensus And Collaboration'

Speaking on the statutory motion for resolution that the Information Technology (Intermediaries Guidelines) Rules, 2011 be annulled.

Kapil Sibal: Mr. Vice-Chairman, Sir, first of all, I want to congratulate the Mover of the Motion, Rajeeveji, for having brought these rules to the attention of the House. We have had a very informed debate. The Leader of the Opposition has, in his inimitable style, agreed with the broad contours and architecture of the rules, but has cautioned the Government, and rightly so, that the restrictive words in the rules might lead to an interpretation, which, in turn, might lead to harassment and impact on the fundamental right of free speech. I think there can be no doubt about that. I, on behalf of the Government, can assure this House that this Government does not stand for censorship; this Government does not stand for infringement of free speech. Indeed, this Government does not stand for regulation of free speech.

Now, why are we discussing this issue today in the context of rules that have been framed? Sir, we are dealing with a new medium. If you have the print medium and you have the electronic medium, all the companies who provide information through the print medium and electronic medium are registered in India, they are subject to Indian laws. But in the context of new medium, which is the internet, there is no registration of any of these mediums in India, and, therefore, they are not subject to Indian laws. If there is a terrorist attack that takes place and source of it is in some other part of the world and we wish to seek information about the source of that terrorist attack, it is not provided to us on the ground that they are not subject to Indian law. If people are trading in drugs, these are the cases that have happened in courts; actually people have gone to courts. If somebody is trading in a certain kind of psychotropic substance, the information is on the net. You say, please remove that site from the net and please inform us as to who are the persons behind it, the response is that they are not subject to Indian law. Now, I am not saying that we should subject them to Indian law per se but I am saying that these are very serious issues that arise in the course of the functioning of the State. I am sure that all the distinguished Members of this House will realize that many of these have impact on the security of the State, many of these things impact public order. If you have certain sites on the internet, which are incendiary, which are hate speeches, what is the mechanism to deal with it? Now if you look at the Acts and rules you will realize that we have not infringed on the rights of the media at all. There is no government intervention in any of this. Let me, Sir, just point out and I will finish very quickly because you want to go on to the other matter, kindly look at section 66 (a) of the Act, punishment for sending offensive messages through communication, this is now a substantive provision of the Act. I am not talking of section 69 but of section 66 (a) - punishment for sending offensive messages through communication, any information that is grossly offensive as a menacing character shall be punishable. This is provided in the substantive Act. We are not talking of the rules here. This is the substantive provision of the Act which has been passed by the Parliament. Section 66 (b), punishment for dishonestly receiving stolen computer resource, let us leave that; punishment for identity theft, you impersonate somebody, that is identity theft. That is the substantive provision of the Act. And the rules we are talking about are in the context of these substantive provisions. There is excessive delegation of legislation here. The mover of the Motion read only section 69, but I am reading some of the other substantive provisions which indicate that all these rules are consistent with the provisions of the Act. Punishment for cheating any impersonation by using computer resource- the Leader of the Opposition talked about how impersonation can be, but it is a substantive offence. It is not something that is in the rules. The rules are in aid of the substance which is part of the statute. Punishment for violation of privacy which again is substantive provision; punishment for cyber terrorism, section 66 (f), again is a substantive offence; punishment for publishing or transmitting of obscene material in an electronic form is a substantive offence. Then you go on to section 69. So, the point I was trying to make is that there is a host of substantive provisions in the Act which declare substantive offences and the rules that have been framed are consistent with the Act.

So, the argument that the mover of the Motion has made is that this excessive delegation, with great respect, has no substance. The second argument is that you are, actually, infringing; that the Government is trying to control the media. Now, Sir, let me indicate what the Act says; we will go to the rules a little later. Section 79 says, “Notwithstanding anything contained in any law for the time being in force but subject to the provisions of subsections (2) and(3), an intermediary shall not be liable for any third party information, data or communication link made available or hosted by him, the provisions of sub-section (1) shall apply, ( c ) this is important -- if the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.” So, the inter-mediary will not be liable subject to two things – due diligence and following such guidelines as the Central Government may make in that behalf. That is part of the Act; it has nothing to do with the rules. Now what is ‘due diligence’? That is what is prescribed in the rules. Therefore, if you look at sub-section 2, rule 3 of the rules framed under section 79, rule 3 is about ‘due diligence’ - due diligence to be observed by intermediary. It is not Government’s interference. Government is not taking any action. But what is the ‘due diligence’ that the intermediary should observe? What is that? Such rules and regulations, terms and conditions or User Agreement shall inform the users. That means the intermediary must inform the users. The Government is not going to interfere in any of this. It is the ‘due diligence’ of the intermediary that is now being defined in the Act, which is the substantive provision of the Act, under section 79. So, he will inform the user of the computer resource not to host, display, upload, modify, publish, transmit, update or share any information that belongs to another person; that is impersonation; that is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy; that harms minors, infringes patent, trademark, copyright or other proprietary rights, violates any law for the time being in force, and impersonates another person. The Leader of the Opposition talked about ‘prevents investigation of any offence or is insulting any other nation.’ Why did this ‘prevents investigation of any offence’ come about? It came about because of sub-rule 4. Sub-rule 4 says: “The intermediary on whose computer system the information is stored.” Supposing it deals with drugs. I am just giving an example. “.. or hosted or published upon obtaining knowledge by itself or been brought to actual knowledge by an affected person - - it is not necessarily the Government; it could be anybody – in writing or through e-mail, signed with electronic signature about any such information, as mentioned in sub-rule 2 above, shall act within 36 hours and where applicable, work with user...” Who will act? Not the Government! If I provide an intermediary with information about a drug which is a psychotropic substance, which is being traded on the Net and which is being brought to India, then, in that situation, that information is given to the intermediary, and he must act within 36 hours, and, where applicable, work with user or owner of such information to disable such information. I pause here. This is the intermediary’s decision; it is not the Government’s decision. The intermediary can say ‘no’. There is no prescription that he has to remove. There is no direction that he has to do what the Government says. The prescription is, we inform him that that is what is going on; please do some thing about it in 36 hours. He may write to us saying, or he may inform us, that there is nothing wrong with him. There is nothing that the Government can do. So, this impression ‘that it is the Government which is interfering in the freedom of expression’ is completely erroneous. The Government is informing the intermediary, consistent with his obligations of due diligence, under section 79 of the Act, that you are required to exercise due diligence when it comes to some of these things.

But it is your choice. Where you want to work with the person who supplied the information, work with him where applicable and do what you want to do. Where does the Government come? Where have we interfered with that infringement? Where have we infringed the Right to Freedom of Expression? Nowhere; because the Government is not in the picture. The Government is only saying that this is the kind of due diligence that is expected out of it. So, this impression ‘that the Government is wanting to do something and wanting to restrict the right is unfair.’

Then, I was coming to what the Leader of the Opposition mentioned. And, Sir, it further says, ‘.... information to disable such information that is in contravention of sub-rule (2). Further, the intermediary shall preserve such information and associated records for, at least, 90 days for investigation purposes.’ Now, why did the question of investigation come that prevents investigation of any offence? That’s because if the information is relating to a drug or terrorist act, he must preserve that information. Otherwise, how do we prosecute? If he immediately remove that information and doesn’t pass it onto Government, how will the Government investigate? That is why in sub-rule (4), ‘prevents investigation of an offence came in.’ So, there, again, I would like clarify it to the learned Leader of the Opposition that it is in this context that where there are offences of this nature, the source and the material must be preserved for a period of, at least, 90 days so that if the investigation agency in India wants that information to investigate and prosecute, it can access to it. If we don’t have this provision, we will never be able to prosecute. These are essential things. You know, I don’t want a full debate on it. But I am just indicating to you that there is no attempt by Government to interfere in ‘Freedom of Expression.’

Now, I come to the other point that my good friend raised, and I just want to point this out. Incidentally, I might mention that every jurisdiction in the world has these provisions, and I can point out law after law. Every jurisdiction in the world has it, including the US, including Europe, and I have these provisions with me. Of course, we are more liberal -- and we are proud of it -- than Europe and we are more liberal than the United States of America, and I am proud of that. But the fact is, let’s not cut our arms in order to ensure that they do justice.

Now, Sir, the other point that I want to make is, I have the guidelines; and whatever has been set out is consistent with the guidelines of the Net Providers themselves. Take, for example, the guidelines of Yahoo. What do the guidelines of Yahoo say? It is the same thing that ‘please, you agree not to use.’ What are we saying? ‘You agree not to use’ -- Yahoo services to what? It is, ‘Upload, post, email, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libellous, invasive of another’s privacy, hateful or racially, ethnically or otherwise objectionable.” This is much wider than our prescription, much wider. This is their own advice to their own users that please don’t do this. So, if we, in Government, advise the intermediary, it’s a violation of ‘freedom of expression.’ If the Net Provider advises its own user, it is nothing. Yet, I understand the sentiments of the House, and I request you to look at Article 19(2) of the Constitution of India. What are the words used in the 19(2)? It says, “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interest of the sovereignty and integrity of India, -- there is no problem in that -- the security of the State, friendly relations with foreign States ...” Instead of saying ‘abusive of a foreign State’, you can use ‘friendly’, we will change that; there is no issue. Then, it further says, ‘... public order, decency ...’ Sir, does the Constitution define ‘decency’? Nobody defines ‘decency.’ The Constitution has not defined ‘decency.’ Ultimately, what happens? If there is an issue of decency, it is decided by the courts? So, there will be expressions like ‘morality’. The word ‘morality’ is also used – ‘decency or morality’

What is 'moral'? The Constitution does not describe it, but who decides it? It is the courts of law. Sir, incidentally, these rules were cleared by the Committee on Subordinate Legislation. These are not executive rules framed by us. There were four meetings of the Committee on Subordinate Legislation and the rules were cleared by the Committee on Subordinate Legislation. So, it is not as if Parliament has not overseen these rules, and, not only that; we called for industry participation. I have the recommendations from the CII. The rules were put to the CII. The rules were put to the Data Security Council of India and other organizations. I have their comments. It is only after all this discussion happened, and they cleared it, that we brought the rules. So, it is not as if some officials in the Government of India and our Department decided to have these rules. No; it was done with full participation of everybody. In any case, I request distinguished Members of this House to please, write to me on any issues that they are concerned about, and I assure the House, I would take those issues into account. I will also call the Industry. I will have a full discussion on the subject; I will call distinguished Members of the House so that, after a full discussion, whatever emerges, I can implement it. I am sure that that would satisfy distinguished Members of this House and the mover of the Motion and we can all agree on a course of action because, under this new media, there would be several challenges that this nation would face, and we should be ready for those challenges. That can only be done through consensus and collaboration.

Thank you very much.

P. Rajeeve: Sir, in the beginning, I have mentioned that in the Act itself there are some provisions. My question is: what is the litmus test to examine whether a rule is in accordance with the parent Act. That is the question we are discussing while considering a statutory Motion. I am totally in agreement with the remarks of the Minister about the Act. It was passed by the Parliament. But, Sir, what is an objectionable content? It has been mentioned in clause 69A. Now, clause 69A is in accordance with article 19(2) of the Constitution. The Minister must not look at this clause in isolation. It is specifically mentioned in clause 69A what objectionable content is, and it is in accordance with article 19(2)(a). My submission is, while the Minister explained that, the question is about clause 3(2). This clause, from (a) to (j), explains what an objectionable content is. It goes beyond the provisions of clause 69 of the Act. That is the basic question. The reply given by the Minister is not satisfactory on that point.

With regard to privacy thing, that is, 3(7), it is actually against the Act, which specifically mentions what are the provisions for getting information from a user. It specifically states that. The Government framed the Rules. I invite the attention of the hon. Minister to the other Rule. There are certain provisions in the Rule for the intervention of the Government for blocking contents. For getting information from a user, there are certain other rules. The Minister says that this is not a mandatory thing; there is no Government intervention. But, Sir, this is actually private censorship. But we are going to the words used in this Rule. 'Due diligence to be observed by intermediary', you look at it. There is 'shall' everywhere. While in the legislative process, we can find out several 'may'. But here, all are 'shall'. Recently, one organization posted contents to seven websites like Google, Twitter, Facebook, etc. Thereafter, the same organization sent a complaint saying that this is against the Rule. Within 36 hours, these all seven intermediaries removed the contents without any enquiry. That is the reality. Finally, Sir, actually it is Government intervention and private censorship. That is private censorship. What is the reality in other countries? I would not like to take more time on that. Digital Millennium Copyright Act is actually related to copyright. But, in that Act itself, there is a provision. It is 'put back' provision, by which contents can be restored. If a counternotice is sent by the author of the contents unless the copyright holder files a suit within ten days. That is Digital Millennium Copyright Act. There is a 'put back' provision. That type of provision is not existing in the Rule. While coming to the European Union, I would not like to take more time explaining the provisions

My question is: As per the Section 88, there is a provision for consultation with an Advisory Committee. It has been constituted. It may be right. But there were only two meetings in 2000. What is the rule of this Advisory Committee? As per the Act, "The Central Government........ either generally as regards any rules or for any other purpose connected with this Act." Now, the Minister claims that the Government has taken several steps in consultation with the industry and other stakeholders. But this is the mandatory provision in this Act. It may be true that the Government has taken several steps and discussed it with stakeholders. But this is mandatory as per the Rule. Why is the Government not taking the advice of the Advisory Committee for framing these Rules? Sir, 3(2) and 3(7) are totally against the Act. They are ultra vires of the Act. Considering the sense of the House and the issues that we have raised, the hon. Minister should consider all these things and come with an amended Rule within a time frame. Till that time, it should be kept in abeyance.

Arun Jaitley: Can the hon. Minister give an assurance to this House that the Rules, after this broad-based discussion, will be relooked at, and if there are any words therein, which require to be replaced or removed, the Minister would replace or remove them? Are you agreeable for that?

Kapil Sibal: My assurance to this House is that I will request distinguished hon. Members to write letters to me objecting to any specific words. I will then call a meeting of the Members as well as the industry and all the stakeholders. We will have a discussion and whatever consensus emerges, we will implement it.