The government’s own legal advisors had also raised concerns about the new IT rules, but these were overruled, it said in May.

The Ministry of Information and Broadcasting (I&B) and the Secret Service Bureau (IB) both stated in official documents that no existing law in India empowers the government to regulate online content and that a new law needs to be passed for this purpose. The morning context Con reported on the basis of documents obtained under the Law on the Right to Information

Despite this objection, on February 25, the government announced the Information Technology (IT) Rules 2021, which will govern social media platforms, digital news publishers, and online streaming platforms. The government has repeatedly stated that the rules were enacted under the existing powers of the Information Technology Act 2000. However, the I&B ministry drew up a draft cabinet note in July 2020 stating that the IT law is not intended to regulate content on electronic devices, but a new law is needed. The Intelligence Bureau also found IT law inadequate to regulate online streaming and video platforms and wanted a “law-based regulatory framework” to address this problem, the report said.

Currently, the new rules are being challenged by several courts across the country, with petitioners arguing the same. “The observations of two important parts of the central government seem to confirm the correctness of the criticism of the new IT rules,” says the report.

Office of Prime Minister involved

The documents received from The Morning Context also show that officials in the Prime Minister’s Office and Prime Minister Narendra Modi themselves were involved in changing the Rules of Procedure and IT rules to enable the government to regulate online content. The assignment of business rules was changed in November 2020 to make digital news publishers and online streaming platforms subordinate to the I&B ministry. Later, the provisions of the IT rules relating to these platforms fell within the purview of the Ministry of I&B rather than the Ministry of Electronics and Information Technology.

“The PMO and the IT ministry appear to have been interested in regulating online content by quickly changing the rules rather than taking the longer but more consultative route of a parliament-backed law,” the report said.

This was also advised by the government’s legal advisers

Two of the government’s own legal advisors warned that the new IT rules were outside the scope of the law and required parliamentary approval, but Legal Secretary Anoop Mendiratta overruled this advice for “the greater public interest”, Article 14 reported in May.

This advice was given in January and February last year and concerns a draft version of the rules that did not include provisions for streaming platforms and digital news publishers. On the basis of the documents received under Article 14, the Ministry of Justice’s advisors did not appear to comment on the inclusion of OTT platforms and digital media in the IT rules, but noted that “there is no specific provision in the IT law that (sic) to impose a penalty or take criminal action against the intermediary or digital media. “

A deputy legal advisor to the Department of Law and Justice warned MeitY last January that first make “appropriate changes” to the IT Act 2000 before the new IT rules are announced. Later in February 2020, a joint secretary and legal advisor to the Department of Justice wrote a three-page note expanding the advice of the assistant legal advisor. The joint secretary noted that the new rules “add broad breadth to the duties and functions of the intermediary” and “appear to go beyond the scope of the information, data or third party communications that they provide or host”. The joint secretary also reminded the government that the executive branch “has no power to convert a certain act into a criminal offense and impose a penalty” and that the rules “suffered from the vice of excessive delegation”.

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