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The Delhi high Court today issued notice in a plea by a lawyer challenging the constitutional validity of various provisions under Rule 3 and 4 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

The Division bench of Chief Justice DN Patel and Justice Jyoti Singh has sought response form the Ministry of Electronics and Information Technology and listed the matter for next hearing on September 13.

The plea filed by Advocate Uday Bedi states that the impugned Rules are liable to be struck down as the same have been made in bad faith and in disregard of the doctrine of separation of powers and checks and balance that exists in a democratic form of government.

The petitioner has further submitted that the rules give private SMIs the power to entertain and act upon complaints received by private persons, as well as on a voluntary basis to delete access to any information available on their platform if the conditions prescribed in Rule 3(1)(b) and 3(1)(d) are met.

By doing so, the Petitioner has submitted that "the Respondent has attempted to overrule the Hon’ble Supreme Court of India’s judgment in Shreya Singhal v. Union of India, AIR 2015 SC 1523 wherein it was held while interpreting Section 79(3)(b) of the IT Act, 2000 that intermediaries cannot be given the power to judge as to which requests for taking down any information are legitimate, and which are not."

The petitioner has further pointed out that "While giving powers in excess of the powers given under the parent legislation, to voluntarily remove access to information that does not conform to Rule 3(1)(b), the Impugned Rules have allowed the SMIs to place the users of these platforms under constant surveillance which is a gross breach of the right to privacy which has been recognised by the Hon’ble Supreme Court of India in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1".

The petitioner has further argued that the power to put the Petitioner and other users under constant surveillance also bears no rational nexus with the objective of the IT Act, 2000 and is therefore in violation of Article 14 of the Constitution of India. IT Act, 2000 does not in any manner give sweeping powers to the intermediaries, therefore, the Rules go beyond the scope of the IT Act, 2000 and sub-delegate powers which the government was not authorized to making the rules ultra vires the IT Act, 2000.

The plea further submits that the Impugned Rules are arbitrary and irrational as they do not prescribe any guidelines with respect to qualification, expertise, experience and judgment skills, or the procedure of appointment of a Grievance Officer or Chief Compliance Officer, as may be applicable, by the SMIs and Significant SMIs who have been given the responsibility of disposing of complaints with respect to any information stored, hosted etc. on computer resource of such intermediary.

"A wide power, to put users under surveillance and to restrict free speech of the citizens has been placed in the hands of a private individual of a private entity which is shockingly disproportionate and completely unjustified", states the plea.

The petitioner has thus sought to strike  down Rule 3 and 4 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, as unconstitutional and ultra vires the IT Act, 2000.

Case Title: Uday Bedi Vs Union Of India and Ors