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A plea has been moved by Journalist Nikhil Mangesh Wagle, challenging the new Intermediary guidelines, 2021 on the pretext of it being violative of Right to Privacy under Article 21, and inconsistent with the Information Technology Act, 2000 (Parent Act).

Grounds inter-alia preferred by the Petitioner:

1. Rules Not Reasonable – therefore manifestly Arbitrary;
2. Part II of the Impugned Rules are framed under Section 87(2)(zg) IT Act, 2000, which deals with grant of safe harbour protection, that is, exemption from liability to intermediaries under Section 79(1) of the IT Act – Part II in effect has resulted into arbitrarily extending the scope of Section 79 itself. This implies that the said rules are ultra vires the parent Act.
3. Concept of Traceability violates Privacy.
4. Rule 4(2) is outside the scope of Section 69(3), IT Act, 2000.
5. Rule 7 gives excessive powers to the enforcement agencies to take action against intermediaries and making it liable for punishment under ‘any law for the time being in force’ – This will have serious repercussions because even in cases of defamation / hurt religious sentiments, etc., criminal proceedings will be initiated. It gives the Compliance Officers with quasi-judicial powers of deciding what is/is not defamatory.

It is also the contention of the petitioner that the inter-departmental committee formed under the impugned rules is not an independent agency - Rule 14(5) gives the power to the said Committee to issue orders for Warning/Censoring/Apology and likewise.

Further, The criteria of separating social media intermediary from Significant social media intermediary has provided high level of discretion to the Government and it is apparent that such a classification brings in services such as Google Docs, Practo, Naukri etc. also under the control of Government.

“Impugned Rules violate Article 19(1)(g) as the same are not reasonable restrictions as envisaged under Article 19(6) since the said rules are neither in the interest of general public nor do the same deal with professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business,” plea states.

Questions of Law raised by the petitioner:

1. Whether Intermediary Rules, 2021 are violative  of Right of Privacy as held by the Supreme Court in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1?
2. Whether the Impugned Rules are against the object and purpose of the IT Act, 2000?
3. Whether the Impugned Rules arbitrary, illegal, irrational and unreasonable and contrary to the provisions of Articles 14, 19(1) (a), 19(1) (g) and 21 of the Constitution?
4. Whether in issuing the Impugned Rules, the concerned delegatee has exceeded its jurisdiction under Sections 87(1), 87(2)(z) and 87(2)(zg), IT Act, 2000?
5. Whether the Impugned Rules issued under Sections 87(1), 87(2) (z) and 87(2) (zg) of the IT Act has no statutory backing and the same cannot become part of law?
6. Whether the Impugned Rules open to the scrutiny of this Hon’ble Court and the same are liable to be declared invalid?
7. Whether in issuing the Impugned Rules, the Respondent has exceeded its rule making powers, not only Section 87 IT Act but also under the Constitution?

Case Title: Nikhil Mangesh Wagle v. Union of India