'Unreasonable Restrictions': Software Engineer Petitions Kerala HC Against Part II of IT Rules

The petitioner says that the Rules are not only ambiguous but also "seek to undermine end to end encryption which is a subset of the fundamental right to privacy."

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New Delhi: A fresh petition in the Kerala high court has challenged provisions of the controversial Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules brought by the Union government this year, noting that parts of the Rules infringe upon constitutional rights of equality before law and freedom of speech.

The plea was filed by software developer and member of the Free Software Community of India, Praveen Arimbrathodiyil, LiveLaw has reported. Arimbrathodiyil has sought the quashing of Part II of the IT Rules which deal with “due diligence by an intermediary” and the “grievance redressal mechanism” called for by the government.

Additional Solicitor General P. Vijayakumar, representing the Union government, said that it was taking steps to file a petition before the Supreme Court. However, Arimbrathodiyil, represented by advocates Prasanth Sugathan, Varsha Bhasker and N.R. Reesha, argued that his plea was against Part II of the Rules, which no party had yet filed a petition against.

The Union government has earlier also filed a transfer plea before the apex court, requesting a stay of proceedings before the Delhi and Kerala high court. Such a stay was refused by the Supreme Court. Petitions challenging various provisions of the Rules are being heard across high courts in the country.

Among news outlets that have challenged the IT Rules are The Wire, The New Minute, LiveLaw, The Quint, Altnews, The Leaflet, the Press Trust of India and 13 media outlets under the banner of Digital News Publishers Association. Two journalists, Nikhil Wagle and Mukund Padmanabhan, and musician T.M. Krishna have also approached courts against the law.

The news organisations and individuals have pleaded that the new IT Rules, either in part or entirely, go beyond the scope of what is permissible under the IT Act and need to be struck down.

Arimbrathodiyil’s petition says that the Rules “exceed the bounds of delegated legislation, place unreasonable restrictions on the exercise of freedom of speech and expression and on the freedom to carry out an online business,” thus infringing upon Articles 14, 19 and 20 of the constitution.

LiveLaw has enumerated some of the grounds of challenge to the Rules in the latest petition. The petitioner says that the Rules are not only ambiguous but also “seek to undermine end to end encryption which is a subset of the fundamental right to privacy as enshrined in Justice K.S. Puttaswamy vs. Union of India (2017).”

In addition, the Rules “draw no intelligible differentia between not-for-profit free and open-source software (FOSS)
communities and for-profit proprietary companies.” They place an inordinate burden of compliance on FOSS services, it says.

The petition also says that the rules contravene the parent Information Technology Act, 2000 – an argument also presented by many petitioners, including The Wire – and that the lack of stakeholder consultation contravenes the government’s own Pre-Legislative Consultation Policy.

The rules are in contravention to Shreya Singhal V. Union of India (2015), the petitioner says and they “prescribe technology-based solutions such as automated tools which would bring in inherent societal biases and prejudices leading to more problems than it intends to solve.”