Speakers at MediaNama’s discussion on IT Rules and the Future of Online Speech in India on April 23 said the Centre’s proposed Rule 3(4) in the draft IT Rules would significantly expand executive powers by allowing the Ministry of Electronics and Information Technology (MeitY) to issue binding advisories, guidelines, and standard operating procedures to intermediaries, bypassing both Parliament and the judiciary.
The proposed amendment says intermediaries must comply with advisories, clarifications, guidelines, circulars, and standard operating procedures issued by MeitY as part of their due diligence obligations under the IT Rules or risk losing safe harbour protections. Panellists argued this would convert soft law instruments into binding obligations without legislative scrutiny.
Advisories vs law
Rakesh Maheshwari, former Senior Director and Group Coordinator of MeitY’s Cyber Laws Division, distinguished between directions and advisories. “As long as there are conditions which have been stated, that they have to be issued in writing, they must clearly provide the statutory provision in the rule; maybe they should be considered. But in respect of advisory, I have a different opinion because advisory is per se advisory in nature. It cannot be considered part of the rules,” he said.
Maheshwari added that while “guidance, directions, SOPs are all valid”, advisories should remain advisory. He also questioned the legal basis for such a move, saying, “To that extent, maybe from a law perspective, it is an invalid proposition.”
Allows the Executive to bypass Parliament
Rahil Chatterjee, Principal Associate at Ikigai Law, said the proposal effectively allows the executive to create binding law without following the legislative process laid down under the IT Act. “You can call it whatever you want. If it is to have the binding force of law, it must be issued under 87 in that framework. If it is not issued in that framework, it is advisory,” he said.
He said advisories serve an important purpose by communicating the government’s interpretation of the law and allowing companies to plan compliance. However, he warned that Rule 3(4) changes that function entirely. “The ability for the executive to bypass the legislature to make binding law impacts every digital business,” he added.
Chatterjee said the impact of Rule 3(4) would extend far beyond social media platforms. “Tomorrow, you’re going to have an advisory saying, hypothetically, a cloud service provider must do XYZ. An e-commerce platform must do XYZ. It is linked to the safe harbour. That is the real fear in 3(4)” he said.
He pointed to the government’s March 2024 advisory on AI models, which was later withdrawn after industry pushback, as an example of why advisories should remain non-binding. “The fact that they came out with an advisory and could take it back is exactly the purpose of soft law,” he said. “With 3(4),…
Source link
Disclaimer
We strive to uphold the highest ethical standards in all of our reporting and coverage. We blogs.grocliq.com want to be transparent with our readers about any potential conflicts of interest that may arise in our work. It’s possible that some of the investors we feature may have connections to other businesses, including competitors or companies we write about. However, we want to assure our readers that this will not have any impact on the integrity or impartiality of our reporting. We are committed to delivering accurate, unbiased news and information to our audience, and we will continue to uphold our ethics and principles in all of our work. Thank you for your trust and support.
Website Upgradation is going on for any glitch kindly connect at [email protected]
