Introduction
In today’s digital age, every individual has become a “digital citizen,” interacting with various digital intermediaries that shape our everyday experiences online. From social media platforms to e-commerce websites, these intermediaries serve as the bridge between users and the content they consume. As digital interactions and transactions increase, it has become essential for the accountability and redressal mechanisms within these digital spaces to be adequately regulated. To address this growing need, the Government of India introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereafter referred to as IT Rules 2021), under the parent legislation, the Information Technology Act, 2000. One key provision within these rules is the creation of the Grievance Appellate Committee (GAC), which serves as an appellate body for internet users who wish to challenge decisions made by digital intermediaries.
While the intention behind the GAC mechanism is to provide users with an accessible means of redress, questions arise about its constitutionality. This essay seeks to critically analyze the Grievance Appellate Committee mechanism under the IT Rules, 2021, with particular focus on its alignment with constitutional principles, including its consistency with the parent act, the Information Technology Act, 2000, and its implications for the fundamental right to free speech guaranteed under Article 19(1)(a) of the Indian Constitution.
Overview of the Grievance Appellate Committee Mechanism
The GAC mechanism, established under Rule 3 of the IT Rules, 2021, allows users who are dissatisfied with the grievance redressal systems of digital intermediaries to appeal to the GAC. For instance, if a user finds that a piece of content on an OTT platform like Hotstar has violated their sentiments and the grievance is not adequately resolved by the platform, they may appeal to the GAC. This appellate process forms part of the larger digital regulatory framework meant to ensure that users have a forum to address grievances regarding content on various digital platforms, including social media, e-commerce websites, and OTT services.
The GAC is structured into three levels, which are intended to handle increasingly serious complaints:
- Level 1 involves self-regulation by the publisher, where intermediaries must appoint a grievance redressal officer to handle disputes related to content, including issues like fake news or inappropriate content.
- Level 2 establishes self-regulatory bodies, such as the DMCRC for OTT platforms, where grievances can be escalated for further investigation and resolution.
- Level 3 allows for government oversight, with the Ministry of Broadcasting and Information intervening in cases involving content that threatens national security, public order, or religious harmony.
Despite its intent to create a more accountable system for digital intermediaries, the composition and functioning of the GAC, especially at higher levels, have raised concerns about its constitutionality.
Constitutional Concerns Regarding the GAC
The constitutionality of the Grievance Appellate Committee must be evaluated from multiple angles, most notably its consistency with the Information Technology Act, 2000 and the fundamental rights enshrined in the Indian Constitution.
Consistency with the Parent Act: The Information Technology Act, 2000
One of the main issues with the GAC mechanism is that it appears to exceed the powers granted under the Information Technology Act, 2000. Under Section 79 of the Act, intermediaries are granted safe harbor protections, provided they follow due diligence procedures. However, the IT Rules 2021, specifically Rule 3, impose additional due diligence requirements that are not found in the parent act. The segregation of intermediaries into two categories—Social Media Intermediaries and Significant Social Media Intermediaries—further complicates the legal framework, as this classification has no basis in the original Act. Such a division, along with additional compliance requirements, seems to go beyond the scope of Section 79 and Section 89 of the parent legislation, raising concerns that the rules are ultra vires, or beyond the powers granted to the government under the Information Technology Act.
Impact on Fundamental Rights: Article 19(1)(a) – Freedom of Speech
Another serious constitutional concern is that the GAC mechanism could infringe upon the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution. The broad powers granted to the government in terms of content moderation and the composition of the GAC could lead to censorship, stifling dissent and criticism of the government or other powerful entities. As the Internet has become a vital space for free expression, it is crucial that any regulatory mechanism, such as the GAC, respects and protects the fundamental right to free speech. Without appropriate judicial oversight, the GAC’s decisions could be seen as an attempt to regulate speech in a manner that is inconsistent with the constitutional protections afforded to individuals.
The Composition of the GAC and the Role of Judicial Oversight
One of the most problematic aspects of the GAC mechanism is its composition. At present, none of the levels of the GAC include any judicial authority. The body is largely made up of retired executive officials, including former naval officers, police officers, and banking heads. This raises significant concerns about the lack of judicial oversight and independence in the functioning of the GAC. As the S. Manoharan case clearly establishes, any hearing conducted without judicial members lacks the requisite authority and expertise, rendering such proceedings void ab initio. The GAC’s reliance on executive officials to carry out judicial functions violates the principle of separation of powers enshrined in Article 50 of the Indian Constitution, which mandates the separation of the judiciary from the executive.
Moreover, since many violations under the IT Rules can result in criminal penalties under the Indian Penal Code (IPC), the lack of judicial expertise in the GAC process becomes even more concerning. Judicial members would provide critical oversight, ensuring that decisions are based on the rule of law and not influenced by executive overreach.
The Need for Judicial Scrutiny and Independence
To address the aforementioned concerns and ensure that the GAC mechanism operates in a manner that is both constitutional and effective, it is imperative that the composition of the GAC be revised. Specifically, all three levels of the GAC should be chaired by a judicial member with expertise in constitutional law and digital regulation. This would ensure that hearings are conducted fairly and in accordance with the rule of law, while also upholding the fundamental rights of digital citizens.
By incorporating judicial oversight into the GAC process, the government would be taking a significant step toward ensuring that its digital redressal mechanism aligns with constitutional principles. This would also help in mitigating concerns about censorship and undue restrictions on free speech.
Conclusion
The Grievance Appellate Committee, as envisioned under the IT Rules 2021, raises serious constitutional concerns that must be addressed to preserve the integrity of India’s democratic principles. While the objective of regulating digital intermediaries is important, it is crucial that such regulatory frameworks are designed in a way that respects the fundamental rights of individuals and adheres to the constitutional structure of the country. To this end, revising the composition of the GAC to include judicial members at all levels would be a necessary step in ensuring that the system works within the bounds of the Constitution. As the digital space continues to evolve, it is essential that the regulatory mechanisms keep pace with the new realities of the virtual world, while remaining grounded in the principles of justice, fairness, and free expression.