CHENNAI: Carnatic singer TM Krishna on Thursday moved the Madras High Court challenging the constitutional validity of the new Information Technology rules introduced by the Central government. While the new rules have been at the centre of the storm, Krishna's detailed petition has argued that the rules are framed vaguely. This coupled with the threat of criminal prosecution will have a chilling effect on freedom of express and privacy. He said this will lead to
self-censorship.
The new rules -- the Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code Rules), 2021 -- were notified by the union government on February 25. The new rules had put much responsibility on the social media platforms, including identification of the first originator of information on their platforms.
Krishna's petition argued that many aspects of the rules are “arbitrary, vague, disproportionate and unreasonable" and hence, unconstitutional and ultra vires to the Information Technology Act of 2000.
The first bench comprising Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy admitted the plea and directed Additional Solicitor General R Sankaranarayanan to file a detailed report on the plea in three weeks.
In his petition, Krishna argued that ,"A reading of the Code of Ethics contained in the Impugned Rules makes it impossible to glean what will be considered by the Union government as acceptable speech in the online world. In any event, it is submitted that determining what is acceptable isn't the sole prerogative of the government. It is a role that ought to be fashioned in accordance with the constitutional scheme, which the rules manifestly fail to do."
He said due to the vague nature of the Code of Ethics, the intermediaries like social media platforms will censor artistic work. "My apprehension today is that the work that I produce in trying to reshape art and in dissenting from the conventional mores of society will fall foul of the Code of Ethics contained in the Impugned Rules. Indeed, publishers of online curated content, facing the threat of sanctions imposed by Part III of the rules, are likely to err on the side of caution,” the petition stated.
The rule also mandates social media intermediaries to enable the identification of the first originator of information. This is possible only by 'fingerprinting' every message and defeating end to end encryption of users' messages. Krishna argued that by enabling traceability, the new rules have ended anonymity in the internet, a right that is otherwise an intrinsic facet of privacy. While this is meant to investigate crimes committed by a minuscule minority, privacy of every user is compromised in the process by opening the entire chain of communication to surveillance, Krishna argued.
Krishna said the rules affect his rights as an artist and a cultural commentator. “I submit that the impugned Rules offend my rights as an artist and a cultural commentator by both imposing a chilling effect on free speech and by impinging on my right to privacy.”
“For me, privacy, like the music itself, is an experience. When I think of privacy, I think of life, intimacy, experience, discovery, security, happiness, the lack of fear and the freedom to create. I think of liberty, dignity and choice as facets inherent in me and not just as an artist but as a human being,” he added.
Krishna's petition highlighted one of the points in the Code of Ethics: it directs publishers to "take into consideration India's multi-racial and multi-religious context and exercise due caution and discretion when featuring the activities, beliefs, practices and views of any racial or religious group." The rules also empower an Inter-Departmental Committee to recommend removal of content that is "offensive to a person's religious belief". He said the Constitution's Article 19(2) permits no such restriction on such a speech.
Recalling the landmark verdict of the Madras high court in the Perumal Murugan case, Krishna argued the new rules goes against the duty of the State to protect artistic speech. He said the new rules "run contrary to the obligation to protect free speech and are tantamount to the dereliction of this state by instead requiring artists to sensor in the name of law and order."