Last month, the Ministry of Electronics and Information Technology (MeitY) notified an amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“the Rules”) – in exercise of its powers under Section 87 of the Information Technology Act, 2000. Through this notification, the MeitY established the Grievance Appellate Committee (GAC) [Rule 2(1)(ka)] as an executive body to hear appeals against the decisions taken by Grievance Officers of social media intermediaries (SMIs) [Rule 3A]. Vested with the power to refer the dispute to any manner of technical experts as it sees fit [Rule 3A(5)], and with the Rules not hinting at any adjudicatory standards or procedural necessities for the resolution of such disputes/appeals – the GAC can pass subsequent orders that shall be binding on the concerned intermediaries [Rule 3A(7)]. Within the larger (and more controversial) context and operation of the Rules since February 2021 – the GAC can be a manifestation of the State’s overt policing of digital free speech.

In this piece, I endeavour to critique such a carte blanche approach to institutional adjudication – by first, highlighting the free-speech costs of an executive-appointed appellate forum; second, discussing the logistical and technical limitations of the GAC as established by the Amendment; and, third, suggesting an alternative in the form of platform-sensitive guidelines to provide adjudicatory standards of grievance redressal.

The consultation paper for the Amendment noted that the grievance redressal mechanism under the existing Rules was not satisfactory; more specifically, the MeitY claimed that – “grievance officers of intermediaries either do not address the grievances satisfactorily and/or fairly” and that an appellate forum was needed “to protect the rights and interests of users.” There is some truth to this claim considering that several SMIs dragged their feet in complying with the Rules’ mandate (IFF Report), potentially because of their pending claims against the Rules themselves (WhatsApp, Twitter, others). Nonetheless, by the time the amendment was brought to public notice, SMIs such as Twitter and Meta had already brought their businesses in compliance with the Rules.[1]

In this context, the establishment of a GAC with Government appointed members, and a wide mandate to scrutinize intermediary decisions with the power to order the removal thereof – merits greater consideration. Foremost, the Executive is stepping in to adjudicate the terms of settlement of what are essentially breaches of contractual terms of use. Insofar as these breaches also constitute

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criminal offences, the Executive is also creating a convenient forum to charge, adjudicate and punish offending content without any actual judicial scrutiny. Without such scrutiny, the Executive will essentially be able to sidestep the process encoded in Section 69A of the Information Technology Act, 2000 (“IT Act”)[2] – allowing it to access privileged data on the targeted users, even in cases where the conditions of criminality and the bona fides of investigation are suspect.

Further, in the absence of any technical or judicial guidelines or foresight in this regard, the GAC is likely to adopt a singular adjudicatory approach towards all forms of content across all SMIs. First, such conflation subsumes the contextual nuances of a user’s ‘offending’ act. For instance, consider the difference between posts on Instagram and Facebook, messages on WhatsApp or Messenger, and a Tweet; and then, the difference between sharing, forwarding or re-tweeting. The Rules are unclear on whether users may be liable for cross-posting/sharing offending content across platforms for the purpose of critique (whether journalistic or otherwise). Further, SMIs may continue offer such content as an archival resource; their liability for the same is nebulous as well.

Second, SMIs with multi-utility service offerings (such as Google) would be treated the same as other SMIs with a different service model entirely (say, WhatsApp or Twitter).[3] While the SMI may internally appreciate the difference in its service offering across verticals controlled by separate holdings, a GAC may not understand that it is required to deal with different user activity across different platforms differently.[4] For the GAC it might be the same “user” who needs to be blocked at the source – resulting in the GAC exceeding its jurisdiction and over-policing activity across different platforms.

A platform-agnostic GAC would necessarily be less sensitive to these important contextual factors. In any case, the sheer volume of grievances raised before the SMIs would make it logistically unfeasible for the GAC to equally and satisfactorily apply its mind to appeals, even if a small percentage of the grievances are escalated. Even when applying its mind, the GAC is also likely to be overzealous in addressing these grievances, irrespective of their original frivolity and triviality. Effectively, a complaint being taken up by the intermediary ipso facto implies that it is not trivial, frivolous, or mala fide. No subsequent remedial action to correct for the frivolity of a complaint is contemplated by the Rules.

Concurrently, deputing SMIs to develop their own standards for ‘frivolity’ on the basis of which to

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dismiss complaints allows them to be selective about the complaints they want to take up. Without an order of the Grievance Officer to appeal against, even the GAC doesn’t seem to have the jurisdiction to entertain complaints deemed ‘frivolous’ by an intermediary at first instance without an adjudicatory order.

One alternative to creating an additional tier of unfocused grievance redressal is, to prescribe more robust standards to resolve grievances in the first instance. Platform-specific guidelines –about the nature of the content, the modes in which it appears, and the course of grievance redressal action available to intermediaries– become relevant as they can lay down the contours of liability that an intermediary must assume in moderating, regulating, and acting on such content. Let’s say, the Government prepares specific regulations to take down social media content for a clearly articulated reason. First, the instrument of these regulations could itself become impugned in judicial review, allowing scrutiny of the free speech restrictions created thereby; second, platforms and users will be able to adjust their expectations and conduct accordingly; third, platforms will be able to deploy tools to deal with the relevant content proactively; and, fourth, the government will be able to deal with platforms that do not take any proactive/remedial measures specifically related to such content. Discernably, augmenting the substantive process of grievance redressal can generate greater value than an uninspired modification in institutional design.

In this manner, the invigoration of adjudicatory standards can inform more meaningful appellate bodies such as those in the telecommunications sector. With a two-tier, self-administered, low public cost adjudicatory system operating under a light-touch regulatory authority, which prescribes cogent standards of adjudication – the telecom model could alleviate the administrative costs of the GAC. This can be done without compromising the crucial role it can play in the social media space. But this is a matter that warrants separate attention, especially in light of the Draft Telecommunications Bill. At present, it is sufficient to note that the GAC as it has presently been established – is likely to complicate a multi-stakeholder problem while creating liberty costs for digital free speech. It is imperative that such a volatile institutional fixture is revisited to better align it with how SMIs function and the contemporary digital user behaviour they witness. Without such technical familiarity with social media, the GAC is ill-equipped to make any orders moderating content thereon.

Introduction

After much deliberation, the government released the draft Digital Personal Data Protection Bill (‘the Bill’) in November, 2022. One of the most ‘celebrated’ features of the draft was the use of ‘she/her’ pronouns instead of the typical ‘he/him’ to refer to an individual, irrespective of gender (s 3). This initiative was dressed as an ‘innovative step’ towards women’s empowerment. On the face of it, this move seems to change the universal usage of masculine pronouns in law. What it does not change, however, is the myopic view of the law that is oblivious to gender expression through pronouns apart from ‘he’ or ‘she’.

This piece questions whether this move is worth celebrating when the government could have used more inclusive pronouns. It also underscores how the law subsumes multiple gender identities within the framework of gender binary pronouns. Further, the piece looks at the drafting practices of other countries to suggest what the government can do to be more gender inclusive.

The Pronouns of the State: He, She, and They

The male-centric language of the law has favoured masculine pronouns over feminine ones. To affirm this, look no further than the Constitution of India which does not use a single feminine pronoun. There are only a few instances where the letter of the law provides visibility to women. This happens primarily in gender-specific laws such as the Protection of Women from Domestic Violence Act, 2005. In general laws, however, the masculine pronouns predominate. The General Clauses Act, 1897 stipulates that words referring to the masculine gender will be deemed to include females (s 13). This implies that feminine pronouns are simply not necessary when they can be substituted by masculine pronouns. In this context, the use of ‘she’ and ‘her’ in the Bill seems praise-worthy. However, this does little to change the status quo which actively excludes non-binary gender identities from the language of the law. Most laws use masculine pronouns even to refer to female individuals while disregarding non-binary gender identities altogether. The DPDP simply adds an ‘s’ to the existing dominant pronoun because it does not give visibility to the gender expressions that exist beyond one particular pronoun. In the Bill, the pronoun ‘she’

has subsumed the identity of non-binary individuals, the way masculine pronouns had subsumed the female identity. The move is indeed ‘innovative’ so far as the use of a new pronoun is concerned. However, it is not a ‘step’ anywhere. Despite the multiplicity of gender identities and expressions, the Bill continues to fit all identities into a binary framework. This begets the question: why did the government not use gender-neutral pronouns like ‘they/them’?

Why Gender-neutral Pronouns Matter in Drafting Laws?

The use of ‘she/her’ in the draft proves that the state sees only two pronouns and does not give visibility to non-binary forms of expression. Currently, the central laws in India do not use gender-neutral pronouns. One may argue that laws are equally applicable to all gender identities. Hence, it does not make a difference if the letter of the law uses binary pronouns. The issue is not about the applicability of the law. A more fundamental issue is the invisibility of non-binary gender identities in central laws. The state has failed to provide equal visibility to ‘them’ vis-à-vis ‘he’ and ‘she’ while drafting laws. Because non-binary individuals may not fit the gender-specific language of laws, their recourse to justice is often impeded by state officials. For instance, the gendered provision of rape under IPC (s 375), which states that only a woman can be raped, has been misused by police officials to discriminate against transgender persons. In Ms. X. v State of Uttarakhand, the investigating officer refused to submit a charge sheet under ‘rape’ when approached by a trans person. The state contended that she was ‘biologically’ a man; that she was a ‘he’ (¶ 3). Although the court granted her relief, this case highlights how hostile the language of the law is towards non-binary individuals. The state’s reluctance to provide equal visibility to non-binary people can have wider socio-legal consequences. The state maintains that people who do not fall within the binary framework are to be treated differently than those who do. The Transgender Persons (Protection Of Rights) Act, 2019, for instance, prescribes a maximum punishment of two years for sexual abuse against a transgender person (s 18). Contrasting this with the punishment for rape under the IPC (s 376), which can extend to life imprisonment, reveals that sexual abuse against a transgender person is not ‘grave’ enough. Further, the issues of non-binary persons continue to be invisible in official data.

Despite estimating a population of over 4,80,000 individuals who do not identify with binary gender identities, the state does not include data from non-binary persons in major nationwide surveys such as National Family Health Survey and Periodic Labour Force Survey. In the absence of data, the state cannot address the socio-economic issues specific to non-binary persons.

Admittedly, using gender-neutral pronouns in legislation will not, by itself, resolve the concerns highlighted above. However, it can make legal protection more accessible and inclusive without subjecting non-binary individuals to discrimination. The UN guidelines on gender-inclusive language have recognised that language plays a major role in shaping cultural and social attitudes. What makes the use of ‘they/them’ important in drafting laws is that the language of legislation has state approval. Given the discrimination faced by the non-binary community, the state’s use of gender-neutral pronouns can help make society more inclusive and acceptable to non-binary individuals.

The Way Forward to an Inclusive Legal Drafting

The use of gender-neutral pronouns in legislation is not an uncommon drafting practice in other jurisdictions. Various draft bills tabled before the United Kingdom parliament contain gender-neutral pronouns to refer to a person. Further, in 2019, the Office of the Parliamentary Counsel of the UK released guidelines for gender-neutral drafting. At present, the use of ‘she/her’ in DPDP appears to be a one-off instance. This is confirmed by the Multi-State Co-Operative Societies (Amendment) Bill, 2022 introduced in December, 2022. Here, the government has reverted to its favourite cherry-picked pronouns: ‘he/his’. However, even if the use of feminine pronouns becomes a norm, it will do little to provide social acceptance to non-binary individuals who do not wish to be represented by gender-specific pronouns. What India requires is a drafting guideline that completely avoids using gender-specific pronouns in all central laws, orders, regulations, and official correspondence. Rather than reverting to gender-specific pronouns, the government should provide visibility to non-binary individuals through gender-neutral drafting. A change in the language of the law can create an equal space where non-binary identities are not overshadowed by ‘him’ or ‘her’.

The present piece tries to enumerate threefold contentions vis-a-vis the search and seizure of electronic gadgets of a person accused of a crime. Firstly, it highlights the jurisprudential underpinnings of search and seizure under the Code of Criminal Procedure (‘CrPC’) and other legislations. Secondly, it focuses upon the present-day trends and discussions on the substantial subject matter, guidelines, and recent landmark cases apropos the search and seizure of electronic gadgets in India. Thirdly, it highlights the privacy issue which remains ignored in many judgments and guidelines, and the overlap between the power to search and the right to privacy which is felt especially when adequate procedural safeguards are not put in place. Finally, the paper offers a concluding remark reaffirming the need for adequate provisions for the search and seizure of electronic devices in light of the right to privacy.

Dis-satisfaction demonstrated by the Supreme court

India’s law on search and seizure of Electronic devices during investigations has come under scrutiny once again as recently the Supreme Court imposed a cost of Rs 25,000 on the Central Government for not filing the response to the PIL petition filed by Ram Ramaswamy (a retired JNU professor) and other academicians requesting the Apex Court to issue directions to the police and the other investigating agencies working under the aegis of Central and State Government regarding the seizure, examination, and preservation of personal digital and electronic devices and the contents within.

Notably, the Supreme Court in August also showed profound dissatisfaction over anaffidavit filed by the Union Government in response to the PIL filed by the group of academicians, wherein the government merely contended that the present plea is not maintainable without mentioning appropriate grounds. The Court further directed the Central Government to furnish another affidavit within six months. A similar petition was recently filed by a group of journalists and has been tagged as the first one, moved by the Foundation for Media Professionals and assisted by the Internet Freedom Foundation, demanding the framing of proper guidelines on the search and seizure of digital devices. The reason speculated for this sudden commotion on framing proper guidelines for appropriate search and seizure of e-devices is the recent seizures made by Delhi police while conducting searches at the residents of the editors of ‘The Wire’.

The police seized all the mobile phones and other electronic devices that they deemed fit for investigation.

Furthermore, the irregularities in the controversial arrest of Journalist Md. Zubair attracted the attention of the potential stakeholders in this issue. In sum, the police summoned Zubair in a POCSO case and arrested him altogether for a tweet made four years ago which categorically did not have any communal outcome. Further, the police seized his other devices, such as laptops and mobile phones, which were completely unrelated to the present case. This reflects the ambiguity in the present law under which the police in India are provided with ample powers to seize any device they feel will strengthen the case.

Statutory Underpinnings with respect to search and seizure

The present law regarding search and seizures, inter alia, for the purpose of criminal investigation, is dealt with in detail in the Code of Criminal Procedure, 1973 (CrPC). Section 93 of the CrPCmandates a magistrate to issue a search warrant for any ‘document or thing’ and also provides a warrant for general search in the area only for investigation purposes. Section 94 of CrPC confers the power to issue a warrant to authorize the search of any place which is suspected to contain stolen property, forged documents, etc, and to take certain action in respect of the same.  

However, Section 100 provides the procedure for searching closed places and the person in charge of the closed place is obliged to allow the police for such purpose. Other provisions include Section 165 and section 51 which confer powers upon a police officer, to conduct a search of a place without a warrant. Lastly, Section 102 provides power to the police officer to seize property on certain grounds as suspected by the officer.

Pertinently, various other enactments are also present that provide for the search and seizure of digital devices such as the Income Tax Act, 1961, Customs Act, 1962, Competition Act, 2002, and Companies Act, 2013. Further, Section 3 of the Indian Evidence Act, 1872  talks about evidence which also includes ‘electronic evidence’, and the Information Technology Act 2000, added electronic evidence to the laws of India.

The Privacy Dilemma

It is quite practical to assume that digital devices in today’s age are considered extensions of one’s interior life rather than simple accessories.

Thus, when it comes to search and seizure, the present legislation (i.e., CrPC), along with special laws, does not stand its ground on holding the reasonable exercise of the power of the enforcement agencies consistent with the fundamental right to privacy. There exists an evergreen conflict between the state authorities’ power to conduct search and seizure and an individual’s right to privacy. The landmark case of K.S. Puttaswamy v. UOI is the first in India which explicitly held that the right to privacy of an individual is a fundamental right. Thus, there must not exist any shred of doubt in respecting the privacy of an individual while construing search and seizure provisions. However, the standard of scrutiny under the search and seizure provisions which restrict privacy is still unclear and thus the call for putting in place an extensive procedural safeguard to protect an individual’s right to privacy is justified in every essence of it. 

This extravagant power of police has been cemented further by two recent judgments of the Karnataka and the Kerela High Court. The former deals with the sandalwood drugs case wherein the accused was arrested by the police, and the investigating agencies also got an order from the Trial Court directing the accused to provide access to the phone by unlocking the device. The Court further ordered Polygraph Test on the ground that the accused had been lying about the passwords of his phone during the investigation. The accused challenged the order of the Trial Court at the High Court and cited his right to privacy and the right against self-incrimination.  However, the High Court upheld the Trial Court order. While granting the order, the Court completely overlooked the observation made in the case of Selvi v. State of Karnataka, wherein it was held that no Court can compel the accused to undergo a Polygraph Test unless consented by the accused himself. In the latter case, the Kerela High Court also observed that the accused cannot refuse to hand over their devices to the police citing the right to privacy.  

Conclusion Both the judgments completely ignored the fact that any data that can be accessed on a person’s phone would fall under the broad ambit of ‘Testimonial Compulsion’ against which article20(3) of the Indian Constitution seeks to protect. To conclude, there is a need to bring about a specific set of guidelines or proper legislation on the procurement of electronic devices given that the arbitrary actions of investigating agencies violate the citizens’ fundamental rights.