Experts rue draft online gaming rules without Parliament discussion as unconstitutional and only short term

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The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”), initially notified in February 2021, provided a broad and stricter government control over social media platforms, digital news media platforms and on-demand video streaming platforms in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.

These IT Rules were soon challenged across the High Courts on the main contention that they introduce unreasonable restrictions on online free speech and user rights. As detailed here, certain High Courts agreed to provide interim reliefs.

Instead of rectifying the shortcomings, the central government notified the amendments to IT Rules in 2022 providing for an establishment of a Grievance Appellate Committee, which amounts to a government censorship body for free speech. Even these amendments are criticised to be excessive and unconstitutional.

Instead of responding to criticism, the central government went ahead notifying draft rules for public consultation covering online gaming space. Till last week, there was no administrative clarity on the nodal ministry for online gaming. This was clarified by amendments to the Allocation of Business Rules that provided the mandate to MEITY.

But amendments to the Allocation of Business Rules only provide administrative clarity and the concerned ministry needs to act within the scope of the legislative mandate. In this regard, Section 79 of the IT Act, 2000 pursuant to which the rules are claimed to be introduced does not contemplate regulation of online gaming. In fact, no other section in the IT Act contemplates the regulation of online gaming platforms.

The term ‘online gaming’ has not been defined in the parent act nor have online gaming platforms been classified as intermediaries. In fact, the provisions applicable to intermediaries may not be applicable to online gaming apps and websites as they are actively responsible for publishing and providing access to online games to users and play an active role in facilitating online games on their platforms.

By rules, MEITY is trying to introduce a whole set of new definitions not contemplated under the parent legislation i.e., IT Act, 2000. It is a well-settled law that delegated legislation cannot supplant the parent enactment but can only supplement it. Now the proposals by MEITY are supplanting the legislation and introducing definitions which the Parliament did not contemplate while enacting the parent legislation.

In this regard, experts have already raised concerns over constitutional legality and any act of notifying the rules disregarding constitutional issues will only be a short-term victory. Further, the rules can do nothing in relation to the rights of States to regulate online gaming under the garb of betting and gambling for which the rights of the States flow from the constitution. The rules if implemented will only create more ambiguity and bring one additional ministry into play – India’s gambling and betting laws are already a mess.

Noted gaming and technology lawyer Jay Sayta said the rules are overbroad, contradictory, and outsource regulatory functions to private organisations.

“While the need to regulate online gaming websites and apps is almost universally acknowledged and the purpose for which the process of framing an online gaming policy is initiated is well-intentioned, the draft rules are a farrago of confusing and contradictory provisions coupled with lack of backing of a plenary legislation,” he said.

Public feedback on these draft IT Rules is open till 17 January 2023.