As first reported here, the Ministry of Electronics and Information Technology (MEITY) today has proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Guidelines”). The draft amendments propose to introduce provisions for online gaming under Part II of the Rules. This is pursuant to MEITY being designated as a nodal ministry for online gaming last week.

The Intermediary Guidelines notified in 2021 are in itself controversial with constitutional challenge pending before the Supreme Court.

After the government notified the Intermediary Rules, at least 17 different challenges to the constitutionality have been filed before various High Courts by individuals, associations and organisations. As reported by Internet Freedom Foundation (IFF), the Central Government in May 2022 filed transfer petition with the Supreme Court, asking for challenges across the High Courts to the Intermediary Rules to be transferred to the Supreme Court. The operation of certain provisions under the Intermediary Rules were stayed by Bombay and Madras High Courts. Kerala High Court restrained the government from taking any action under the Intermediary Rules against the petitioner LiveLaw.

Interestingly, today’s draft rules seek to amend these Intermediary Rules which are under challenge. In a series of tweets, IFF said the rules vest vast powers with the Union Govt to classify online gaming platforms as intermediaries and exercise regulatory power for KYC without any clear legal basis.

Since the IT Act, 2000 does not expressly contemplate the regulation of online gaming entities, their regulation via such Rules issued by the executive, without parliamentary deliberation, is misguided, undemocratic, and may even be unconstitutional. 5/6

— Internet Freedom Foundation (IFF) (@internetfreedom) January 2, 2023

IFF said since the Information Technology Act, 2000 does not expressly contemplate the regulation of online gaming entities, their regulation via such rules issued by the executive, without parliamentary deliberation, is misguided, undemocratic, and may even be unconstitutional.