A new normal: Governing by rule, not by law

Some union governments are remembered for implementing economic reforms, others for questionable defence deals, and yet others for their indecisiveness. The legacy of the current Union government will be its imagination—specifically, how it has reimagined ways to bypass parliamentary scrutiny of legislation and transformed the law-making process.

For instance, with the three farm laws, the government craftily avoided debate and a poll in the Rajya Sabha and hastily passed the laws with a voice vote. Similarly, the methods employed to remove Article 370 of the Constitution were, at the very least, ingenious. It has also passed several non-financial laws, including on Aadhaar, as money Bills to circumvent the Rajya Sabha. Another such method has now come to light, involving delegated legislation. 

This method involves framing rules and regulations ostensibly under the powers delegated to the government by a statute but which go far beyond the statute's scope. This often avoids parliamentary scrutiny altogether and allows the government to usurp the law-making powers reserved for Parliament or legislatures by the Constitution. While some of these rules and regulations are required to be presented before Parliament and could, theoretically, be discussed, modified, or rejected, they usually pass well below the radar. The government has now begun using this tool to effect sweeping changes in the law—changes that should ordinarily have been subjected to parliamentary processes and deliberations by elected representatives.

A recent example is the proposed amendment to the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, aimed at regulating AI-generated content.

The proposed amendment casts substantial obligations on entities providing generative AI services, as well as on significant social media entities, such as Facebook and YouTube, which host AI-generated content uploaded by users.

These rules may be a well-meaning attempt to rein in misinformation and prevent personal and public harm caused by deepfakes. But attempting to do so through government rule-making under the IT Act, without any meaningful parliamentary debate, is imaginative at best and perverse at worst. This is not a procedural issue. The amendment effectively legislates on a subject as vital as freedom of speech and has far-reaching consequences. Yet, it does not follow the constitutional process designed for such matters. 

The amendment is proposed to a set of rules—the 2021 rules—that impose requirements on platforms which, if complied with, grant immunity from liability for third-party content. Essentially, a platform remains free from liability for unlawful content hosted or transmitted through it, provided it complies with these rules. These rules were framed under Section 79 of the IT Act, popularly called the ‘safe harbour’ provision. The safe harbour was designed in 2000 to allow businesses to operate without fear of liability for hosting unlawful user-generated content. Accordingly, the rules framed under Section 79 impose certain duties on platforms as a condition for remaining liability-free.

The government has now proposed an amendment to these rules, implying that services such as ChatGPT, Gemini, and Perplexity will be eligible to remain liability-free if they police AI-generated content. For this, the government has prescribed certain duties of policing and designated generative AI service providers as entities eligible to obtain safe harbour. However, the safe harbour was designed for those entities which did not play a role in perpetuating unlawful content and acted as a mere conduit. It was not designed for services such as ChatGPT, Gemini, and Perplexity, which take users’ content and materially transform it into something clearly distinguishable from the users' input. 

If the government seeks to treat the role performed by ChatGPT, Gemini, and Perplexity as that of a mere conduit, it is for Parliament to approve such a change. Parliament, when enacting the safe harbour provision, could not have envisaged the inclusion of these entities within its scope. Yet, the government has decided to bypass this discussion and is approaching this subject through rules that are unlikely to be debated in Parliament. As a result, an important discussion on artificial intelligence—a subject that will define the latter part of this century—has been effectively bypassed from parliamentary consideration. 

It is immaterial what might have happened had the matter been placed before Parliament, or whether the government would ultimately have prevailed. Ideally, Parliament should serve as a forum to consider issues on the horizon, evaluate ways ahead, debate and deliberate on views of different stakeholders, and choose the best path for our society.

Even if the Parliament is unable to perform these functions satisfactorily, or if the end result remains unchanged due to a parliamentary majority enjoyed by the ruling dispensation, the act of the government sending proposals for legal changes with wide ramifications to the Parliament for necessary action is itself important, as it vindicates values of representative democracy and separation of powers enshrined in the Constitution, enables effective regulation, develops citizen confidence, builds business trust, and is the foundation for sound judicial decision-making. A bypass through rules is, ultimately, a bypass of these values.

(The writers teach law at O P Jindal Global University)