Analysis of Rule 11
Surprisingly such an important officer under the IT rules 2011 is an invisible man. Normally when legislations create a post which contains judicial powers, mandates the minimum qualifications. In this case the GO is “undefined”. The IT rule 2011 is silent about the minimum qualification, duration, tenure etc available to the GO. The most important concern which will be raised under rule 11 is the nature, manner, powers available and delivery of decision taken by the GO.
GO is nobody as far as the legal system of India is concerned.
1. No proper guidelines for the procedure followed by the GO in deciding and disposing a complaint. Normally to save the trouble and ease up the process the legislature would say “observe principles of natural justice while disposing the matter”. In this case a GO is free to do whatever method feasible for him to reach the decision.
2. Power to call in evidence or is it require calling evidence at all for disposing a complaint is absent. Normal provision will sound like “the authority can exercise the power of a civil court in calling evidence, document etc.”
3. The most important ingredient missing in IT rules 2011 is scope and ambit of decision rendered by the GO.
a. First of all there is no mandatory requirement for delivering the decision in writing. The decision can be in any form at the discretion of GO.
b. There is no direction as to record the reasons for providing while disposing a complaint. Reasoning is perhaps one of the most important aspects of a decision. It ensures the existence of non arbitrariness in the system. In this “I decide to remove such content” is enough to qualify “redressal of complaints” under R 11.
4. Right of appeal is absent in the IT rules 2011.
5. There is no proper procedure as to how to treat a complaint and further proceedings that should be adopted by the GO.
To sum up the so called “complaint redressal system” contemplated under IT Rules 2011 is well there is no proper system.
Analysis of Rule 4 and 11
Under rule 4 an intermediary have minimum periods of thirty six hours to act up on the “information” about the acts contravening rule 3 which is provided by an affected person or the intermediary obtained by its own. Rule 11 read with rule 4 creates a lot of complications.
A GO is appointed with an object to redress the complaint and he should be the person of first instance. If a harmonious construction method is adopted, the intermediary in rule 4 has to be taken as a GO and information should be substituted with complaint. However, such an approach would prove pointless because the time frame mentioned under both rules is substantially different. This leads to the conclusion that both the rules have an independent existence.
Assuming the independency of the rules leads to another set of interpretations. The word “shall” is used in r 4 and R 11 which makes it as a mandatory provision. No scope in resorting to claim the benefit of “intention of legislature” either as the legislature made its intentions pretty clear. The best possible approach is to leave the authorities independent. I do not know the scope and ambit of “intermediary” under rule 4. If a liberal approach is resorted for interpretation, even a letter addressed to a peon can be taken as “information” under the rule.
PS: I hope not hear about an advertisement saying “Grievance officers” are available on an affordable rate and contractual basis, thus embarking an entirely new version of BPO sector in India.