'IT Rules Within Legislative Competence Of MeitY': Centre Files Affidavit In Bombay High Court Opposing Stay

The  Union Government has filed a reply affidavit before the Bombay High Court opposing any interim relief to the petitioners who have challenged the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) saying that any relief may have a spiralling effect and "result in spread of fake news and legally prohibited content."

The affidavit filed by Amarendra Singh, Deputy Secretary in the Union Ministry of Information and Broadcasting (MIB), says that the Rules are only to create a "level-playing field" between the online and the offline media and are the "same as the norms for traditional news publishers (Print and TV)."

"It is also submitted that an interim stay on the implementation or operation of Part-III of the Rules would render the legally established institutional framework for digital media publishers inoperative, leading to an environment of impunity, and concomitant spread of fake news and legally prohibited content. It is further submitted that such a situation may not only cause harm to the citizen's right to correct information, but also impact the efforts being made by various stakeholders towards development of a safe online news media ecosystem," the affidavit reads.

The affidavit cites various legal precedents to show that there is a presumption in favour of a legislation and a court need not interfere at the interim stage simply because "some arguable point is raised, which persuades the courts to consider the controversy."

It is also argued in the affidavit that the scope of Information Technology Act includes regulation of electronic records which are in the nature of media records, and hence the IT Rules are within the competence of the Union Ministry of Electronics and Information Technology(MeitY). This is in response to the petitioners' argument that the Part III of the IT Rules are ultra-vires because the IT Act does not contemplate regulation of digital media.

"The scope of Information Technology Act includes recognition and regulation of electronic records which are in the nature of media content, and therefore, Part III of the Rules is within the ambit of the Act. In this regard, it is submitted that from the perspective of scope of the Rules, the Rules are well within the legislative competence of MeitY", the affidavit states.

Earlier this week on Monday, a Division Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni heard a petition filed by AGIJ Promotion Of Nineteenonea Media Pvt. Ltd petition, the company that owns the digital news platform 'The Leaflet', and a PIL filed by journalist Nikhil Wagle for interim reliefs, to stay the Rules. During the hearing the Court expressed inclination to grant interim reliefs citing absence of any affidavit by the Union Government before any of the High Courts in the country, despite there being an order from the Calcutta High Court from June this year.

Additional Solicitor General Anil Singh, then, sought time for two days to file a short affidavit opposing interim reliefs, while saying that a detailed affidavit could be filed within three to four days.

AGIJ has alleged that the Rules are draconian and can have a "chilling effect" on free speech and therefore has sought a declaration that the rules are ultra vires so far as they apply to news publishers and a stay on their operation in the interim.

Wagle has alleged that the Rules provide "unfettered powers to the executive to direct the intermediaries to delete or modify or block the relevant content and information generated, transmitted, received, stored or hosted in their computer resource for public access" and seeks that the Rules to be declared arbitrary, illegal, irrational, unreasonable and violative of a citizen's fundamental rights under Article 14, Articles 19(1)(a), 19(1)(g) and Article 21 of the Constitution of India.

The MIB's response affidavit states that the Rules can be divided, broadly, into three parts – part I defines various governing aspects and entities that are covered under the rules; part II is about due diligence by intermediaries and grievance redressal mechanism being administered by the Ministry of Electronics and Information Technology (MeitY); and part III is Code of Ethics and Procedure Safeguards in relation to publisher of news and current affairs content and publishers of online curated content on digital media being administered by the MIB.

With respect to publishers of news and current affairs content, Part-lll of the Rules has three broad features – a Code of Ethics which requires adherence, by the digital news publishers, to the Norms of Journalistic Conduct of the Press Council of India under the Press Council Act, 1978; Programme Code under section 5 of the Cable Television Networks Regulation) Act, 1995; and prohibits them from publishing content which is prohibited under any law; a three-tier Grievance Redressal Mechanism, for redressal of grievance related to violation of the Code of Ethics, with two levels of self-regulation- Level I being the publisher, and Level II being the Self Regulatory Body and the third level being the Oversight Mechanism under the Ministry of Information & Broadcasting; and furnishing of information by publishers to the Govemment, and periodic disclosure of grievances received by them.

The affidavit states that over over 1,800 digital media publishers, with over 97% of them being publishers of news and current affairs content, have furnished information to the MIB, including the petitioner AGIJ, which has also established Grievance Redressal Mechanism and appointed Grievance Officers.

On the issue of "excessive compliance burden under the Rules for attending to a large number of grievances within a timeframe of l5 days," the affidavit says that till date the Government has not received any representation from any particular digital news publisher citing the exact number of grievances received by it relating to the Code of Ethics and the difficulty faced by it in the redressal of grievances.

Specifically with respect to AGIJ, the affidavit states their website mentions that it has only received two grievances so far and redressed the same.

"Furthermore, it is hereby submitted that the significance of self-regulation under Part-III of the Rules is evident by the fact that till date, there has not been a single case requiring the intervention by the Oversight Mechanism. It is also submitted that since the notification of the Rules, the Ministry has not issued any single order, direction, or advisory to any digital news publisher, including the petitioners."

The petitioners had relied upon the interim orders passed by the Kerala High Court in the petitions filed by LiveLaw and News Broadcasters Association against the IT Rules. The High Court had passed interim orders restraining coercive action against LiveLaw and NBA under Part III of the Rules.

In this regard, the Union has argued that the interim orders passed by the Kerala High Court cannot be relied upon as they are passed without reasons, without recording any violation of fundamental rights of the petitioners, and ignoring SC precedents on presumption of constitutionality of subordinate legislation.

It is also stated that the special leave petitions have been filed in the Supreme Court challenging the interim orders of the Kerala High Court.

Further, the Centre informed the Bombay High Court that it has filed transfer petitions in the Supreme Court seeking transfer of all High Court petitions challenging IT Rules to the Top Court, and the petitions are likely to be listed soon.

"In light of the above, it is respectfully submitted that based on the legal precedents, facts of the present case, and the potentially spiralling impact of decision in this Court on the various related matters being heard by the Hon'ble Supreme Court, the prayer for interim and ad-interim reliefs by the petitioners be declined", the affidavit stated.

The petitions are being heard by the Bombay High Court today.