The petition filed through advocate Rakesh B Bhatt claims that the rules are ultra vires the Information Technology Act, 2000, in as much as they set up a classification of publishers of news and current affairs content and seek to regulate the news portals under part III of the rules. It is said that imposing a code of ethics which stipulates such vague conditions as 'good taste', 'decency' etc are not envisaged by the parent act (IT Act).
The petition states that the challenge is limited to the IT rules 2021 to the extent it affects the digital news portal and not with reference to publishers of online curated content i.e. OTT media platforms or any other entities sought to be regulated by the impugned rules.
The petition seeks to declare the rules as unconstitutional and ultra vires on the following grounds:
The purport to virtually legislate on the conduct of entities is not even within the purview of the parent act. It is said "In the present case, though the parent act deals with electronic data/record, the object and purpose of the parent act, is primarily to provide for legal recognition of such electronic data/record, recognise means of electronic communication, authenticate and establish conditions in which electronic data/record could be considered as evidence, and to recognise offences committed through the use of computer resources. Therefore, the parent act does not recognise digital news media as a separate category of entity and does not seek to subject them or their content to any set of special regulations," the petition said.
Further, it is said that Section 69-A is a limited and specific emergent power as described by the Supreme Court in the case of Shreya Singhal. The impugned rules cannot therefore purport to regulate digital news portals by requiring them to abide by the code of ethics. In doing so the rules extend the application of Cable Television Networks (Regulation) Act and Press Council Act.
It is also said in the petition that the IT Rules expand the scope of the parent Act even more by providing for a "code of ethics and a three-tier regulatory system" and administering a loose-ranging code of ethics that contains extremely wide and vague terms such as "half-truths", "good taste" and "decency".
This apart, the impugned Rules attempt to proscribe content on the basis of vague and subjective grounds which the Supreme Court has already voided when it struck down Section 66-A of the parent Act in Shreya Singhal v. Union of India.
It is also said that "IT rules have been issued under section 87(2)(z) and (ZG). The rule making power under section 87 (2)(zg) is with respect to guidelines for intermediaries, therefore the impugned part cannot be sources to section 87 (2)(zg) since the impugned part applies only to non-intermediaries such as publisher of news and current affairs content and publishers of curated content which are both distinct from intermediaries as defined and understood in the Parent Act.
The petitioner also noted that the IT Rules 2021 provide for an oversight mechanism for digital news portals, which includes setting up of an inter-departmental committee which has the power to hear grievances regarding compliance with the said Code of Ethics.
However, as the Rules are framed under the parent Act, the former cannot set up an adjudicatory mechanism parallel to the courts of law. This is completely beyond the object and scope of the parent Act.
Fourth Challenge to new IT Rules
Earlier this month, Delhi High Court had issued notice to the Central Government on a petition filed by the publisher of 'The Wire' challenging the new Rules.
The Kerala High Court has restrained Union from enforcing Part III of the Rules(which deal with digital media) against LiveLaw while issuing notice on a petition filed by it.
Recently, the publisher of 'The Quint' also moved the Delhi High Court against the Rules. The Delhi High Court will consider the petitions of 'The Wire' and 'The Quint' in the second week of April.