'Dissent In Democracy Is Vital' : Bombay High Court Stays Enforcement Of IT Rules 'Code Of Ethics' Against Digital Media

The Bombay High Court on Saturday stayed Rules 9(1) and 9(3) of the Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules,2021, which mandate that digital news media and online publishers should adhere to the "Code of Ethics" prescribed by the Rules.The High Court prima facie observed that the said provisions infringe the fundamental right to freedom of speech under Article 19(1)(a) and also go against the substantive provisions of the Information Technology Act 2002.A division bench comprising Chief Justice Dipankar Dutta and Justice GS Kulkarni passed the interim order in the petitions filed by AGIJ Promotion Of Nineteenonea Media Pvt. Ltd , the company that runs the legal news portal 'The Leaflet' and journalist Nikhil Wagle. "In so far as Rule 9 is concerned, we have found it prima facie to be an intrusion of the petitioners rights under Article 19(1)(a). We have also held that it goes beyond the substantive law. Therefore we have stayed clauses 9(1) and 9(3). The rule is not stayed in its entirety", the Chief Justice Dipankar Dutta said while pronouncing the order. This means that Rule 9(2) - which says that a publisher will be liable for consequential action for violating any other law in force - is in operation while Rules 9(1) and 9(3) remain stayed. The "Code of Ethics" under the Rules applied the "Norms of Journalistic Conduct of the Press Council of India" and the "Programme Code under the Cable TV(Network) Regulation Act 1995" to digital media.After the pronouncement of the order, Additional Solicitor General Anil Singh requested for a stay of the order. However the bench turned down the ASG's prayer.No stay of Rules 7, 14 & 16The bench however refused to stay Rules 14 and 16 of the IT Rules 2021.As regards Rule 14, which deals with the constitution of an inter-departmental committee as an oversight mechanism over digital media, the bench noted that the said committee is yet to be constituted. Therefore, the bench opined that there is no "immediate urgency". However, the Court has given liberty to the petitioners to raise their grievances against Rule 14, as and when the inter-departmental committee for oversight is constituted.As regards Rule 16, which deals with the power of the Centre to block access to content, the bench noted that the said provision was similar to Rule 9 of the 2009 Intermediary Rules. Since the petitioners have not expressed any grievance with respect to Rule 9 of the 2009 Rules, the bench said that no case for stay was made out as regards Rule 16.The bench also refused to stay Rule 7, which deals with penalties for intermediaries for violating the Rules.Dissent in democracy is vitalDissent is vital for the functioning of any healthy democracy, however, the new 2021 IT Rules can have a chilling effect on freedom of speech, with a journalist or news publisher having to think twice before criticising the State administration, the Court said in its order."Dissent in democracy is vital. It is, however, the checks and balances that make a democracy work. There can be no two opinions that a healthy democracy is one which has developed on criticism and acceptance of contra views. Opinion based on criticism reinforces its acceptance in a democratic society. For proper administration of the State, it is healthy to invite criticism of all those who are in public service for the nation to have a structured growth but with the 2021 Rules in place, one would have to think twice before criticising any such personality, even if the writer/editor/publisher may have good reasons to do so without resorting to defamation and without inviting action under any other provision of law." The court held that with the Rules operating in their present form, a journalist or news organisation exposes himself to punishment even without transgressing the boundaries of reasonable restriction under Article 19(2) fo the Constitution of India. "Allowing the operation of the 2021 Rules in its form and substance to operate would result in the writer/editor/publisher standing the risk of being punished and sanctioned, should the inter-departmental committee be not in favour of criticism of any public figure. It is, therefore, quite possible that the writer/editor/publisher on contravention of the provisions of clause (1) of Rule 9 of 2021 Rules, but without even transgressing the boundaries set by clause (2) of Article 19 of the Constitution, may expose himself/itself to punishment/sanction under the 2021 Rules." The bench upheld the arguments of the petitioners to prima facie hold that IT Rules can have a chilling effect on freedom speech and go beyond the scope of the IT Act. "The indeterminate and wide terms of the Rules bring about a chilling effect qua the right of freedom of speech and expression of writers/editors/publishers because they can be hauled up for anything if such committee so wishes. The 2021 Rules are, thus,...

'Dissent In Democracy Is Vital' : Bombay High Court Stays Enforcement Of IT Rules 'Code Of Ethics' Against Digital Media

Sharmeen Hakim

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