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IT Rules 2021 Manifestly Unreasonable; Bring Chilling Effect On Free Speech : Bombay High Court Stays Digital Media Code Of Ethics Enforcement

Sharmeen Hakim
14 Aug 2021 4:49 PM GMT
IT Rules 2021 Manifestly Unreasonable; Bring Chilling Effect On Free Speech : Bombay High Court Stays Digital Media Code Of Ethics Enforcement
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Dissent 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 criticizing the State administration, the Bombay High Court has said. The court observed thus while staying Rules 9(1) and 9(3) of the Information Technology (Guidelines...

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Dissent 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 criticizing the State administration, the Bombay High Court has said.

The court observed thus while staying 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.

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.

"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, manifestly unreasonable and go beyond the IT Act, its aims and provisions.

A democracy would thrive only if the people of India regulate their conduct in accordance with the preambular promise that they took while giving to themselves the Constitution. Liberty of thought is one of such promises. Exercising this liberty, expressions take shape.

Should at least a part of Rule 9 of the 2021 Rules be not interdicted even at the interim stage, it would generate a pernicious As it is, the constant fear of being hauled up for contravention of the Code of Ethics is a distinct possibility now.

People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles. This regime would run clearly contrary to the well-recognised Constitutional ethos and principles.

"We are prima facie of the opinion that Rule 9 does not conform to the statute, namely, of the Information Technology Act as also it is an intrusion into the fundamental rights guaranteed under Article 19(1)(a) of the Constitution of the publishers," the bench observed.

Rules on digital media beyond the substantive power of Information Technology Act.

The Court also made a prima facie observation that the Rules relating to digital media are beyond the substantive powers of delegated legislation given to the Union Government by the Information Technology Act.

"In our opinion, neither clause (z) nor clause (zg) of sub-section (2) of Section 87 under which the 2021 Rules are framed would confer any power on the Central Government to frame a provision in the nature of Rule 9. Thus, in our prima facie opinion, Rule 9 appears to be ultra vires the provisions of the IT Act being beyond the delegated power".

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

 Rule 9 infringe freedom of speech and expression

"This apart, Rule 9 also prima facie appears to be infringing the constitutional guarantee of Freedom of Speech and Expression as conferred by Article 19(1)(a) in subjecting the publishers of newsand current affairs content and publishers of online curated content subject to action under the statutory regime of the Press Council Act and the Cable TV Network(Regulation) Act, which provides for an independent mechanism for any violation of the provisions of such legislation. We prima facie find much substance in the contentions as urged on behalf of the petitioner that such transgression of powers occupied by different legislations cannot be disrupted by a subordinate legislation".

The Court also observed that the present case justified making an exception from the general presumption of constitutionality of a legislation.

"In our opinion, for the purpose of interim relief, the present challenge would be required to be regarded as an exception to the general rule of presumption in favour of constitutionality of Rule 9 inasmuch as for the above reasons, we are prima facie of the opinion that Rule 9 does not conform to the statute, namely, of the Information Technology Act as also it is an intrusion into the fundamental rights guaranteed under Article 19(1)(a) of the Constitution of the publishers".

The court observed that the sanction for guidelines under the Press Council of India Act laying down standards of journalistic conduct is moral and not statutory.  However, under the recently notified IT Rules, adherence and/or observance of moral standards in the code has been exalted to the status of a mandatory compliance.  This would mean that violation of the guidelines would expose a person to more rigorous action than what was envisaged under the PC Act, which is impermissible.
"It is, therefore, incomprehensible as to how by a subordinate legislation, contravention of such code laying down standards of moral behavior, could validly be made a ground for attracting action of the nature specified in Rule 14(5) of the 2021 Rules", it said.

No stay of Rules 7, 14 & 16

The 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.

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