Bombay High Court: IT Rules Against Constitutional Ethos and Principles

The Union has filed four transfer petitions before the Supreme Court to transfer petitions challenging the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘the IT Rules’) before various High Courts.

On July 9th, 2021, Justice A.M. Khanwilkar and Sanjiv Khanna tagged these four transfer petitions with a petition previously filed by Justice for Rights Foundation seeking stricter content guidelines for Over-The-Top (OTT) streaming platforms such as Netflix and Amazon.

At this hearing the Union sought to stay the proceedings in the High Courts be halted while the Supreme Court decides on the transfer petitions. The Bench refused this prayer.

Hence, various High Courts continue to hear these challenges and the High Courts of Kerala, Bombay and Madras have issued interim orders barring the government from taking action against non-compliance with the rules.

In this post, we discuss the interim order by the Bombay High Court.

The Leaflet and Journalist Nikhil Wagle Challenge Rules 9, 14 and 16, IT Rules

The petitioners before the Bombay High Court are The Leaflet, a digital legal news and analysis platform, and Mr. Nikhil Wagle, a senior journalist. Both challenged Rules 9, 14 and 16 of the IT Rules.

Rule 9 sets up a three-tiered complaints and adjudication system for all digital news media. Including  self-regulation by the agency; self-regulation by a joint body of publishers; and finally an oversight mechanism by the Union government. Rule 9 also requires that all digital news media bodies adhere to a code of ethics contained in the Rules.

Rule 14 establishes an inter-departmental committee comprising various Union ministers. This committee is meant to serve as the third tier in the complaints and adjudication system. It must recommend appropriate action against digital media platforms to the IT Ministry.

Rule 16 gives an authorized officer the power to block digital content as an interim measure in emergencies, without allowing the content host an opportunity to defend the content. The Ministry of Information and Broadcasting must pass the final decision on the blocked content, and may order that the blocking be reversed.

The petitioners claim that these provisions have a chilling effect on their freedom of speech and expression. They argued that it was unconstitutional, and that it grants to the executive branch powers in excess of those contemplated by the IT Act.

Bombay HC Stays Rule 9 (1) and 9 (3)

The Bombay High Court stated that Rule 9 subjects digital media publishers to the Norms of Journalistic Conduct and Programme Code (the Norms), and the Cable Television Network (Regulation) Act, 1995. The Norms are a moral code of conduct, but the Rules make them statutorily mandatory. The Cable Act is meant to control cable television content, and is not made for digital media. The Court also observed that the Information Technology Act, 2000 (IT Act) does not intend to place any restrictions on digital media content, except those contemplated under Section 69. So, Rule 9 was found to be unconstitutional and ultra-vires the parent Act. The Union was directed not to take any action against non-compliance with the Rule.

Notably, Chief Justice Dipankar Dutta and Justice Girish Kulkarni observed that the Rule runs contrary to ‘well-recognised constitutional ethos and principles’. They stated that criticism of all public servants must be invited for the growth of the country. These Rules would leave anyone in fear of legal action for voicing even well-reasoned criticism.

Until the Supreme Court allows the Union’s transfer, the Union is constrained to follow the High Court’s ruling. It is now effectively barred from taking action against any digital media publishers under the IT Rules in the State of Maharashtra.