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‘Chilling effect on free speech’ — Why Bombay HC stayed certain provisions of new IT rules

In an interim order, Bombay High Court pointed out that Rule 9(1) and Rule 9(3) went beyond the scope of the Information Technology Act and also violated right to free speech.

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New Delhi: The Bombay High Court Saturday partially stayed the controversial Information Technology Rules 2021 noting that certain provisions prima facie went beyond the scope of the Information Technology Act, 2000.

The order came on two sets of pleas, filed by legal news portal The Leaflet and Mumbai-based journalist Nikhil Wagle, which challenged the newly notified IT Rules for being ultra vires of Information Technology Act, 2000 — the act these rules were made under — and for being violative of Articles 14 (Right to Equality) and 19 (Right to Free Speech) of the Constitution.

The 2021 rules were notified on 25 February and supersede the Information Technology (Intermediaries Guidelines) Rules, 2011.

Representing The Leaflet, Senior Advocate Darius Khambata argued before the court that the rules were “ex-facie draconian, arbitrary and patently ultra vires the provisions of the IT Act and the provisions of Articles 14 and 19”.

To this end, the Bombay HC in an interim order stayed Rule 9(1) and Rule 9(3) of the IT Rules.

ThePrint explains the reason behind the stay.

Also read: The meaning of govt’s new IT rules for OTT, digital media & the serious concerns they raise

Two clauses of Rule 9 stayed

Clauses (1) and (3) of Rule 9 are related to the new regulatory regime created by the IT Rules, a large part of which is prescribed in the Code of Ethics in the Appendix to the Rules.

The code states that norms made under the Press Council Act, which determines the standards in print media, and the Cable TV Act, which provides a framework for TV programmes, shall now apply to online publishers as well.

This code applies to two classes of entities — publishers of news and current affairs and publishers of “online curated content” such as OTT (over-the-top) platforms.

Rule 9(1) states that these publishers shall observe and adhere to the Code of Ethics laid down in the Rules.

Meanwhile, Rule 9(3) creates a three-tier regulatory structure that will ensure that the code is adhered to.

This structure consists of three levels — self-regulation by the publishers, a self-regulatory body of the publishers, and an oversight mechanism of the central government.

Advisory norms cannot be made mandatory under different law: HC

The Bombay High Court held that the IT Rules cannot impose an obligation on publishers of online news and online curated platforms to follow provisions that were previously advisory in nature such as the Journalistic Conduct of the Press Council of India under the Press Council Act (PCA).

The HC cited the norms under the Press Council Act and said that the sanction behind them is moral, not statutory.

Furthermore, it observed that the Programme Code under Cable Television Networks (Regulation) Act is mainly intended to provide a framework for the regulation of programmes on television and it would not be proper to subject online publishers to the loosely worded restrictions under the code.

However, the 2021 rules raise the status of both these subordinate legislations to mandatory compliance for online publishers.

The court also said that Section 87 of the IT Act does not allow the central government to frame rules such as Rule 9. This means that the Executive cannot make advisory norms under another legislation mandatory, for a different purpose through a subordinate legislation.

The court, therefore, held the two clauses of Rule 9 to be ultra vires of the IT Act because the authority exercised through it was beyond the power conferred by law.

Also read: Around 1,460 news sites, 40 OTTs submit company details to Modi govt under new IT rules

Clauses violative of Right to Free Speech

The HC said that subjecting online publishers to action under the three-tier statutory regime, enshrined in Rule 9, would have a chilling effect on free speech.

“People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression,” said the HC.

On the importance of holding public figures accountable through criticism, the court said, “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 criticizing”.

In its opinion, it would become quite possible for a writer, editor or publisher to face the risk of punishment if the inter-departmental committee turns out to be not in favour of criticism of a particular public figure.

“They can be hauled up for anything if such a committee so wishes”, the court said.

Tushar Kohli is an intern with ThePrint

(Edited by Rachel John)

Also read: What was the necessity to bring in new IT Rules? Bombay HC asks Centre


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