Bombay High Court: The Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., while addressing the petitions challenging the IT Rules, 2021 expressed that
Dissent in democracy is vital.
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.
Instant petitions challenged the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 on the ground that they were ultra vires the Information Technology Act, 2000 and the provisions of Articles 14, 19 (1)(a) and 19(1)(g) of the Constitution.
First petition was filed by the petitioner 1 company known as “The Leaflet”.
The second Petition was a Public Interest Litigation filed by Nikhil Mangesh Wagle who was stated to be in the field of journalism since the year 1977.
Petitioners contended that the 2021 rules were ex-facie draconian, arbitrary and patently ultra vires the provisions of the IT Act and the provisions of Articles 14, 19(1)(a) and 19(1)(g) of the Constitution, which guarantees fundamental rights to the petitioners.
Petitioners in the first petition
Petitioners in the first petition were aggrieved by Rules 9, 14 and 16.
“9. Observance and adherence to the Code.—
(1) A publisher referred to in rule 8 shall observe and adhere to the Code of Ethics laid down in the Appendix annexed to these rules.
(2) Notwithstanding anything contained in these rules, a publisher referred to in rule 8 who contravenes any law for the time being in force, shall also be liable for consequential action as provided in such law which has so been contravened.
(3) For ensuring observance and adherence to the Code of Ethics by publishers operating in the territory of India, and for addressing the grievances made in relation to publishers under this Part, there shall be a three-tier structure as under—
(a) Level I – Self-regulation by the publishers;
(b) Level II – Self-regulation by the self-regulating bodies of the publishers;
(c) Level III – Oversight mechanism by the Central Government.
14. Inter-Departmental Committee.—
(1) The Ministry shall constitute an Inter- Departmental Committee, called the Committee, consisting of representatives from the Ministry of Information and Broadcasting, Ministry of Women and Child Development, Ministry of Law and Justice, Ministry of Home Affairs, Ministry of Electronics and Information Technology, Ministry of External Affairs, Ministry of Defence, and such other Ministries and Organisations, including domain experts, that it may decide to include in the Committee:
Provided that the Authorised Officer designated under sub-rule (2) of rule 13 shall be the Chairperson of such Committee.
(2) The Committee shall meet periodically and hear the following complaints regarding violation or contravention of the Code of Ethics by the entities referred to in Rule 8 –
(a) arising out of the grievances in respect of the decisions taken at the Level I or II, including the cases where no such decision is taken within the time specified in the grievance redressal mechanism; or
(b) referred to it by the Ministry.
(3) Any complaint referred to the Committee, whether arising out of the grievances or referred to it by the Ministry, shall be in writing and may be sent either by mail or fax or by e-mail signed with electronic signature of the authorised representative of the entity referring the grievance, and the Committee shall ensure that such reference is assigned a number which is recorded along with the date and time of its receipt.
(4) The Ministry shall make all reasonable efforts to identify the entity referred to in Rule 8 which has created, published or hosted the content or part thereof, and where it is able to identify such entity, it shall issue a duly signed notice to such entity to appear and submit their reply and clarifications, if any, before the Committee.
(5) In the hearing, the Committee shall examine complaints or grievances, and may either accept or allow such complaint or grievance, and make the following recommendations to the Ministry, namely:—
(a) warning, censuring, admonishing or reprimanding such entity; or
(b) requiring an apology by such entity; or
(c) requiring such entity to include a warning card or a disclaimer; or
(d) in case of online curated content, direct a publisher to—
(i) reclassify ratings of relevant content; or (ii) edit synopsis of relevant content; or
(iii) make appropriate modification in the content descriptor, age classification and parental or access control;
(e) delete or modify content for preventing incitement to the commission of a cognisable offence relating to public order;
(f) in case of content where the Committee is satisfied that there is a need for taking action in relation to the reasons enumerated in sub-section (1) of section 69A of the Act, it may recommend such action.
(6) The Ministry may, after taking into consideration the recommendations of the Committee, issue appropriate orders and directions for compliance by the publisher:
Provided that no such order shall be issued without the approval of the Secretary, Ministry of Information and Broadcasting, Government of India (hereinafter referred to as the “Secretary, Ministry of Information and Broadcasting”).
16. Blocking of information in case of emergency.—
(1) Notwithstanding anything contained in rules 14 and 15, the Authorised Officer, in any case of emergency nature, for which no delay is acceptable, shall examine the relevant content and consider whether it is within the grounds referred to in sub-section (1) of section 69A of the Act and it is necessary or expedient and justifiable to block such information or part thereof and submit a specific recommendation in writing to the Secretary, Ministry of Information and Broadcasting.
(2) In case of emergency nature, the Secretary, Ministry of Information and Broadcasting may, if he is satisfied that it is necessary or expedient and justifiable for blocking for public access of any information or part thereof through any computer resource and after recording reasons in writing, as an interim measure issue such directions as he may consider necessary to such identified or identifiable persons, publishers or intermediary in control of such computer resource hosting such information or part thereof without giving him an opportunity of hearing.
(3) The Authorised Officer, at the earliest but not later than forty-eight hours of issue of direction under sub- rule (2), shall bring the request before the Committee for its consideration and recommendation.
(4) On receipt of recommendations of the Committee under sub-rule (3), the Secretary, Ministry of Information and Broadcasting, shall pass the final order as regard to approval of such request and in case the request for blocking is not approved by the Secretary, Ministry of Information and Broadcasting in his final order, the interim direction issued under sub-rule (2) shall be revoked and the person, publisher or intermediary in control of such information shall be accordingly, directed to unblock the information for public access.”
Primary grievance of the petitioners for interim reliefs is qua the application of Rules 7, 9, 14 and 16 of the impugned rules.
Analysis, Law and Decision
High Court opined that as far as Rule 14 was concerned, there was no immediate urgency inasmuch as inter-departmental committee was yet to be constituted. It was required to be noted that, no material had been brought to Court’s notice that the authorized officer as contemplated under Rule 13(2) had been appointed.
Therefore, petitioners were at liberty to approach the Court as and when the inter-departmental committee was constituted.
Rule 16 provides for blocking of information in case of emergency
The stated Rule provided was pari materia to Rule 9 of the 2009 Rules which were still in operation. Also, it was not the petitioners case that they were at any time aggrieved by Rule 9 of the 2009 Rules. Hence, Court found no case to be made to stay Rule 16 of the 2021 Rules.
Blocking of information in case of emergency as provided by Rule 16 was on the grounds traceable in Section 69A (1) of the IT Act which was a provision failing in line with the restrictions as imposed by Article 19(2) of the Constitution of India, namely, when the authority finds that blocking of public access of any information is in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to commission of any cognizable offence in relation to such issues.
Therefore, prayer to stay Rule 16 was rejected.
Bench stated that that said Rule was severely criticized by the petitioners as noted by the Court to be an affront on the guarantee of right of freedom of free speech and expression conferred by Article 19(1)(a) of the Constitution.
What peculiar under Rule 9?
Publishers of news and current affairs content and publishers of online curate content are under a mandatory obligation to observe and adhere to the Code of Ethics laid down.
Petitioners submitted that the IT Act does not seek to censor the content on internet; secondly, it is impermissible for the Centre to have a subordinate legislation in the form of Rule 9 inasmuch as it provides for restrictions which travel beyond the provisions of Section 69A of the IT Act ; and thirdly, the rule making power itself, as exercised in framing the impugned rules, namely, the power under Section 87 sub-section (1) and clauses (z) and (zg) of sub- section (2) itself does not provide for imposition of such restrictions.
In the opinion of the Court, Rule 9 prima facie suffers from two illegalities:
- It imposes an obligation on the publishers of news and current affairs content and publishers of online curated content, to observe the Code of Ethics under a completely different statutory regime alien to the IT Act.
One who violates the code does so at his own peril and would expose himself/itself to more rigorous action than what the PCI Act envisages.
If a writer/editor/publisher has to adhere to or observe the Programme Code in toto, he would necessarily be precluded from criticizing an individual in respect of his public life [see: Rule 6(1)(i)].
Bench expressed that it is 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.
With the existence of 2021 Rules in place, one would have to think twice before criticizing 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.
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.
Adding to the above, Court stated that,
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 effect.
Further, it was stated that constant fear of being hauled up for contravention of the Code of Ethics is a distinct possibility now.
Prima facie, in Court’s opinion, Rule 9 appeared to be ultra vires the provisions of the IT Act being beyond the delegated power.
Elaborating more, Bench stated that Rule 9 prima facie appeared to be infringing the constitutional guarantee of Freedom of Speech and Expression as conferred by Article 19(1)(a) in subjecting the publishers of news and current affairs content and publishers of online curated content subject to action under the statutory regime of the PC Act and the CTVN Act, which provided for an independent mechanism for any violation of the provisions of such legislation.
Therefore, transgression of powers occupied by different legislation cannot be disrupted by a subordinate legislation.
Lastly, Court held that the present challenge would be required to be regarded as an exception to the general rule of presumption in favour of the constitutionality of Rule 9. Also, 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.
Court denied to propose to stay Rule 7 of the 2001 Rules in the absence of clear satisfaction that the petitioner in the second petition, who is himself a journalist and has sufficient personal interest in the subject matter of the dispute, has not been able to satisfy us that he is an ‘intermediary’ within the meaning of Section 2(w) of the IT Act.
Hence, the High Court directed stay f operation of sub-rules (1) and (3) of Rule 9 of the 2021 Rules.
Matter stood over to 27th September, 2021for final hearing. [Agij Promotion of Nineteenonea Media (P) Ltd. v. Union of India, WP (L) No. 14172 of 2021, decided on 14-08-2021]
Advocates before the Court:
Mr Darius Khambata, Senior Advocate with Mr Mihir Desai, Senior Advocate, Mr Karan Rukhana and Mr Ammar Faizullabhoy and Mr Varun Thomas Mathew, Advocates i/b. Ms Meenaz Kakalia, for the Petitioner in Writ Petition (L) no.14172 of 2021.
Mr Abhay Nevagi with Mr Amit Singh and Mr Vivek Patil, Advocates i/b. Abhay Nevagi & Associates for the Petitioner in PIL (L) no. 14204 of 2021.
Mr Anil C.Singh, ASG with Mr Aditya Thakkar, Mr D.P.Singh and Ms Smita Thakur, Advocates for the Respondents in both petitions.