‘You are restricting liberty of thought’, Bombay HC tells Centre while hearing challenge to IT Rules, 2021

The Bombay High Court on Friday reserved order on pleas seeking interim relief from operation of the InformationTechnology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021.

The court was hearing writ petitions filed by ‘AGIJ Promotion Of Nineteenonea Media Pvt. Ltd’, the company that owns the legal news portal 'The Leaflet' and a PIL filed by journalist Nikhil Wagle for interim reliefs to stay the IT Rules 2021.

A Division Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni said during the hearing that it is inclined to stay the operation of Rule 9, which mandates adherence to the Code of Ethics prescribed by the IT Rules 2021, Live Law reported.

The Bench asked the Centre during the hearing if the norms of Press Council can be mandatorily enforced through subordinate legislation. The bench also asked if the Press Council norms, which are guidelines and norms of behaviour, can be "exalted" to the status of mandatory compliance.

"We are inclined to grant limited relief to extent that for any alleged contravention of code of ethics, no action should be taken against you (Leaflet) alone or Mr Wagle without obtaining leave of court because he is also a journalist," the Bench observed.

The bench said that it will pronounce the orders tomorrow at 5.30 PM.

It observed that by prescribing a Code of Ethics under the impugned Rules, the government is bringing in something by way of delegated legislation into a substantive legislation.

Chief Justice Dutta asked, "The Press Council Code of Ethics are just guidelines, how can you put it to such an exalted status that they will be liable to action?"

"Can something that is already controlled under the Press Council Act and Cable TV Act can be brought within the purview of these rules? That is the question that will have to be answered", he added.
The bench read the PCI's guidelines of dos and don'ts to say that they allow some amount of discretion. "There is some element on discretion left. But in the Rules, any violation would attract action", the CJ remarked.

"Unless you have the liberty to thought, how can you express yourself? You are restricting the liberty of thought. But according to your Rules, it appears a minor infraction makes a person liable for action," he observed orally.

The Bench also posed a query to Additional Solicitor General Anil Singh, representing the Centre, as to whether a publisher would be liable to action if some content published by it, though may not be adhering to the journalistic code of conduct in its strictest sense, but does not violate the reasonable restrictions contemplated under Article 19(2) of the Constitution.

The ASG contended that there is a possibility of misuse; however, it can be contained and the Rules need to not be struck down for the same as they have been framed in larger public interest.

The ASG also informed the court that the Interdepartmental Committee, which is the third tier of oversight mechanism, is yet to be formed.

Senior Advocate Darius Khambata, appearing for AGIJ, contended that whether a Committee has been constituted or not is irrelevant because there is a "chilling effect" on free speech.

"If I as a journalist am told that if there is anything inaccurate then I will fall foul…if I don't publish the other side. If I have to refrain from publishing a picture?... In a constitutional democracy the right of free speech is very precious. The right to be wrong, the right to speak freely. Rule 9 has to be stayed because it is a sword hanging above my head," he remarked.

He contended that the Rules go far beyond Section 69A of the IT Act and that the Centre has not been able to point out a single provision under the IT Act under which Part III of the Rules (Code of Ethics and Procedure and Safeguards in Relation to Digital Media) could be made.

"What is going to happen now, the IT Ministry will invoke 69A of the IT Act to block something and if it falls outside another Section 69A, another Ministry will take action under these Rules," Khambata submitted.

On Tuesday, the Court had directed the Union of India to file a short affidavit stating why interim relief shouldn't be granted.

Today, the Centre argued that there is no urgency or need to stay the Rules as there is no adverse action initiated against the petitioner.

It added that any relief may have a spiraling effect and "result in spread of fake news and legally prohibited content".