Dissent In Democracy Is Vital: Bombay High Court On Partially Staying IT Rules

A day after a partial stay was ordered on provisions of the IT Rules, 2021, the Bombay High Court said its indeterminate and wide terms “bring about a chilling on the Right to Freedom of Speech”.

The order was passed by a bench of Chief Justice Dipankar Dutta and Justice GS Kulkarni in a petition by The Leaflet and journalist Nikhil Waghle, who have challenged the constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

The IT rules came into effect in February 2021, and were framed by the government exercising its powers under the Information Technology Act, 2000. The Bombay High Court is the first court to order a stay on part of the IT rules.

‘Rule 9 Prime Facie Unconstitutional’

The High Court in its order stayed Rule 9(I) and 9(III) of the IT rules. Rule 9(I) mandates digital news publications to adhere to a code of ethics, while 9(III) sets up a regulatory mechanism that includes oversight mechanism of the central government.

The petitioners argued that the Information Technology Act does not grant the power to the central government to regulate the content of the news media. The high court agreed.

According to the bench, the code of ethics that publishers are bound to follow are the norms of journalistic conduct of the Press Council of India under the Press Council Act and the Programme Code of the Cable Television Network Act. Even under these acts these norms are not punishable, the high court said.

The sanction behind the code, as is evident, is moral and not statutory, the High Court said.

But, the bench said, the IT Rules 2021 imposes them as an obligation.

‘Dissent In Democracy Is Vital’

The Bombay High Court highlighted the “chilling effect” the rules can have on digital news publishers if parts of it were not stayed.

Healthy criticism, it said, is part of a democracy but the rules in their present form would make anyone think twice before criticising people in public life. The code of ethics, according to the bench, is the “Sword of Damocles” hanging over writers who may not even be violating any law or defaming anyone through their writing.

The inter-departmental committee, which is a part of the oversight mechanism, can haul up a person for anything if it so wishes, the bench said.

According to the High Court, if this part of the rule is not stayed then it would generate a “pernicious effect” and the fear of being hauled up for contravention of the code of ethics is distinct possibility now.

The court then stayed the operation of Rule 9(1) and Rule 9(3) of the IT Rules, 2021.

The high court will now take up the case for hearing on Sept. 27.

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