Bombay HC Stays Controversial IT Rules on 'Code of Ethics' for Digital Media

Rules 9(1) and 9(3) found to be an 'intrusion' on the fundamental right to freedom of speech.

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Graphic: The Quint

The Bombay High Court on Saturday, 14 August, stayed Rules 9(1) and 9(3) of the controversial new IT Rules enacted in 2021, which required digital news media and online publishers to adhere to a 'Code of Ethics' prescribed by the government, and follow a three-tiered grievance redressal mechanism.

Chief Justice Dipankar Datta and Justice GS Kulkarni have been hearing a petition filed by legal news website The Leaflet, and a public interest litigation petition by journalist Nikhil Wagle, which challenge the constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

As an interim measure, the petitioners had asked the court to stay the implementation of the new IT Rules as they violate their right to freedom of speech, and go further than their parent legislation, the Information Technology Act.

At this time, the high court has only stayed Rules 9(1) and 9(3), dealing with the 'Code of Ethics', as they found them to be a "prima facie intrusion of the petitioners' rights" and to go beyond the scope of the IT Act, according to LiveLaw.

Other Rules challenged by the petitioners, including for the setting up of a inter-ministerial committee under the grievance mechanism, penalties for non-compliance with the Rules, and blocking access to content, remain in force.

Centre Justifies Constitutionality of New IT Rules, Opposes Pleas Seeking Stay

Senior advocate Darius Khambata, arguing for The Leaflet, had contended that the new Rules had a "chilling effect" on free speech and therefore violated Article 19(1)(a).

The judges had questioned how the 'Code of Ethics' prescribed by the new Rules, based on the Press Council's 'Norms of Journalistic Conduct' had been made enforceable. Live Law reported that the Chief Justice had commented during the hearings:

"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?... 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."

The Ministry of Information and Broadcasting had opposed the pleas seeking a stay on the implementation of the Centre's new IT rules, saying that it might lead to the spread of "fake news and legally prohibited content.

"It is further well settled that merely because a statute comes up for examination and some arguable point is raised, which persuades the courts to consider the controversy, the legislative will, should not normally be put under suspension pending such consideration," the affidavit filed by ASG Amarendra Singh contended.

The Centre further said that there was no need of urgency in implementing the stay which is being sought by several petitioners and doing so will only lead to spread of fake news.

The court rebutted Centre's arguments by citing that the government is undermining the urgency of adjudicating upon the validity of the new rules.

"There is a catch here. You may say there is no urgency, or no committee. But the sword is hanging on their heads."

Bombay High Court

(With inputs from Live Law.)