Why Bombay HC Stayed Rules on Digital Media – And What Happens Next

On Saturday, 14 August, the Bombay High Court struck a powerful blow for freedom of speech, staying Rules 9(1) and 9(3) of the controversial new IT Rules, that required digital news media to adhere to a 'Code of Ethics' prescribed by the central government.

"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."

Bombay High Court's order dated 14 August

Chief Justice Dipankar Dutta and Justice GS Kulkarni passed the interim order in petitions filed by legal news portal The Leaflet and journalist Nikhil Wagle – the court has not delivered a final ruling on the constitutionality of the rules just yet, and will continue hearing the case in September.

The case in the Bombay High Court is one of many such cases challenging the Information Technology (Intermediary Guidelines and Code of Ethics for Digital Media) Rules 2021.

Petitions have been filed by several digital media organisations and journalists around the country (including by The Quint in the Delhi High Court) arguing that these new Rules violate the right to freedom of speech and go beyond the scope of their parent legislation.

While interim reliefs have been obtained in some of these other cases, this is the most significant order till now, as no court had thus far stayed the operation of the Rules.

The order will apply for media houses around the country, making it a major win for the digital news media, which has become a target for government censorship in recent times.

In several Supreme Court cases including the Sudarshan News hate speech case from late 2020, the Centre has consistently reiterated that it thinks the "venomous" digital news media need to be regulated.

The new IT Rules may have been part of a roadmap planned out by a Group of Ministers (GoM) during June and July 2020, at the height of the COVID-19 pandemic, as revealed back in March 2021. Former Law and IT Minister Ravi Shankar Prasad had reportedly said during the GoM meetings that:

“While we get insightful suggestions, it is not explained how despite being in Government, there is still a gap in the online media like Wire, Scroll and some regional media. Our core media intervention is not getting enlarged.”

The observations by the Bombay High Court indicate that this attempt through the 2021 Rules may not be able to succeed in giving the government oversight of the digital media, as the key mechanism for this has been found to require entirely new legislation.

Any such attempt at legislation would also find it difficult to proceed as it would effectively be seeking to create a censorship regime, which would be difficult to justify as a reasonable restriction on the right to freedom of speech.

Which Rules Has the Bombay High Court Stayed?

Although The Leaflet and Wagle had urged the court to stay the operation of numerous rules, the high court only agreed to stay the operation of Rules 9(1) and 9(3).

The judges found that the other rules were either a long way from being operative, or were the same as existing rules for blocking content that already exist and have not been challenged by the petitioners.

Rule 9(1) requires all digital news media publishers to "observe and adhere to the Code of Ethics" prescribed by the central government in the Appendix to the Rules.

This Code is derived from the Press Council of India's 'Norms of Journalistic Conduct', which sets out standards for all print media to follow, and the Programme Code applicable to TV channels under the Cable TV Rules and Act.

Rule 9(3) creates a three-tier grievance redressal mechanism to deal with complaints that a digital media publisher has violated the Code of Ethics: the publisher themselves, a self-regulatory body of digital media publishers, and an inter-ministerial committee set up the Centre.

Any person can file such a complaint, and can take it up the tiers if dissatisfied with the response received. This effectively gives the central government, through the inter-ministerial committee in tier 3, oversight over all material published by digital media houses, and allows it to impose sanctions on media houses which it believes to have violated the Code of Ethics.

There is no judicial intervention or court order required for the government to do this, creating valid concerns for censorship, as the high court would find.

Why Did the Bombay High Court Stay These Rules?

The first ground of challenge against the new IT Rules is that they go beyond the scope of the Information Technology Act 2000 (the IT Act) which is their parent legislation.

As the Bombay High Court observed, however, "The IT Act does not seek to censor content on the internet, except to the extent mentioned in Section 69A thereof."

Section 69A allows the blocking of access to content in the interests of the sovereignty and integrity of India, the defence of India and in the interests of public order.

However, the IT Rules 2021 go much further as they regulate the content that can be published online. The bench noted that the Press Council of India norms that form the basis of the Code of Ethics are not statutory, but merely moral norms which are not enforceable.

In the IT Rules, however, "adherence and/or observance of moral standards in the code has been exalted to the status of a mandatory compliance." Do's and don'ts from the Programme Code, while no doubt relevant, were being imposed on digital media in a way that was unsustainable.

The interpretation of the Code of Ethics is ultimately being left to the government's inter-ministerial committee.

The court explained that this meant that the committee could, for instance, find that criticism of a public figure violates the Code – even if the criticism didn't amount to defamation or any of the other grounds for reasonable restrictions on speech in Article 19(2) of the Constitution.

According to the judges, these wide terms used in the Rules bring about a 'chilling effect' on the digital media, as they could be "hauled up for anything if the committee so wishes."

"As it is, the constant fear of being hauled up for contravention of the Code of Ethics is a distinct possibility now. 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. This regime would run clearly contrary to the well-recognized Constitutional ethos and principles."

Bombay High Court's order dated 14 August

The high court was firmly of the view that the power to frame rules under the IT Act could not include a provision like this. As a result, "Rule 9 appears to be ultra vires the provisions of the IT Act being beyond the delegated power."

The judges agreed with the petitioners that there was a need to ensure Rule 9 did not remain in operation while the full case was still being heard, and observed this would have a "pernicious effect."

Having found that making the Code mandatory was a prima facie violation of the fundamental right to freedom of speech, they found that a stay was necessary.

Does This Mean the IT Rules are Permanently Suspended/Struck Down? What Happens Next?

As mentioned earlier, the Bombay High Court has only passed an interim order, not made a final determination regarding the constitutionality of the IT Rules. While it has made strong prima facie observations, this does not necessarily mean that the final determination will go the same way.

However, given the reasoning employed for why Rule 9 is a problem, it is unlikely that this would survive, even if the rest of the Rules are eventually upheld.

The new Rules include several provisions for intermediaries (social media companies in particular) which are not the subject of challenge in petitions by media houses and journalists – which means they would not be affected by the final ruling in the Bombay High Court.

The bench had also clarified that at least one Rule here, Rule 16, is likely to remain in place as it is the same as the 2009 Blocking Rules, for which there is a corresponding legislative provision in the IT Act, Section 69A.

Of course, it may be that the Bombay High Court doesn't even get to hear the matters going ahead. The Supreme Court is currently hearing a plea to consolidate all the different petitions against the IT Rules across the country into one case before the apex court itself, to prevent multiplicity of orders.

It remains to be seen if the Supreme Court takes up the matter, but till such time as further court orders come in, the Bombay High Court's order will protect the fundamental rights of digital news media.