Madras High Court remarks Bombay High Court order staying Rule 9 of IT Rules, 2021 has Pan-India effect
Noting that there may have been no need to pass an independent order, the Madras High Court on Thursday upheld the decision of the Bombay High Court pertaining to the sub-rules (1) and (3) of Rule 9 of the recently notified Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021).
The court was hearing a public interest litigation (PIL) moved by acclaimed Carnatic musician, TM Krishna and a second petition filed by the Digital News Publishers Association (DNPA), comprising of thirteen media outlets.
The petitioners contended that the IT Rules, 2021 is ultra vires inter alia Articles 14 and 19 of the Constitution of India. It was further contended that Rule 9 of the said Rules, which pertains to observance and adherence to the Code, would undermine the independence of media.
The court noted that Rule 9 (3) provides for ensuring observance and adherence to the Code of Ethics by publishers operating in the territory of India as laid down in the Appendix to the Rules.
The court took note of the grievances made in relation to publishers which provide that regulation would be governed by a three-tier structure as follows:
- Level I - Self-regulation by the publishers;
- Level II - Self-regulating bodies of the publishers;
- Level III - Oversight mechanism by the Central Government.
The court said on the same,
“For understandable reasons, the petitioners are wary of the oversight mechanism of the Central Government indicated as the final tier of the process of regulation. Prima facie, there is substance in the petitioners' grievance that an oversight mechanism to control the media by the government may rob the media of its independence and the fourth pillar, so to say, of democracy may not at all be there.”
Hearing both sides of the matter, the court opined that the Bombay High Court decision which stayed the observation of the said IT Rules applies pan India.
The court took on record the acceptance of Additional Solicitor-General representing the Union, that the order passed by the High Court of Judicature at Bombay would have pan-India effect.
Further, the petitioners pointed out that Rule 3 of the IT Rules puts an obligation on the intermediaries to terminate the access or usage rights of users for non-compliance with the provisions of Rule 3 (1) (b). Further, that the provisions for grievance redressal have been made stringent and, finally, that Rule 7 has been incorporated making an intermediary liable for punishment upon the intermediary failing to observe the said Rules.
The High Court further observed that “any host of a website or platform would be an intermediary and an ordinary person may be denied access to the platform on the ipse dixit of the intermediary or on the intermediary's apprehension that such intermediary may be proceeded against.”
The court said that in Shreya Singhal v. Union of India the Supreme Court has already opined that unlawful acts beyond what is laid down in Article 19(2) of the Constitution “obviously cannot form any part of Section 79 of the Act.
Therefore the court held that there is a substantial basis to the petitioners' assertion that Article 19 (1) (a) of the Constitution may be infringed in how the Rules may be coercively applied to intermediaries.
The matter has been listed for further hearing on Oct 27 after the Court was informed that the Supreme Court is due to take up transfer petitions in the first week of October.
Case Title: Digital News Publishers Association v. Union of India and other connected matters