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Today, The Bombay High Court heard petitions challenging the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) filed by petitioners the Leaflet, a digital news web portal, and Nikhil Wagle, a journalist.

The matter was argued before the Division Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni.

In pursuance of the submission made by Additional Solicitor General (ASG) Anil Singh appearing for the Ministry of Electronics and Information Technology that a transfer petition has been filed before the Supreme Court seeking all the 14 petitions filed against the Amendment before various High Courts be clubbed together, and the same is likely to be heard tomorrow by the Apex court, the Division Bench adjourned the hearing till tomorrow, August 10.

The Leaflet had challenged the new IT Rules 2021 as being violative of Articles 14 (right to equality), Article 19(a) (freedom of speech and expression), and 19(1)(g) (freedom to practice any profession or to carry on any occupation, trade or business).

In its petition, The Leaflet had contended that the new IT Rules are beyond the rulemaking power of the Central Government as the parent Act i.e. Information Technology Act, 2000 does not provide for anything which either seeks to regulate or enables the regulation of the ethics and digital content of online publishers.

Senior Advocate Darius Khambata, appearing on behalf of one of the petitioners, argued before the Division Bench that the new amended Rules have a chilling effect on the freedom of speech, adding that the Regulations are so vague that it can haul up anyone for publishing anything online.  

Stressing that the Act is a draconian assault on the freedom of speech and democracy, Sr. Adv. Khambata further stated that ‘Ex facie the new rules are ultra vires of the IT Act which seeks to regulate publishing on electronic media. Original IT Act didn’t purport to regulate content, he added.

Reading the norms for journalistic conduct, Sr. Adv. Khambata stated that the ‘Press Council of India has self-regulations which are quite broad’.

Advocate Abhay Nevagi appearing for Nikhil Wagle added to Sr. Advocate’s argument that ‘by such amendment, the government will be giving permission to messaging platforms to store and read data of citizens. This can be misused and even the data can be sold. We saw this in the US during the last elections,’ he further argued.

Highlighting that the Draft of the Rules was published in 2018, he averred that before passing the Rules, the Central Government should have heard all the stakeholders. “Though some discussion took place in the Lok Sabha, the discussion over this issue didn’t take place,” Adv. Nevagi added.

On ASG’s mentioning that the steps by the Government have been taken to sort the matter such as the transfer petition, the Bombay High Court held,

“We propose to hear the arguments of ASG opposing the submissions of the petitioner provided the Supreme Court does not preclude this court from passing order.”