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New Delhi: The Madras high court has stayed the application of sub-rules (1) and (3) of Rule 9 of what is now widely known as IT rules 2021, stating that they rob the independence of media in the country, LiveLaw has reported.
Rule 9 of the Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021 (or, IT rules 2021) relates to “adherence and observation” of the Code and lays down an oversight mechanism by the Union government to ensure adherence to the Code and resolution of any grievances in relation to publishers.
A division bench of Chief Justice Sanjib Banerjee and Justice Audikesavulu was hearing two petitions on Thursday which contended that IT rules 2021 are ultra vires inter alia to Article 14 (equality before law) and Article 19 (right to freedom of speech) of the constitution.
Passing the order, the court said, “By way of abundant caution, sub rules (1) and (9) of Rule 9 of IT Rules 2021 will remain stayed.”
Among the two petitions, one was a public interest litigation (PIL) moved by Carnatic musician T.M. Krishna and the second petition by the Digital News Publishers Association (DNPA), consisting of 13 media outlets, and journalist Mukund Padmanabhan.
Both petitions specifically found fault with Rule 9 of IT rules 2021, which allows for the Union government to set up an oversight mechanism. Rule 9 reads as follows:
“For ensuring observance and adherence to the Code of Ethics by publishers operating in the territory of India, and for addressing the grievances made in relation to publishers under Part III, there shall be a three-tier structure, namely:—(a) Level I – Self-regulation by the publishers; (b) Level II – Self-regulation by the self-regulating bodies of the publishers; and (c) Level III – Oversight mechanism by the Central Government.”
Agreeing with petitioners’ view that oversight mechanism by the Union government, as mentioned in the final tier in the process of mechanism, the court said it could jeopardise the independence of media.
Passing the order, the court said, “For understandable reason, the petitioners are wary of the oversight mechanism of the Central government as indicated in the final tier of the process of regulation. Prima facie there is substance to the petitioner’s grievance that the oversight mechanism to control the media by the Government may rob the media of its independence and the fourth pillar of democracy may not at all be there.”
The court further recalled that the Bombay high court, in its order passed on August 14, 2021, had stayed the sub-rules (1) and (3) of Rule 9 of IT Rules 2021 and observed that the order should have a “pan India” effect. It also noted that despite the Bombay high court’s order, petitioners in this particular case were served notices by the Union government requiring them to conform to Rule 9 of IT rules 2021.
On the other hand, it was also brought to the notice of the court by senior advocate Rajashekar Rao that Rule 3 and 7 of IT Rules call for additional obligations on an intermediary without being incorporated in the parent legislation of Information Technology Act, 2000.
While Rule 3 details the procedure for observing “due diligence by an intermediary”, Rule 7 states that if an intermediary fails to follow IT Rules, it would not be granted the protective exemption mentioned under Section 79 of IT Act, 2000. In such an event, Rule 7 says that the intermediary “shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code”.
Considering the views put forward by Rao, the court said any action taken under Rule 3 and 7 would be subjected to the outcome of the challenge to these rules.
“There is a substantial basis to the petitioners’ assertion that there may be a violation of Article 19 (1)(a) (of the Constitution) in how the Rules may be coercively applied to intermediaries. Accordingly, if there is any action taken in terms of Rules 3 of the said Rules read with (Rule) 7 thereof, it will abide by petition,” the court added.
The next hearing in the matter was scheduled on October 27 after it was brought to the notice of the court that the Supreme Court is due to take up transfer petitions in the first week of October.