Will Consider Challenge to IT Rules For Interim Relief If Not Precluded By Supreme Court : Bombay High Court

On Monday, the bench of Chief Justice Dipankar Datta and Justice GS Kulkarni heard AGIJ Promotion Of Nineteenonea Media Pvt. Ltd petition, the company that owns the digital news platform 'The Leaflet', and a PIL filed by journalist Nikhil Wagle for interim reliefs, to stay the Rules.

In response to the Union's reiteration that transfer applications are pending before the Supreme Court, the court asked why steps were not taken for orders on the applications so far.

The Additional Solicitor General said the matter might be heard tomorrow itself, following which the court adjourned the case for Tuesday, at 2.30pm.

"We propose to consider the submissions made by Mr Singh so long as this bench is not precluded from doing so by the orders of the SC," the court said.

During the hearing, Senior Advocate Darius Khambata, appearing for AGIJ, called them "the most draconian rules on freedom of free speech in recent times," adding that while the Act itself did not seek to censor content, it was being done through the recently introduced Rules.

"If these rules would be applied to judgements, even they wouldn't pass this test," he submitted.

He sought admission of the plea, and an interim stay be granted on Rule 9, 14 and 16 so long as they apply to news publishers.

Khambata argued that the rules were ex-facie ultra vires of the Constitution and went far beyond the reasonable restriction on free speech under Article 19(2) of the Constitution.

"See the draconian nature of the powers to monitor, censor and regulate everything on the internet. This is the most draconian rule on freedom of free speech in recent times," he added.

"The Rules have a chilling effect on authors or anyone who wants to put anything up on the internet because they are so vague and wide." Calling them unreasonable, he added that the rules had nothing to do with regulating or recognising e-transactions on the internet.

Conceding that the media seemed to have become "overzealous," he said that alone can't be used against free speech.

Khambata also cited the Press Council of India's norms and submitted that the objectives mentioned in the norms were "good objectives," but they could not be used to restrict free speech.

"Investigative journalism is sought to be controlled. The effect is that tomorrow a journalist won't write something, or do a sting operation if he cannot 100% prove it. This intends to censor, punish you," Khambata argued by assailing the IT Rules, 2021.

"If you must say, they should be accurate, of course, they have to be. But what do they mean by that? Who is to decide what is fair or crass. Headlines are not to be provocative. It does not mean that publishers, editors or authors must be controlled in this manner," he submitted.

Advocate Abhay Nevagi for Wagle has sought quashing of the Rules as they provide "unfettered powers to the executive to direct the intermediaries to delete or modify or block the relevant content and the information generated, transmitted, received, stored or hosted in their computer resource for public access."

Nevagi submitted that the provision to trace the originator when communication is end-to-end encrypted is not possible in the present time. And any process to identify an originator would severely undermine the privacy of billions of people who communicate digitally with full trust and faith.

Nevagi pointed out that the Rules were not just criticised in India but also by international organisations. He said that the Special Rapporteurs of the United Nations had written to the Government of India criticising the rules.

The bench then adjourned the matter for ASG Singh's arguments on Tuesday.