Karnataka High Court Issues Notice On Plea Challenging Provisions Of New IT Rules 2021

The Karnataka High Court on Monday issued notice the Union of India on a petition filed seeking to declare Rule 3 (1) (d) and Rule 7 of the Information Technology (Intermediary guidelines and digital media ethics code, 2021, as ultra vires and unconstitutional and strike down the rules as it grants executive powers without adequate safeguards.

A division bench of Chief Justice Abhay Oka and Justice N S Sanjay Gowda while hearing a petition filed by Advocate Charita V issued the notice to respondents returnable on September 6. It directed the respondents to file their statement of objections to the petition by September 3.

Rule 3. (1) (d) reads thus: an intermediary, on whose computer resource the information is stored, hosted or published, upon receiving actual knowledge in the form of an order by a court of competent jurisdiction or on being notified by the Appropriate Government or its agency under clause (b) of sub-section (3) of section 79 of the Act, shall not host, store or publish any unlawful information, which is prohibited under any law for the time being in force in relation to the interest of the sovereignty and integrity of India; security of the State; friendly relations with foreign States; public order; decency or morality; in relation to contempt of court; defamation; incitement to an offence relating to the above, or any information which is prohibited under any law for the time being in force:

Rule 7 reads thus:

Non-observance of Rules.—Where an intermediary fails to observe these rules, the provisions of sub-section (1) of section 79 of the Actshall not be applicable to such intermediary and 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.

The petition states that the Constitution of India provides for six Fundamental rights. Although the fundamental rights are being uniformly upheld by all the three organs-Legislative, Executive and Judiciary there have been time and again contrary measures taken and amendments made by these organs affecting the fundamental rights. One such recent amendment made by the Government is the IT rules 2021, which is in violation of Article 19 (1) (a) of the Constitution which guarantees Freedom of Speech and Expression to the citizens.

The petition also states that law enunciated in the case of Shreya Singhal vs Union of India has not been overruled as on date. However, since the hands of the legislature and executive were tied in view of this judgment the respondent has tried to surpass the order of the Supreme Court by passing the IT rules 2021, which came to be notified on February 25.

Further it is said "There are various terms stated in the IT Rules, 2021, such as decency, morality, public order etc which are vague and not defined in either the rules or the principal legislation which it relies on. Therefore, in the absence of definite terms of interpretation there is a possibility that the executive which is tasked with the authority of interpreting IT rules, would be given a wide discretion of powers which would in turn defeat the purpose of the rules and the same is likely to be misused due to lack of boundaries and lack of proper interpretation."

It is also claimed that "Respondents under the garb of regulating media and bringing in certain checks and balances want to indirectly curb, restrict and prevent the free circulation of information which is pivotal for the growth of any democracy."

The plea also states that respondents are trying to bring in section 66A by virtue of a backdoor entry in view of the IT rules 2021. After making a comparison between Section 66A which was struck down and rule 3 (1)(d) the petition states, "It (rules) is trying to bring in additional grounds for laying down curbs under the grounds of defamation, decency or morality."

It is also contended that in case of defamation the normal recourse available under law is either file a civil suit for damages or a criminal complaint before the magistrate. However, by insertion of Rule 3 (1) (d) the respondents are trying to usurp the powers of the judiciary and overcome the procedural safeguards.

Moreover, the petitioner has said that the general principle of law is that special law will prevail over the general law. However, rule 7 of the IT Rules 2021 has made an express provision that in event of any offences committed by defaulting parties the provisions of the IT Act 2000 as well as various offences of Indian Penal Code can also be registered. "This is in complete divergence of the law laid down by the Supreme Court in the case of Sharat Babu Digamarthi vs Government of NCt of Delhi, wherein it was held that fastening of offences to the offender shall be limited to the IT act and not any other law as the same is wide enough to cover all types of offences in electronic form.

By way of interim relief the petitioner has sought for suspension of the rules 3 (1) (d) and Rule 7, and direct respondents to not initiate any coercive action in the form of penalties, blocking of access as against the publishers, intermediaries and citizens for non-compliance of the IT rules 2021.

Petitions have been filed in different High Courts challenging the IT Rules. The Central Government has approached the Supreme Court seeking to transfer the pleas to the top court.

Advocate CHINMAY J MIRJI will be arguing the petition.