'Unless You Have Liberty Of Thought, How Can You Express Yourself?' : Bombay High Court Reserves Interim Order On IT Rules 2021

A Division bench of Chief Justice Dipankar Datta and Justice GS Kulkarni expressed during the hearing that it is inclined to stay qua the Petitioners, the operation of Rule 9, which mandates adherence to the Code of Ethics prescribed by the IT Rules 2021.

The bench asked the Centre during the hearing if the norms of Press Council can be mandatorily enforced through subordinate legislation. The bench also asked if the Press Council norms, which are guidelines and norms of behaviour, can be "exalted" to the status of mandatory compliance.

"We are inclined to grant limited relief to extent that for any alleged contravention of code of ethics, no action should be taken against you (Leaflet) alone or Mr Wagle without obtaining leave of court because he is also a journalist," the bench observed.

The bench said that it will pronounce the orders tomorrow at 5.30 PM.

It observed that by prescribing a Code of Ethics under the impugned Rules, the Government is bringing in something by way of delegated legislation into a substantive legislation.

Chief Justice Dutta asked, "The Press Council Code of Ethics are just guidelines, how can you put it to such an exalted status that they will be liable to action?"

"Can something that is already controlled under the Press Council Act and Cable TV Act can be brought within the purview of these rules? That is the question that will have to be answered", he added.

"Unless you have the liberty to thought, how can you express yourself?. You are restricting the liberty of thought. But according to your Rules, it appears a minor infraction makes a person liable for action," he observed orally.

The Bench also posed a query to Additional Solicitor General Anil Singh, representing Centre, as to whether a publisher would be liable to action if some content published by it though may not be adhering to the journalistic code of conduct in its strictest sense but does not violate the reasonable restrictions contemplated under Article 19(2) of the Constitution.

The ASG contended that there is a possibility of misuse however, it can be contained and the Rules need to not be struck down for the same as they have been framed in larger public interest.

He relied on the judgment in Siliguri Municipality v. Amalendu Das (1984) where the Supreme Court had held that Courts have to strike a "delicate balance" after considering the pros and cons of the matter lest "larger public interest is not jeopardized and institutional embarrassment is eschewed."

The ASG also informed the Court that the Interdepartmental Committee, which is the third tier of oversight mechanism, is yet to be formed.

Senior Advocate Darius Khambata on the other hand, appearing for AGIJ, contended that whether a Committee has been constituted or not is irrelevant because there is a "chilling effect" on free speech.

"If I as a journalist am told that if there is anything inaccurate then I will fall foul…if I don't publish the other side. If I have to refrain from publishing a picture?... In a constitutional democracy the right of free speech is very precious. The Right to be wrong, the right to speak freely. Rule 9 has to be stayed because it is a sword hanging above my head," he remarked.

He contended that the impugned Rules go far beyond Section 69A of the IT Act and that the Centre has not been able to point out a single provision under the IT Act under which Part III of the Rules (Code of Ethics and Procedure and Safeguards in Relation to Digital Media) could be made.

"What is going to happen now, the IT Ministry will invoke 69Aof the IT Act to block something and if it falls outside another Section 69A, another Ministry will take action under these Rules," Khambata submitted.

On Tuesday, the Court had directed the Union of India to file a short affidavit stating why interim relief shouldn't be granted.

Today, the Centre argued that there is no urgency or need to stay the Rules as there is no adverse action initiated against the petitioner.

"Their main objection is to part III of the Rules where the Ministry comes into the picture. But no action has been taken as yet… there are three levels for Grievance Redressal, and the Ministry comes in only at the third level." ASG Anil Singh said.

He added that any relief may have a spiraling effect and "result in spread of fake news and legally prohibited content."

"It is also submitted that an interim stay on the implementation or operation of Part-III of the Rules would render the legally established institutional framework for digital media publishers inoperative, leading to an environment of impunity, and concomitant spread of fake news and legally prohibited content. It is further submitted that such a situation may not only cause harm to the citizen's right to correct information, but also impact the efforts being made by various stakeholders towards development of a safe online news media ecosystem," the affidavit filed by Amarendra Singh, Deputy Secretary in the Union Ministry of Information and Broadcasting (MIB) read.

(Compiled and edited by Akshita Saxena).