Bombay High Court's Stay On Enforcement Of IT Rules 'Code Of Ethics' Against Digital Media Ought To Have Pan-India Effect: Madras High Court [Read Order]

The Madras High Court on Thursday observed that the Bombay High Court's order dated August 14, 2021 staying the operation of sub-rules (1) and (3) of Rule 9 of the recently notified Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021) ought to have a pan-India effect. Sub-rules (1) and (3) of Rule 9 mandate adherence to the Code of Ethics which is annexed to the IT Rules, 2021 and provide for a three tier structure for addressing the grievances made in relation to publishers.

Furthermore, the Court also noted in its interim order that that any action taken citing Rules 3 and 7 of the IT Rules 2021 would be subject to the outcome of the challenge to the constitutional validity of the Rules.  Rule 3 speaks about the obligation to exercise due diligence by intermediaries and Rule 7 provides for coercive action against intermediaries for breach of the provisions of the Rules.

A Public Interest Litigation (PIL) has been moved by acclaimed Carnatic musician TM Krishna. The second petition has been moved by the Digital News Publishers Association (DNPA), comprising thirteen media outlets, as well as journalist Mukund Padmanabhan.

Senior advocate P.S Raman appearing on behalf of the petitioners contended before a Bench comprising Chief Justice Sanjib Banerjee and Justice PD Audikesavalu that the IT Rules 2021 is ultra vires inter alia to Articles 14 and 19 of the Constitution of India. 

The two petitions also made a specific reference to Rule 9 which provides for the 'observance and adherence to the Code" and enumerates the following, 

"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."

Opining that the oversight mechanism of the Central Government as provided in the final tier of the process of mechanism has the potential to jeopardize the independence of the media, the Court observed in its order, 

"For understandable reasons, the petitioners are wary of the oversight mechanism of the Central Government as indicated as 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."

During the hearing on Thursday, Additional Solicitor General R. Sankaranarayanan on behalf of the Union pointed out to the Court that the Bombay High Court vide its order dated August 14, 2021 had stayed the operation of sub-rules (1) and (3) of Rule 9 of the IT Rules 2021. 

Accordingly, the Bench noted that the decision of the Bombay High Court 'ought to have a pan India' effect. However, the counsels for the petitioners contended that despite the stay granted by the Bombay High Court, the petitioners had been served notices by the Central government requiring them to adhere to Rule 9 of the IT Rules 2021. 

"It may be recorded in all fairness that learned Additional Solicitor-General, representing the Union, accepts that the order of the High Court of Judicature at Bombay would have pan-India effect", the Court observed. 

Senior Advocate Rajashekhar Rao also submitted before the Court that Rules 3 and 7 of the IT Rules impose additional obligations on an intermediary which had not been incorporated in the parent legislation i.e. the Information Technology Act, 2000 (IT Act, 2000). In particular grievance was raised against the incorporation of sub-clause (x) of Rule 3 (1) (b) which states the following,

"(x) is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person;"

Rule 3 provides for the procedure for observing "due diligence by an intermediary." Whereas, Rule 7 envisages that if an intermediary fails to abide by the IT Rules, it would not be granted the protective exemption under Section 79 of the IT Act, 2000. In such a scenario, Rule 7 states 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". 

Taking into consideration the grievance raised by the senior counsel Rao, the Court noted in its interim order, 

"If there is any action taken in terms of Rule 3 of the said Rules read with Rule 7 thereof during the interregnum, it will abide by the result of the petitions and further orders herein"

The Court also noted that there is 'substantial basis' to the petitioners' assertion that Article 19 (1) (a) of the Constitution may be infringed in how the Rules may be coercively applied to intermediaries. 

The matter has been listed for further hearing on October 27 after the Court was informed that the Supreme Court is due to take up transfer petitions in the first week of October.

Senior Advocate MR Raman appeared for DNPA, Digital News Publishers Association and was assisted by Advocate Rahul Balaji.

Rajshekhar Rao, Sr Advocate appeared for TM Krishna assisted by Vrinda Bhandari, Abhinav Sekhri, Suhrith Parthasarthy, Tanmay Singh

Case Title: Digital News Publishers Association v. Union of India and other connected matters

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