Justice Anup Bhambhani Of Delhi High Court Recuses From Hearing Pleas Against IT Rules

Justice Anup Jairam Bhambhani of the Delhi High Court today recused himself from hearing pleas by digital media houses The Wire, The Quint and others challenging the constitutional validity of the Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021.

The petitions were listed before a vacation bench comprising Justice Bhambhani and Jasmeet Singh.

As the matter was taken, Justice Bhambhani said that he was recusing from the hearing, and said that the cases will be listed next Monday.

Senior Advocate Nitya Ramakrishnan appearing for the petitioners in the matter said that as they were before the court, they had hoped "the Court would hold their hand", implying an interim relief for the media houses from coercive steps under Part 3 of the Rules. However, Justice Bhambhani said that either he could hear the matter or not, there was "no middle way". The case is now listed before the roster bench.

In May, the Delhi High Court bench of Chief Justice DN Patel and Justice Jyoti Singh had adjourned the hearing of the petitions to Aug 4 on grounds of non-urgency.

Counsel for one of the individual petitioners in the batch of pleas had contended that the matter was urgent due as it concerned the infringement of fundamental rights. However, the bench expressed that the matter was not urgent and had adjourned the hearing.

This was soon after the Government of India wrote to various social media platforms enquiring about compliance with the abovementioned rules.

The pleas challenge the constitutional validity of the IT Rules, 2021 to the extent it regulates the publishers of news and current affairs content.

Ritu Kapur, the Director and Co-Founder of 'The Quint', alongwith the 'Foundation for Independent Journalism'(a non-profit company which owns 'The Wire'), Founder and Editor-in-Chief of 'The News Minute' Dhanya Rajendran and Founding Editor of 'The Wire' MK Venu are the petitioners in the other case.

Though Senior Advocate Nitya Ramakrishnan had earlier sought for interim protection for the petitioners from coercive steps under Part 3 of the Rules (which deals with digital media), the bench said that it will not grant it as of now. However the bench had expressed that in case any coercive steps are taken, the petitioners will be at liberty to seek an urgent hearing.

The petition, filed through Advocates Prasanna S and Vinoothna Vinjam, contends that the new Rules are ultra vires the Constitution of India as well as the Information Technology Act to the extent they impose unreasonable and arbitrary restrictions on digital news media.

It is highlighted that the parent statute of the Rules, the IT Act, does not deal with digital media, and hence, the executive rules made under the said Act to regulate online news publishers are invalid.

The petition states that the Rules amount to an "overreach" as they incorporate the vague and arbitrary norms under the Press Council Act and the Programme Code, that too by way of subordinate legislation, in order to vest "draconian powers and control" with the executive, contends the petition.

"The regulations are frontally offensive to Article 19(1)(a) and Article 14. A restriction on the Fundamental Right to free speech and expression can only be to the extent strictly necessary for the stated interests in Article 19(2). Digital news portals such as the Quint, published by the Petitioners, are already subject to all the civil and criminal laws enacted for those interests. Therefore, the IT Rules, 2021 cannot be in the interest of Article 19(2). They are only meant to be a ruse for the State to enter and directly control the content of digital news portals", the plea states.

The digital messaging platform, WhatsApp, has also moved the Delhi High Court challenging the 'traceability' clause under the new IT Rules, under a different petition.