IT Rules 2021 : Supreme Court To Hear Centre's Plea To Stay Interim Orders Passed By High Courts On July 27

Considering that new IT Rules, namely, Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021) and Cable Television Networks (Amendment) Rules, 2021 have come into force, a Bench comprising Justices A.M. Khanwilkar, A.S. Oka and J.B. Pardiwala noted that nothing further survives in the pleas. However, liberty was granted to the petitioners to challenge the validity of the provisions of the new Rules so enacted.

On the last date of hearing, the Apex Court had also indicated that the issues in the concerned batch of petition which includes plea seeking regulation of functioning online media streaming platforms like Netflix, Amazon Prime Video, Hotstar; guidelines to combat hacking data theft; mechanism to keep a check on fake news and instigative messages being circulated via social media, would not survive for consideration.

In one of the petitions, the petitioner in person, apprised the Bench that social media platforms are being used for selling child sexual abuse and rape videos. He argued that the new rules do not have a mechanism to deal with such violations. He submitted -

"There are several instances were child sexual abuse material and rape videos are being sold on the social media platforms. Against which I raised a complaint. Nowhereabouts of the complaints and the IT Rules will not ipso facto take away this trade market that has been established, so the petition should survive."

Considering the fact that the petition was filed before the 2021 Rules came into force, Justice Khanwilkar asked the petitioner to amend the petitioner or file a new one.

Justice Khanwilkar stated -

"First challenge the validity of the rule. Your petition is prior to the rule. Rules came in 2021. You withdraw and file a new petition. You make representation to the authority. If it is a good suggestion they can consider it."

In the alternative, the Bench asked the petitioner to withdraw the present petition and approach the concerned authorities with a representation.

Moving on to the petitions assailing the provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021), the Solicitor General, Mr. Tushar Mehta, requested the Bench to take a look at the contours of the challenges before the respective High Courts and the interim orders granted in this regard. Referring to the interim order passed by the Bombay High Court, he submitted, it had stayed application of Rule 9, which only provides for a grievance redressal mechanism.

"There is a challenge to the 2021 Rules. Kindly see the scheme of the rule and whether it affects Article 19(1)(a). These WP have to be heard. In the meanwhile I would like to show the broad contours of the challenge. For eg. Bombay High Court stays Rule 9, where the redressal mechanism is provided. While maintaining and respecting A.19(1) rights we have provided for a grievance mechanism for both social media and TV networks. It does not encroach upon any freedom. Freedom is always with some restrictions. Rule 9 balances equities, the users are also given protection."

Senior Advocate, Mr. Arvind Datar, appearing on behalf of LiveLaw Media Pvt. Ltd. informed the Bench that what was stayed by the Bombay High Court was the provision which permits a Joint Secretary to sit in judgment over the decision of the Self Regulatory Body, which is headed by a Retired Judge of the Supreme Court.

"Kindly see Rule 9, Justice Sikri is the Chairman of the Self Regulatory Body (SRB). Now the decision of the SRB is to be considered by a Joint Secy. That is not permissible. A Joint Secretary is to sit over the retired SC Judge."

Senior Advocate, Mr. AM Singhvi suggested that the writ petition before the High Court can be expedited.

"There is an operative stay for 1 year by HC. He can go before the High Court and expedite the hearing. Otherwise hearing would be duplicated if your lordship hears it."

Justice Khanwilkar indicated that the challenge to the rules before the High Courts could be transferred to the Supreme Court, as there are some writ petitions filed before it challenging the IT Rules.

Agreeing to the same, Mr. Singhvi reiterated -

"This matter needs to be heard finally with a compilation. Hearing on the interim order and main matter is the same, it is a duplication."

Mr.Datar referred to the order passed by the Supreme Court transferring the petitions challenging the Agnipath scheme from SC to the Delhi High Court and suggested that the petitions can be transferred to any of the High Courts. He suggested that all the petitons could be transferred to the Bombay High Court as it has passed a detailed order to stay the enforcement of IT Rules against digital media.

In a lighter vein, the Bench remarked -

"Considering which Court has a relatively lesser vacancy we would transfer there."

In the interim, Mr. Mehta sought a stay on the interim orders of the High Courts. It was objected to, by Mr. Singhvi, who submitted, "That would be allowing the SLP."

The bench said that it cannot pass any orders without hearing the parties.

The matters are to be next listed on 27th July.

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