"Dissent in democracy is vital. There can be no two opinions that a healthy democracy is one that has developed on criticism and acceptance of contra views. Opinion based on criticism reinforces its acceptance in a democratic society,” held a two-judge bench of the Bombay High Court on Saturday, August 14, as it stayed parts of the new Information Technology rules that the Union government introduced earlier this year.
The Bombay High Court was prima facie of the opinion that Rule 9 does not conform to the Information Technology Act as it is also an intrusion into the fundamental rights guaranteed under Article 19(1)(a) of the Constitution of the publishers. The High Court was hearing petitions filed by legal news portal The Leaflet and journalist Nikhil Wagle, challenging several provisions of the new IT Rules, claiming they are vague and likely to have a "chilling effect" on a citizen's right to free speech.
A bench of Chief Justice Dipankar Datta and Justice GS Kulkarni stayed two sub-clauses of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, saying they seem to violate the petitioners' constitutional right to freedom of speech and expression under Article 19. “For proper administration of the State, it is healthy to invite criticism of all those who are in public service for the nation to have a structured growth, but with the 2021 Rules in place, one would have to think twice before criticising any such personality, even if the writer/editor/publisher may have good reasons to do so," the court said.
Sub-clauses 1 and 3 of clause 9 of the new Rules were, on the face of it, "manifestly unreasonable" and that the “indeterminate and wide terms of the Rules” bring about a “chilling effect” regarding the right of freedom of speech and expression of writers, editors or publishers as they can be hauled up for anything if the authorities so wish, the High Court said. If a committee proposed under the rules did not approve of criticism of a public figure, anyone who criticises such a person would invite punishment, the court added.
Rule 9 of the IT Rules 2021 include an appendix on the 'Code of Ethics' that a publishing body, journalist, an intermediary or any other person posting content online must adhere to. These norms include an advisory code of conduct prescribed by the Press Council of India (PCI) and the Cable TV network (CTVN) Rules. The Bombay High Court agreed with the petitioner’s argument that the IT Rules went beyond the scope of the main IT Act.
The court said that allowing the operation of the 2021 Rules in its form and substance to operate would result in the writer, editor or publisher standing the risk of being punished and sanctioned, should the inter-departmental committee be not in favour of criticism of any public figure.
“A democracy would thrive only if the people of India regulate their conduct in accordance with the preambular promise that they took while giving to themselves the Constitution. Liberty of thought is one of such promises. Exercising this liberty, expressions take shape. Should at least a part of Rule 9 of the 2021 Rules be not interdicted even at the interim stage, it would generate a pernicious effect,” the bench said.
“People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles. This regime would run clearly contrary to the well-recognised Constitutional ethos and principles.”
- Bombay High Court
The HC, however, did not stay clause 14 that pertains to the setting up of an inter-ministerial committee with powers to regulate online content and deal with grievances and breach of rules, as well as clause 16, which is about blocking of online content in case of an emergency. As such a committee was yet to be formed, it did not see any reason to stay clauses 14 and 16 at present, the court said. The HC also did not stay sub-clause (2) of clause 9, which provides for action in case of the contravention of any law in force for the time being.
The court asked the Union government to file a detailed affidavit in response to the current order within three weeks and posted the case to September 27 for a final hearing.
With PTI inputs