Sub-clauses 1 and 3 of clause 9 of the new rules were, on the face of it, “manifestly unreasonable”, and “the indeterminate and wide terms of the rules bring about a chilling effect qua (regarding) the right of freedom of speech and expression of writers/editors/publishers” as they can be hauled up for anything if authorities so wish, the high court said on Saturday.
A bench of Chief Justice Dipankar Datta and Justice GS Kulkarni stayed these 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.
“Dissent in democracy is vital… 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 judges 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, said the court.
The order came on petitions filed by legal news portal ‘The Leaflet‘ and journalist Nikhil Wagle which challenged several provisions of the new India IT Rules claiming that they were vague and likely to have a “chilling effect” on a citizen’s right to free speech. The rules went beyond the scope of the main IT Act and also the “reasonable restrictions” on freedom of speech and expression allowed by Article 19 (2) of the Constitution, the petitioners said.
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The rules are “manifestly unreasonable and go beyond the IT Act, its aims and provisions,” the court said.
The India IT Rules 2021 include an appendix on ‘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 pointed out that the IT Act itself did not have a provision for bringing in such censure on online content. The PCI and CTVN norms were formulated under separate statutory legislation but the Union government tried “illegally” to grant an “exalted status” of mandatory compliance to such norms, the court 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,” the high court said.
The court, however, refused to stay Clause 14 that pertains to setting up of an inter-ministerial committee with powers to regulate online content and deal with grievances and breach of rules, and Clause 16 which is about blocking of online content in case of an emergency.