Why additional rules when IT Act has sufficient checks: Bombay HC asks Centre

The bench, while hearing PILs filed by a digital news portal and journalist Nikhil Wagle, was informed that the government was trying to supersede substantive law by way of delegated legislation

The Bombay high court (HC) has reserved its order in the public interest litigations (PIL) seeking interim reliefs against the operation of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, announced by the Ministry of Electronics and Information Technology (MeitY) in February and implemented in May.

The court will pass its order on Saturday at 5.30pm. (HT File)

While hearing the concluding arguments, the court sought to know from the Centre the need for additional rules while the provisions in the existing IT Act (2009) sufficed to make publications, portals and intermediaries answerable for posting any content that is objectionable and liable for penal action.

The division bench of chief justice Dipankar Datta and justice Girish Kulkarni, while hearing two PILs filed by digital news portal The Leaflet and senior journalist Nikhil Wagle, was informed that by prescribing code of ethics under the new rules, the government was trying to supersede substantive legislation by way of delegated legislation.

The bench was further informed that the Press Council and Cable Acts already had code of ethics that were being adhered to by the print and electronic media. Hence, bringing in additional rules would have a “chilling effect” on editors and authors. The bench was also informed that the objection was to rules 9, 14 and 16, which dealt with code of ethics, formation of an inter-departmental committee at the ministry level and blocking of information in the event of an emergency.

Thereupon, the bench remarked that it was inclined to grant limited interim relief to the petitioners with regards to rule 9.

Additional solicitor general Anil Singh for the Centre, however, urged the court to not pass such orders as the petitioners’ fears of adverse action on the breach of the new rules were unfounded. He stated that there were three layers of answerability of the publishers, first through self-regulation and second through regulation by a body of the publishers, and only then would the matter be taken up by the committee of the ministry. He added that the committee was not yet notified but was in the process of being formed.

The court, however, pointed out that while the committee formation yet underway, the publishers would have to deal with the fear of having a sword hanging on their heads.

Advocate Darius Khambata for The Leaflet pointed to the fact that a journalist is at the threat of being held responsible for any inaccuracy in the event of writing or printing something without getting both sides. This, he said, would restrain one from writing anything at all, which is against the right to freedom of speech. He added that while section 69A of the IT Act dealt with blocking of content, in the event of its failure, the government was trying to have a second set of rules to achieve its purpose.

Advocate Abhay Nevagi for Wagle informed the bench that the intermediaries had been protected against penal action by section 79 of the IT Act. However, the new rules took away that protection in case of non-compliance. He added that as the scope of the definition of intermediary was very wide, his client was also an intermediary. However, when the court questioned how Wagle could be considered an intermediary, Nevagi said the definition needed interpretation.

When the court sought to know how the new rules could take away the protection granted by a law, Singh informed that it was a question of merit and as the court was only dealing with interim relief, the question would be answered at a later stage. He added that the rules were brought in to check the spread of fake news and illegal content only.

The court will pass its order on Saturday at 5.30pm.