Supreme Court dismisses govt plea against hearings on IT rules in HCs

The Supreme Court on Friday turned down the Centre’s plea to restrain all high courts in the country from passing any order on the government’s new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, which has been challenged in multiple petitions by tech companies, digital news publishers and individual citizens.

Refusing to pass any interim order for now, the Supreme Court said the Centre’s transfer petition for shifting all cases pending before different high courts to the top court will be heard on July 16.

The bench of Justices AM Khanwilkar and Sanjiv Khanna tagged the Centre’s petition with a clutch of other petitions related to regulations that cover over-the-top (OTT) platforms such as Amazon Prime, Netflix and Hotstar. The 2021 IT Rules too apply to OTT platforms, and have become contentious for how it affects social media and digital news.

On March 23 this year, a three-judge bench of the top court stayed all High Courts from considering any fresh petitions in connection with the OTT regulations. It will be this bench that will now consider the transfer petition by Centre with regard to petitions challenging the IT Rules 2021 on July 16.

Solicitor General Tushar Mehta who appeared for Centre, informed the Court that petitions against the IT Rules were pending before the high courts of Delhi, Madras, Bombay and Kerala.

These petitions include those by WhatsApp, which has challenged clauses requiring originator of a private message to be traced, news publishers and broadcasters, who have said it violates the fundamental right to free speech, and private citizens like TM Krishna, who has challenged the entirety of the rules on multiple grounds.

Mehta stated that the Kerala High Court on Friday had ordered interim protection to the News Broadcasters Association from any coercive action for non-compliance under the IT Rules.

The Delhi High Court, on the other hand, refused protection to another set of petitioners. Mehta urged the Court to stay proceedings before various High Courts till the next date of hearing.

The bench said, “Today we are simply tagging this matter with the other pending case. That matter is pending before a bench presided over by Justice DY Chandrachud. We will not issue any order except to list this petition before the appropriate bench on July 16.”

The Foundation for Independent Journalism, which runs the news website The Wire was present during the proceedings on caveat. It was the first to challenge the rules before the Delhi High Court in March this year. Later, the Quint Digital Media Limited, which runs the website The Quint, also filed a petition that is now pending with the Delhi High Court. Online legal news portal Live Law also moved the Kerala high court against the rules.

Senior advocate CU Singh and advocate Liz Mathew, who appeared for the Foundation and Live Law respectively, informed the Court that the matter heard by Justice Chandrachud had nothing to do with the challenge to IT Rules 2021. “Those petitions were filed prior to the coming of the IT Rules 2021 and are on a completely different issue,” said Singh.

The IT Rules 2021 were introduced in February this year. The new rules apply to digital news media platforms, social media intermediaries and OTT platforms, bringing all digital media functionaries under a three-tier oversight mechanism for regulation of content.

This comprises of a grievance officer responsible to deal with complaints within 24 hours. The two remaining tiers consist of a self-regulatory body of experts headed by a former judge, and an inter-departmental committee headed by a senior bureaucrat of the Ministry of Information and Broadcasting.

The Calcutta High Court too is considering the validity of the IT Rules in a PIL proceeding while a media house has gone to the Karnataka High Court challenging the Rules in question.

These petitions have largely claimed that the Rules curtail and restrict the freedom of press in India and claim the conditions imposed under the Digital Media Ethics Code and guidelines to be onerous and beyond the scope of the Information Technology Act 2000.

The use of vague words such as “good taste” and “decency” in the Ethics Code are additional challenges to the Rules which, according to many of the petitioners, gave “pervasive control to state over published content”.

However, the Centre has said that the Rules are intended to provide speedy redressal of complaints to enable taking down harmful content, personally intimate pictures or videos of individuals within 24 hours. The Rules also require the media functionaries to cooperate with the Government and investigating agencies for purposes of verification of identity, detection and prevention of crimes, and investigation or prosecution of offences.

“The Supreme Court’s decision demonstrates that it will not simply believe the government’s assertion that the Rules are perfectly legal unless they unpack the complex regulations. Government could have prevented this situation by not rushing in with the Rules. High Courts interfered as they felt the Rules could be detrimental to online media freedom. This apprehension also stands affirmed by the top court,” said Raman Jit Singh Chima, Asia Policy director and senior international counsel at Access Now.