The Supreme Court of India, comprising of the bench, Justice AM Khanwilkar and Justice Abhay Oka, on Monday (09 May 2022) passed the order of stay on the proceedings pending before various High Courts on petitions against the new Information Technology Rules (Intermediary Guidelines and Digital Media Ethics Code) 2021, notified by the Centre in February 2021. This rises the question on Privacy Concerns and the Causes of Freedom of Media in the said Law. The stay order will be applicable till the next hearing that will take place at the Supreme Court on 19 May 2022.
The new rules, notified in February 2021, “constitute a set of sweeping regulations framed to regulate social media companies, streaming and digital news content, virtually bringing them, for the first time, under the ambit of government supervision” as contended by the petitioners. However, the Government claimed that “The Rules are designed to empower ordinary users of social media. The victims of abuse at social media platforms shall have a forum for redressal of their grievances”.
The Hon’ble Supreme Court has in many instances of the past has ensured that the Laws so framed by the Government is reviewed and is provided the appropriate standing, in-line with the Constitution of India. In March of 2015, based on the mis-interpretation and misuse of Executive Powers, the Government/Police had arrested Ms Shreya Singhal for some provisions under the IT Act 2000: ‘to arrest and imprison an individual for any “offensive and menacing” online posts’. On 24 March 2015, a bench of Justices J. Chelameswar and R.F. Nariman ruled in favour of Shreya Singhal in the case against Union of India and declared Section 66A unconstitutional for “being violative of Article 19(1)(a) and not saved under Article 19(2)”.
The Stays issued by different Courts in the Country
The Bombay and Madras High Court in late 2021 had stayed Rule 9(1) and Rule 9(3) of the IT Rules 2021, for being ‘no locus standi’; The provisions deal with the code of ethics under the new IT rules. The Madras High Court also directed the centre to not take any coercive action against digital media organisations under the new IT rules. The Madras High Court also said that there is prima facie “substance in the petitioners’ grievance” that the mechanisms to control the media under these rules “may rob the media of its independence”. The Digital News Publishers Association, an organisation of 12 digital media outlets, along with journalist Mukund Padmanabhan, had filed the plea at Madras High Court. The Bombay High Court stay was in specific to; Rule 9 being prima facie found infringing the freedom of speech and expression. The court put an interim stay on the operation of the rules. The Bombay High Court had passed the order based on pleas filed by digital news website The Leaflet.
The Kerala High Court had also passed orders in March and July saying that no coercive action should be taken on the basis of the 2021 Rules against petitioners who had approached the court.
The Delhi High Court has also been hearing two petitions challenging the Centre’s regulations. In the Delhi High Court, the petition was filed by the Foundation for Independent Journalism, a trust that owns the news website The Wire. The other plea was filed by the news website The Quint.
There have been reports, that the centre has been operative on the passed law even after the Stay by the different courts were in vogue. Internet Freedom Foundation, as Indian non-governmental organisation (NGO) that conducts advocacy on digital rights and liberties, based in New Delhi, has reported that, the information collected by the ministry during its execution in a related case goes against the stay by the High Courts. “There has been a violation of the Bombay High Court’s intent of staying the operation of certain provisions of the IT Rules”, “This demonstrates a larger pattern in which compliance is not being implemented in letter and spirit by various arms of the executive.” said Apar Gupta, Executive Director of Internet Freedom Foundation, (as told to Scroll.in).
There have been a lot of out-cry both from Domestic and International observers and media houses for the Rule being unconstitutional, with the potential of having a “chilling effect” on media freedom and also concerns of Privacy. There have been voices of individual journalist and evangelists about concerns of individual immunity and protection whole reporting. Even a United Nations Special Rapporteur, noted that this provision goes against India’s obligations towards free speech and the right to privacy. The Rule may be under review by the Government as the Hon’ble Supreme Court may seek comments of the Government on Affidavit, and also the Court may call for setting-up of a High-Level committee to study the need for the IT Rule and also to validate the ‘Constitutional Compliance’ of the provisions of the Rule. But, on true introspection, and also observing the patter of many of the High Courts of the Country allowing ‘Stay’, (or providing relief to the petitions) and the intervention of the Hon’ble Supreme Court; proves that the law requires a review and this inturn indicates that, there is going to a large-scale dilution from the originals in the subsequent days, to the Information Technology Rules (Intermediary Guidelines and Digital Media Ethics Code) 2021.