'How can you restrict one's liberty of thought?' says Bombay HC on New IT Rules

Mumbai: The Bombay High Court on Friday (August 13) asked the Union government what was the need to introduce the recently notified Information Technology Rules, 2021 without superseding the existing IT Rules that came into effect in 2009.

A bench of Chief Justice Dipankar Datta and Justice GS Kulkarni reserved its order on two petitions pleas seeking an interim stay on the implementation of the new Rules.

The pleas, filed by digital legal news portal Leaflet and journalist Nikhil Wagle, raised objections to several provisions in the new Rules and said these were likely to have a "chilling effect" on a citizen's right to free speech as guaranteed by the Constitution.

The petitioners also claimed the Rules went beyond the scope of the parent IT Act as well as the reasonable restrictions imposed on speech and expression by Article 19 (2) of the Constitution.

On Friday, the bench said orally that it was inclined to grant limited relief to both petitioners over serial number nine of the new Rules that related to adherence to a code of ethics.

Earlier during the day's hearing, Additional Solicitor General Anil Singh, appearing for the Centre, defended the prescription of such ethics saying that even the Press Council of India (PCI) prescribed a code of ethics to be followed by journalists.

The bench, however, pointed out that PCI guidelines were advisory norms on behaviour and did not carry any drastic punishment for their breach.

"How can you put such an exalted status on the PCI guidelines? That not following those guidelines will lead to penalty? Unless you have the liberty of thought, how can you express anything? How can you restrict one's liberty of thought?" the bench said.

Singh, however, said the petitioners' fear of adverse action on breach of the new Rules were premature.

He said a specially designated committee that will be empowered to take action against those in breach of the new Rules, particularly regulation numbers 14 and 16, that the petitioners were objecting to besides number nine, was yet to be designated.

Serial numbers 14 and 16 of the new Rules pertain to powers of an inter-departmental committee and to blocking of information in case of emergency respectively

The HC, however, said the above argument could not be accepted. "There is a catch here.You may say there is no urgency, or no committee. But the sword is hanging on their heads," the HC said.

Advocate Khambata, who appeared for Leaflet, and advocate Abhay Nevagi, who appeared for Wagle, further argued that the Union government had brought in the new Rules, with more drastic checks on publishing content online, by way of a delegated legislation. However, the Rules, in effect, would act like a substantive law.

Nevagi also told HC the new Rules sought to take away the protection granted against penal action to intermediaries under section 79 of the IT Act.

He showed the bench a portion of the Centre's affidavit, filed in the case on Thursday, which stated that the protection to an intermediary under Section 79 can be taken away if there is non-compliance with the new Rules.

The HC said this was "very serious" and asked how could the rules take away protection granted by a law. "Under 69A (1) (ii) of the IT Act, the 2009 Rules have been framed. What was the necessity for the Union government to bring in subsequent rules without superseding the prior rules and create a substantive law through the Rules?" the HC further asked.

ASG Singh, however, reminded the court it was presently dealing only with interim relief and not on the merits of the new Rules. He further said the Central government had felt the need to bring in the new Rules in order to check the spread of fake news, illegal content etc.

The HC said will pronounce its order on the interim relief sought via the pleas on Saturday. 

(With inputs from PTI)