Thread by @barandbench

#BombayHighCourt to continue hearing pleas filed by Mumbai journalist and a digital news portal challenging recently notified IT intermediary rules of 2021.

Hearing before Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni.

#ITRules2021

@GoI_MeitY

The Court had directed the Central government to file a short affidavit giving reasons why stay on IT Rules should not be imposed.

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Accordingly an affidavit was filed by the Ministry of Information and Broadcasting.

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Sr Adv Darius Khambata appears for the digital news portal - Leaflet.
Adv Abhay Nevagi appears for journalist, Nikhil Wagle.

ASG Anil Singh to represent the Centre.

@waglenikhil
@TheLeaflet_in

ASG begins his submissions.

The submissions of the petitioners in brief was that the Rules are beyond the parent Act.
That there are restrictions on publishers.
That it suffers from manifest arbitrariness and unreasonable.

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ASG: As for the ad-inteirm stay, my submission is that there is no urgency or need to stay the rules. There is no adverse action against the petitioner.
I willl show the averment in the petition that they have complied with the rule.

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ASG: Out of 1800 digital media publishers, 97% publishers of news and current affairs content have been complying with the Rules.
I will show from my affidavit also.

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ASG: Many publishers have formed self-regulatory bodies. And though the petitioner has mentioned that they have received several complaints, in my affidavit I have said, that from the website there are only 2 complaints which the petitioners have referred.

ASG: The grievance has been taken care of.

The complaint is in respect of Level III. That is when Ministry comes in which is the Oversight mechanism.
There is not a single instance where Ministry’s intervention is noted.

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Court: Has the committee been constituted?

ASG: By the Central government.. ? Let me find out.

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ASG: Under the Rules, it is the Ministry which constitutes the internal committee and so far it has not been notified yet.

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ASG: Kindly see Rule 14 for a moment. Most of the names have been finalised I have been told, but the committee has to be constituted.
Why I am saying no urgency is because this is Level III.

Level I is the published, Level II is the self-regulatory body of publisher.

ASG: Level III is Ministry. Hence I spoke of the urgency.

I will give a brief background.

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ASG: There were several petitions filed seeking formulation of guidelines because there was circulation of lot of fake news..

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ASG: So in public interest, many petitions were filed. Delhi High Court dismissed and thereafter SLP was filed in Supreme Court which sought for guidelines.
The transfer petitions were filed..
The listing is possible, but I don’t know why it is not listed this week.

ASG: Why have they sought for stay on the rules I will just point out.
Kindly see the reasons mentioned in the petition. First they say it is a cost factor, then they say chilling effect on the journalists…
They have received several frivolous grievances..

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ASG: Though they have mentioned several complaints, what is there is only 2 complaints.. Cost factor cannot be a ground for stay on legislation.
The Oversight mechanism stage has not come.

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Court: Their basic grievance is on Rule 9, 14 and 16. How does 16 operate?

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Court: Suppose 2 days back there is content uploaded, that has to be taken down.. What is the publisher supposed to do?

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Court: Authorised officer as per Section 69A have to be appointed. Is he present?

Khambata: Those officers have already been authorised as per rules of 2009 (IT Procedure and Safeguards for blocking for access of information by public Rules). All that has been done.

Khambata: There is a detailed procedure on how blocking is to be done.. Even in case of emergency in case of Rule 9.

Court: These are not superseded by the present rules?

Khambata: No these exist.

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Court: You are not aggrieved by the Rule 9?

Khambata: No because those operate within 69A which is squarely within Article 19(2).

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Court: But Rule 16 also expressly mentions within Section 69A, so that is also within 19(2).

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Khambata: We are not objecting to powers in the rules limited to 19(2). The 2009 rules already provide all necessary rules. Why do we need Rule 16 then?

Court: Can you show us a provision where action be taken dehors Article 19(2)?

Khambata: Kindly see Rule 9..

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Court: Mr Singh, say some content is published which may not be strict sense in line with journalistic standard of conduct but does not violate Art. 19(2), would publisher be liable to action?

ASG: I have not filed my affidavit on merits.

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Court: We are trying to find a workable solution. The committee is not constituted. If you invoke Rule 16, then you can go till Level II but not Level III, so 16 action cannot be taken.
Khambata’s apprehension is Rule 9..

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Court: He feels it is within 19(1)(a) and does not attract 19(2), would you still proceed to take action?

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ASG: Will your lordships see two definitions from my affidavit? That might help answering the question..

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ASG: There is a Code mentioned and some ethics standards. Which has also been followed by print media, electronic media..
This is a general thing.. You (digital media) are also doing business only..

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ASG refers to the Cable TV rules and the judgment on media trial..
ASG: The airways are owned by the government, so there may be some restrictions which may go beyond 19(2) but that can be considered at the stage of merits. But since the Court has asked..

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ASG: Your lordships are now considering urgency.. that issue can be considered at a later stage..

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Court: Can something which is already governed by two independent legislations - Press Council Act, Cable Television Act, and rules, can be brought within the purview of these Rules?
By prescribing these code of ethics, you are bringing something under delegated legislation

Court: Which is already available under the parent legislation. Would it not entrench on the parent legislation?
When there are Acts, how can it be controlled by Rules?
Can you make a statement that whatever action would be confined to Art 19(2). And within 69A..

Court: If it is confining to Clause (2) of Article 19.. then they have no problem..

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Court: There is nothing to show that the mechanism there stands abrogated..
How can you subject so many actions..? Press council of India Act, Cable TV, these Rules.. how do you manage all this.. ?
There willl be multiple complaints against one person under different enactments.

Court: The Press Council, Cable TV acts referred by us were in terms of interference in judicial proceedings..
If you can take instructions, whether this will be confined to Art 19(2)..

Court: These PCI guidelines are norms of behaviour. How can you put such an exalted status that not following those guidelines would lead to penalty? If you can make this statement… of not going beyond Art 19(2)… ?

ASG: I am only saying there is no urgency right now..

Khambata: My learned friend is anxious to keep the sword hanging on our head..

ASG: What is the grievance? There is grievance against Level III, that committee is not present.. How can I take any action..?

Khambata: All you have to say is that you will not take action in terms of these rules.. 9, 14 and 16.. that is all…

ASG: Rule 9(1) says they will observe code of ethics.. there is no penal action. That will under Rule 14, but that is when the Committee is constituted..

Court: Your contention is because committee is not constituted, there is no immediate urgency, because no action is possible

Court: So do we take it that all those who are affected will fly with the same wings as they had prior to effectuating these rules..

ASG: I am only requesting.. Is there such a grave urgency to grant stay?

Court: There is a catch here.. You may say there is no urgency, or no committee. But the sword is hanging on their head..

ASG: The matter is pending before your lordships.. In the event there is any order passed which is not possible, because no committee, but in case..

ASG: The petition is pending, they can always approach the Court.

Court: Fear of the rules operating.. is a fear on the infringement of freedom of speech.

Court: Unless you have liberty of thought, how do you express it.. These are all behavioural patterns that have to be implemented. One has to be humble in dealing with this, but if one is not, they will be penalised?

Court: What is the fundamental objective of journalism..? There are Norms of journalistic conduct. Something is there for self-regulation..

ASG: They have to adhere.. there are experts in departmental committee. They will interpret accordingly.. First it gets to publisher, then regulatory body of publishers..

ASG: That body will be headed by retd Supreme Court judge. Something they will have to adhere to.
There is possibility of abuse, but there is no need to strike it down. The misuse can be taken care of.

ASG: I will continue my argument on urgency..

ASG: I only want to read two judgments.. on interim reliefs.
Points out two cases from a compilation..

First is Siliguri Municipality & Ors. : indiankanoon.org/doc/1198570/

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ASG: I am only referring to the larger public interest.. These Rules are in public interest. There are a lot of fake news now. We have to take care of that now.

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ASG: The judgment of Division Bench of our court dealing with TRAI matter..
That is on abuse of airways..

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Court: This inter-departmental committee is not formulated so far.. when would it?
Till that committee is formed, there is no need for worry, as no action would be taken under Rule 14..

ASG: That Level III stage has not come..

ASG: When the committee is formed, they will be intimated..

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Court: So until this committee is formed.. Rule 8 and 9 has no teeth.. Would they be operated till then?

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The Bench’s microphone has been switched off inadvertently.. they cannot be heard.

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ASG is buttressing his point on the urgency to stay the IT Rules in the interim..
There is no oversight committee in place. So no penal action can be taken.. Whatever violations happen, the regulatory body will take care of it.

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ASG: the mechanism is set out.. Person having grievance against content can raise it before the publisher, who is supposed to tackle it, else go before the self-regulatory body and in the last case, before the Ministry (which is the Committee, which is yet to be notified)

ASG: Page 61 of the petition.. a letter written by DigiPub of which Leaflet is a member.. Another member has gone to Delhi High Court, where relief was not granted.. and second member has come here, which is present petitioner.

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Court: Who has gone to the Delhi High Court?
Another member..? What are you saying? If one member goes to one high Court, will that bar other members from approaching other high courts?

ASG: I am not on that.. I am saying is that on one representation, the members are approaching different High Court. But one high court has refused relief.. so when this Court is considering interim relief, they can consider that as well..

Court: You had shown us the rule making power, which is Section 87.. You pointed out clause (zg) which talks of guidelines for intermediaries..

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Court: What we propose to do.. is Rule 14 and 16 we are not touching for the present because in the absence of the committee..

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Court: So far as Rule 9 is concerned, we are inclined to grant limited relief, that for any alleged contravention of the rules, no action can be taken against you and Mr. Wagle without leave of the Court.

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Khambata: My first submission is the ultra vires nature of the 2021 rules..

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Khambata shows the affidavit filed by the Centre.

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Khambata: The 2009 rules already set out the guidelines. It is in place and operating.. The 2021 rules have set out the parallel regulation and they give a far wider scope of interdiction. The interference is not restricted.
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Khambata: What is left of the rules is far beyond the Section 69A. It is only under certain heads..

Khambata points out that the urgency is more after reading the affidavit.. They have not been able to show a single provision in the Act through which these Part III rules can be made..

Khambata: if there is anything which is under journalistic codes then someone will say that they can delete..

Court: So these rules create a substantive law..

Court: Under 69A (1) (ii) the 2009 rules have been framed.. What was the necessity for Union to bring in a subsequent rules without superseding the prior rules..
And create a substantive law through the rules..

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Khambata: This is precisely.. I seek leave to adopt this in my arguments milords..

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Khambata: they have not been able to point out under which provision these Rules have been made..
There is no provision.. and there is no answer on the power..

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Khambata: On the face of it no action has been taken.. but the 9 people who have been dissuaded from writing, there is no auditing of that..

The SC has squarely recognised the chilling effect on freedom of 19(1)(a) rights..

Khambata: Whether committee is constituted or not, action against me is taken or not, or if abuse is to be challenged or not..
The provision goes beyond Section 69A.. which it is a chilling effect..
If I as a journalist have to show both sides of the arguments… and justify…

Khambata: I will be censured, I have to give apology.. something which the parliament did not think of while promulgating these rules.
There is no estoppel to the constitutional challenge..

Khambata: And the affidavit has 2-3 pages on my compliance! I understand non-compliance, but compliance is an argument.. ?

Khambata: The short point there is that once your 19(1)(a) are affected, there is no way to say that since the business aspect is not involved, it cannot be considered..

Khambata: Rule 9 is a complete violation of free speech and Rules 14 and 16 are consequential on Rule 9. But Rule 9 ought to be stayed. One of the most precious rights to uphold. There is so much vibrancy on the internet..

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Khambata: In a constitutional democracy, that right to be wrong or inaccurate, to speak freely is important. It is an assault to the democracy.

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Nevagi submits the portion of the affidavit which states that the protection to an intermediary under Section 79 can be taken away if there is non-compliance with the Rules.

Court: Mr. Singh, this is serious!

Court: Let an intermediary come before us.. Let us take this with a pinch of salt. You have filed a PIL even though you are journalist. We will consider the intermediary issue later..

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Court: Definition is wide.. have you pleaded that you are such person (an intermediary).

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Nevagi: that definition is wide.. It is anybody who stores data.. even a lawyer can be an intermediary..

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Court : In governor’s matter - you cited a judgment.. Can you get hold of that.. There is something that requires pleadings.. It must show how a particular prayer requires pleadings..
You had cited that decision for some other purpose.. but I found something which is useful..

Nevagi: I am not seeking protection from myself.. But it is for others..

Court: There has to be some pleading for Rule 7.. We are contemplating Rule 9…

Nevagi: everyone is an intermediary..

ASG: Today we are concerned about an interim relief.. These points can be considered at the end..

Court: Tomorrow we will pass an order at 4 pm.

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Court: We will pronounce through VC at 5.30 pm tomorrow.

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