Bombay High Court directs stay of operation of sub-rules (1) and (3) of Rule 9 of the Information Technology Rules, 2021

By - Sameeksha Negi*

The Bombay High Court has recently directed a stay of operation of sub-rules 1 and 3 of rule 9 of the new Information Technology Rules, 2021 which pertain to adherence to the Code of Ethics. The High court has prima facie observed that these provisions of the new IT rules infringe the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India and are also against the substantive provisions of the Information Technology Act 2002.  

Sub-rule 1 of rule 9 requires the publishers to observe the Code of Ethics laid down under the Appendix to the IT rules. Sub-rule 3 of rule 9 provides a three-tier mechanism involving, self-regulation by the publishers, self-regulation by self-regulating bodies of the publishers, and oversight mechanism by the Centre for ensuring observance and adherence to the Code of Ethics and for addressing grievances made in relation to the publishers. 

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The bench comprising Chief Justice Dipankar Datta and Justice Girish Kulkarni pronounced the interim order on two petitions, filed by digital news portal ‘The Leaflet’ and journalist Nikhil Wagle, challenging the constitutional validity of the new rules. The bench has granted 3 weeks to the Centre to file its reply to the said pleas and has listed the pleas for final hearing on September 27. 

While the stay was granted on certain provisions of Rule 9, the bench refused to grant a stay on Rules 7, 14 and 16. The bench refused to grant stay on Rule 7 observing that the petitioner, Nikhil Wagle “has not been able to satisfy us that he is an ‘intermediary’ within the meaning of Section 2(w) of the IT Act”. On refusal to grant a stay on Rule 14 which deals with constitution of an ‘Inter-Departmental Committee’, the bench observed that “...in our opinion, there is no immediate urgency inasmuch as inter-departmental committee is yet to be constituted.

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As far as refusal to grant stay on Rule 16 is concerned, the bench observed that “...such rule is pari materia to Rule 9 of the 2009 Rules which are still in operation. Also, it is not the petitioners case that they were at any time aggrieved by Rule 9 of the 2009 Rules”.

CLICK HERE TO READ ORDER.

*Sameeksha Negi has completed LL.M. from IMS Unison University, Dehradun this year.