India court docket stays new know-how guidelines for violating free speech – JURIST – Information
The Bombay Supreme Court on Friday suspended two provisions of India’s IT rules (“the rules” or “rules”) aimed at making digital content publishers such as social media intermediaries, OTT (Over-the-Top ) and regulate online news and updated websites.
The provisions in question, Rule 9 (1) and (3), were enacted by the central government in February and refer to what is known as the Code of Ethics for Online Content Publishers. The order came after petitions were challenged against the rules for violating the overarching law known as the Information Technology Act (“IT Act”) and the fundamental rights to equality, freedom of speech and freedom of profession guaranteed by the Indian Constitution.
The challenges were posed by the digital news portal The Leaflet and journalist Nikhil Mangesh Wagle. They argued that the rules were draconian and arbitrary in that they went beyond the restrictions on freedom of expression provided for in Article 19 (2) of the Constitution. They further argued that the rules were ultra vires of overriding legislation, as they create new rights, obligations and liabilities that are incomprehensible in Section 89 of the IT Act, the decree that gives the government limited powers to set rules .
The court ruled partially in favor of the petitioners after finding that Rule 9 requires digital news publishers to adhere to the journalistic codes of ethics, namely the journalistic conduct of the Indian Press Council under the Press Council Act and the programming code under the Cable TV Networks Act (Regulation) . The court found that these were intended as moral sanctions and cannot be converted into legal obligations. The court also found that the Press Council Act and the Cable Television Network Act have their own independent mechanisms for handling violations, and that their respective legal frameworks cannot be applied to subordinate legislation under the IT Act with a separate purpose.
In passing this interim injunction, the court emphasized the importance of dissent in democracy:
There cannot be two opinions that a healthy democracy is one that has evolved from criticism and acceptance of opposing views. An opinion based on criticism strengthens their acceptance in a democratic society. For proper administration of the state, it is healthy to invite criticism of all those in the public service who stand for structured growth of the nation, but with the 2021 rules one would have to think twice before criticizing such a personality, even if the author / Editor / editor can have good reasons to do so without resorting to defamation and without encouraging other legislation to act.