Mumbai: The Bombay High Court bench of Chief Justice Dipankar Datta and Justice Girish Kulkarni on Friday sought to know from the Union government as to why it brought in the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules (IT rules) of 2021 when already the IT Rules of 2009 provided regulation of objectionable content on social media platforms. The bench said that there should be liberty to express thoughts and that Union government cannot restrict the expression of thoughts.
The bench is likely to pass interim orders on whether to stay the newly introduced IT Rules.
The bench was hearing two petitions filed by legal news portal The Leaflet through senior counsel Darius Khambatta and senior journalist Nikhil Wagle through Advocate Abhay Nevagi respectively. The petitions claimed that the new IT Rules are nothing but an assault on free speech.
On Friday, additional solicitor general Anil Singh submitted that the new IT rules had nothing to do with free speech. He argued that the new rules were aimed at combating fake news. He pointed out that the new Rules provide for a three-level mechanism for resolving grievances against content by news portals.
“The first level is where the grievance can be resolved at publisher level, the second one is at the level of self-regulatory authority, which is headed by a former Supreme Court judge. The Union government comes into the picture at the third level,” ASG Singh submitted.
Meanwhile, senior counsel Khambatta countered the submissions advanced by the ASG. He said that the Union government has attempted to introduce a parallel mechanism to the already available mechanism.
“The 2009 Rules set up a detailed hierarchy of officials. That is already in place. The new IT Rules aim to set up a parallel mechanism. There would be a complete chaotic situation," Khambatta argued, adding, "Access to certain content that is objectionable can be blocked only on six grounds viz sovereignty, integrity, security etc. But there is no mention of this."
Having noted the contentions, the judges questioned ASG Singh what was the rationale to introduce the new IT Rules.
“Can new Rules be brought in if already the issue is being taken care of by substantive legislation? When you have the Press Council Of India's Code of Ethics, then you have Rule 5 of old IT Rules of 2009. There is no material to show these provisions stand abrogated,” Justice Kulkarni said.
"How will you manage same action under so many laws? You will act under PCI, Cable TV Act, Old IT rules? How will it be managed?" the judge questioned.
Further, chief justice Datta said that the code of ethics as laid down by the PCI are "behavioural patterns" and the journalists are expected to adhere to them.
The bench said it would pass interim orders on the matters on Saturday evening.
"See the guidelines even for the photojournalists as given by the PCI. These are mere dos and don'ts. It doesn't say if not adhered penal action would be attracted. These are behavioural patterns," CJ Datta said.
"Unless you have the liberty of thought, how would you express it. You are restricting the liberty of thought," the chief justice added.
Further, the chief justice asked the ASG, "Can you tell us what was the need for the Union to come up with a new set of IT Rules without superseding the ones already available from 2009?"
The ASG, however, didn't respond to the queries saying that these could be answered at the time of final hearing of the matter.
The bench said it would pass interim orders on the matters on Saturday evening.
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