MUMBAI: The Bombay High Court bench of Chief Justice Dipankar Datta and Justice Girish Kulkarni on Tuesday ordered the Union government to file it's affidavit spelling out why the operation of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules (IT rules) shouldn't be stayed. This comes after the bench opined that it would stay the new rules.
Meanwhile, the Union government told the bench that the new rules were brought in force after multiple petitions came to be filed seeking a comprehensive law to regulate online platforms and social media.
The bench was hearing petitions filed by legal news portal The Leaflet and senior journalist Nikhil Wagle, both claiming that the news rules are "draconian" and aim for "mass censorship." The petitions have claimed that the new rules propose to gag media and are an assault on free speech.
The bench had heard brief submissions of senior counsel Darius Khambatta for The Leaflet and advocate Abhay Nevagi for Wagle.
On Tuesday, the bench sought to know from Additional Solicitor General (ASG) Anil Singh if the Supreme Court would hear the application filed by the Union government seeking to transfer over 14 PILs filed before various High Courts challenging the same rules.
"The SC was slated to hear the application today. But I guess the hearing couldn't take place. Our application is pending," ASG Singh responded.
During the hearing, Singh pointed out that 14 petitions have been filed in the High Courts of Delhi, Kerala, Calcutta, Madras, Orissa and Karanataka. He said, "Prior to the new rules, several PILs were filed seeking directive against us (Union government) to regulate online platforms. We have done that only".
"Now after the rules are brought in force, there are over 14 petitions challenging it. Only the Kerala HC has stayed the rules. The Madras HC has just said not to take any coercive action and nothing beyond that," ASG Singh added.
Having gone through the orders of the Madras and Kerala HCs, Chief Justice Datta said, "What we propose is Mr Khambatta, if we stay the rules today and you post or publish anything that isn't protected under the new rules in the interregnum and later your petitions before us fail, then you shouldn't use our stay orders as a shield".
Khambatta responded, "Milords, propose to stay the rules with this caveat. We are open to it. We are open to action if there is anything posted beyond what is fundamentally not allowed as far as we don't breach provisions of the Constitution."
"So, we will let the Union government to point out to us if anything is published contrary to the rules, if we stay it. This would be workable," CJ responded.
At this, the ASG said, "I would submit, let there be a final hearing directly instead of passing interim orders. Also, we are about to file our affidavit in the SC so there is no need of a stay."
However, the chief justice pulled up the Union government for not filing it's say in the matter before any of the High Courts. "Mr ASG you haven't filed affidavits before any High Court despite orders, since March. Why to wait more?"
To this, ASG Singh said that the Union proposes to file a common and uniform affidavit before all the High Courts as well as the top court.
Then, Justice Kulkarni said, "Okay then Mr Singh, file a reply before us too. By when would it be possible?"
"Monday," the ASG replied.
"We will give you time but till then don't take any coercive action," Justice Kulkarni told the ASG, who opposed the suggestion by pointing out that none of the petitioners (Leaflet and Wagle) have said anything on coercive action.
"If that is the case then it would be problematic then. Because the sword of action is always hanging on their head. Why let them work under fear," the judges observed.
However, noting the opposition of the ASG to the suggestion to stay the rules for interim, the bench ordered the Union government to file a short affidavit on why the new rules shouldn't be stayed.
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