MUMBAI: For a healthy democracy and proper administration of the state it is healthy to invite criticism of all those who are in public service for the nation to have a structured growth but with the new IT Rules in place, one would have to think twice before criticizing anyone, observed the Bombay High Court on Saturday while staying the key provisions of the new IT Rules.
The bench or Chief Justice Dipankar Datta and Justice Girish Kulkarni was hearing petitions filed by legal news portal The Leaflet and senior journalist Nikhil Wagle challenging several provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (new IT rules). The petitions filed through senior advocate Darius Khambatta (for Leaflet) and advocate Abhay Nevagi (for Wagle) claimed that the new IT rules have a chilling effect on free speech and that it aims to gag the media.
The Union government through additional solicitor general Anil Singh, however, claimed that the new IT rules had nothing to do with free speech and that it was only aimed to stop the spread of fake news.
The bench had on Saturday stayed Rule 9 of the new rules, which particularly deal with mandatory adherence to certain code of ethics for all the writes, publishers etc, posting anything online. Rule 7 of the new IT rules provide for action against those, who violate the Rule 9.
While the bench stayed Rule 9 on Saturday, a detailed copy of it's interim order was made available on Monday.
In it's 33-page order, the bench said, "Dissent in democracy is vital. It is, however, the checks and balances that make a democracy work. There can be no two opinions that a healthy democracy is one which has developed on criticism and acceptance of contra views."
"Opinion based on criticism reinforces its acceptance in a democratic society. For proper administration of the State, it is healthy to invite criticism of all those who are in public service for the nation to have a structured growth but with the 2021 Rules in place, one would have to think twice before criticizing any one even if s/he may have good reasons to do so," the bench added.
The bench further said that allowing the new IT rules to operate would result in the writer/editor/publisher standing the risk of being punished if the inter-departmental committee is not in favour of criticism of any public figure. "The indeterminate and wide terms of the Rules bring about a chilling effect qua the right of freedom of speech and expression of the writers, editors and publishers because they can be hauled up for anything if such committee so wishes. The 2021 Rules are, thus, manifestly unreasonable and go beyond the IT Act," the judges held.
In it's orders, the bench further said that our democracy would thrive only if the people of India regulate their conduct in accordance with the preambular promise that they took while giving to themselves the Constitution.
"Liberty of thought is one of such promises. Exercising this liberty, expressions take shape. People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles," the bench opined, adding, "This regime would run clearly contrary to the well-recognized Constitutional ethos and principles."
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