The IT Rules fail the test of constitutionality 

Synopsis: In this article, we will analyze the IT Rules 2021. How it poses danger to the freedom of speech and expression. We will discuss the various orders passed by the High Courts. 

Introduction 

Recently, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were notified on February 25. 

Today, there are more than 18 petitions challenging the constitutionality of the IT Rules in various high courts.

What are the various High Court orders wrt the rules?

The interim orders emerged in three cases. 

1) Kerala High Court 

The order of the Kerala High Court restrained any action against the petitioner. The order stays a regulation framed by the central government. 

2) Bombay High Court 

The Bombay High Court also stayed two core provisions sub-rules (1) and (3) of Rule 9 of the IT Rules that govern online news media platforms. 

Rule 9 required compliance with a “code of ethics” that would be applied by a three-tiered structure presided over by the Ministry of Information and Broadcasting.  As per the court, the provisions for media governance go far beyond the allowance permitted by the principal provisions of the Information Technology Act.

The court reasons that the compliances under the “code of ethics” either lack the force of law, or have a distinct statutory framework such as under the Cable Television Networks (Regulation) Act. 

Also, as per court, under IT Rules, people would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression. 

3) Madras High Court 

The court confirmed the pan-India effect of the earlier decision by the High Court of Bombay. Hence, today the IT Rules are broadly inapplicable to digital news media outlets.

What do the orders of the courts signify? 

The interim orders show judicial consensus. According to the courts, the IT Rules conflict with our constitutional freedoms in two clear ways.  

First, they lack statutory backing.  

Second, they substantially harm the freedom of speech and expression of users of the internet.  

This has resulted in an effective restraint on the provisions against online news portals and social media platforms.   

How has Union Govt responded?

The Union government has filed a transfer petition before the Supreme Court. This would effectively transfer and bundle all existing challenges without serving “transparency, accountability and rights of users”. 

The IT Rules achieve the very opposite of such goals. The best solution is to recall the IT Rules.  

Source: This post is based on the article “The IT Rules fail the test of constitutionality” published in The Indian Express on 30th September 2021.