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Rules go beyond scope of parent Act: Pratidhvani challenges IT Rules 2021 before Karnataka HC – Updated

Truth Pro Foundation India, a non-governmental organisation that operates Kannada news portal Pratidhvani, has challenged the government’s Information Technology Rules, 2021 which brings digital news and current affairs publishers under regulation.

Filed in the Karnataka High Court, the the Foundation’s petition argues that the new rules are ultra vires (beyond the scope) to the parent IT Act, 2000, since it sets up classification of new entities, that is, news and current affairs publishers. Shivakumar Siddappa, the director of the Truth Pro Foundation India, filed the petition on the Foundation’s behalf in March. 

Siddappa pleaded for a stay on the IT Rules 2021, insofar as they define and apply to publishers of news and current affairs content. The petition asks for the provisions to be declared unconstitutional and ultra vires to the Information Technology (IT) Act, 2000. On March 31, the Karnataka High Court adjourned the petition by two weeks, reported LiveLaw.

The petition also argues that the Norms of Journalistic Conduct and Programme Code are extremely broad and cover subjective things like ‘good taste’ and ‘decency’. The Rules have stepped outside the remit of Section 69A, which was upheld noting its narrow scope and manner of operation of the IT Blocking Rules 2009. 

  1. Emergency blocking power to central government: Siddappa’s petition argues that the emergency power given to the I&B Secretary to pass interim orders to block content without giving the publisher an opportunity of hearing is ultra vires to the parent act. 
  2. Subordinate legislation cannot go beyond scope of parent law: There is no unlimited right of delegation and subordinate legislation cannot go beyond the object and scope of the parent Act. The IT Act deals with electronic data/record, its primary objective being to provide legal recognition electronic data, recognise the means of electric communications, and formulate a law around electronic data as evidence, among other things. The parent Act does not recognise digital news media as a separate category of entities and does not seek to subject them or their content to any special regulations, the petition states.
  3. Section 69A is a limited and specific emergent power as described by the Supreme Court in Shreya Singhal.This government currently uses this power to block information by directing intermediaries such as ISPs and social media platforms to delete posts or block certain websites/URLs. But Section 69A does not permit the government to delete content, make content, or (require any entity) to issue apologies. The Rules cannot regulate digital news media by requiring a Code of Ethics, and by extending other laws and rules to digital media. 
  4. Extends application of two regulations to digital media, without any such ambit in IT Act: The Rules cannot regulate digital news portals by requiring them to abide by a Code of Ethics, since that extends the application of two regulations — Progamme Code under the Cable Television Network Act, and journalistic norms under the Press Council Act — to digital news media. Both regulations are provided for under plenary laws. Press Council Act expressly regulates newspapers, without government interference and has a code of conduct. Cable TV Network Act imposes a programme code on TV operators. But the IT Act does not impose a programme code or regulates news portal in any manner, which is what is being done though subordinate legislation in the form of the IT Rules 2021. This is legally impermissible, the petition states.  
  5. Vague terms in the Rules, such as half-truths, good taste, decency, extends beyond the kinds of content under Section 66A, which the Supreme Court struck down in Shreya Singhal. 
  6. Central government has draconian powers: The Rules also permit the I&B Ministry with draconian measure with deletion, blocking, or modifying content. The Rules cannot set up an adjudicatory mechanism parallel to courts of law, which is complete beyond the scope of the parent Act. 
  7. Rule-making power in this case runs contrary to fundamental rights: No reading of the government’s rule-making power will allow for an entire regulatory regime for all digital news media entities without express statutory sanction. That will run the danger of adversely affecting fundamental rights. The petition pleaded the court to supply a sound reading of the rule-making power under the Act. 

Pratidhvani is the fourth publication to legally challenge the new rules, apart from The Quint, LiveLaw, and the Foundation of Independent Journalism and The News Minute editor Dhanya Rajendran.

In March, the Delhi High Court issued notice to the central government in response to FIJ and Rajendran’s petition, which had also argued that the Rules go beyond the scope of the parent law. In its petition before the Delhi HC, The Quint argued that the Rules enable the government to virtually dictate content to digital news portals, and squarely violate media freedom.

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LiveLaw secured interim protection from coercive action under the rules, after it filed a petition against the subordinate law before the Kerala High Court.

Note: This article has been updated at 17:06 IST with more information and details from the petition. Originally published at 11:32 IST. 

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