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Supreme Court stays IT Rules challenges before High Courts

This was based on a transfer petition filed by the government in April 2021.

The Supreme Court of India stayed High Court proceedings in cases that challenge the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and the Cable TV Networks (Amendment) Rules 2021 on May 9, according to a Bar and Bench report.

“We direct stay of further proceedings pending before the high courts in the respective cases or to be filed hereafter until the next date of hearing involving a challenge to the IT Rules or Cable TV (Amendment) Rules, which are the subject matter of proceedings in these cases.” – SC bench of Justices AM Khanwilkar and Abhay S Oka

The bench was hearing a plea by the central government to transfer IT Rules petitions being heard by various High Courts to the apex court. However, it has not stayed the interim orders already passed by these courts with respect to the IT Rules. “We are not touching any interim orders today… we will see on May 19, 2022”, Justice Khanwilkar told advocate Vrinda Bhandari appearing for news publication LiveLaw.

The Supreme Court also asked Solicitor General Tushar Mehta to prepare a chart that categorises the cases pending before it so that similar matters can be heard together. These categories are:

  • Cases challenging the IT Rules
  • Cases challenging the Cable TV amendment rules
  • Article 32 petitions seeking directions for evolving mechanisms that touch upon the IT Rules

The outcome of these hearings will decide how internet intermediaries, which include platforms and social media, will be governed in India.

A look at IT Rules proceedings in various High Courts

  • Delhi High Court: The Delhi High Court had refused an interim stay on the IT Rules on May 27, 2021. The petition was filed by the Foundation for Independent Journalism, the organisation that runs The Wire, its founding editor MK Venu and The News Minute’s editor Dhanya Rajendran alleging that the Rules give the government judicial-style powers over news publications, the petition argued. Earlier, the court had taken cognizance of advocate Sanjay Kumar Singh’s petition which said that the IT Rules were unconstitutional and need to be struck down. News platform, The Quint had also challenged the Rules in March at the Delhi High Court, arguing that they went beyond the purview of the IT Act.
  • Kerala High Court: Legal news portal LiveLaw obtained a stay from the Kerala High Court against any coercive action the government may take against the publisher under the IT Rules on March 10, 2021. The rules require news publishers to join a self-regulatory body and appoint a grievance officer, among other requirements.
  • Bombay High Court: The Bombay High Court, on August 14, 2021, stayed two provisions of the IT Rules – rules 9(1) and 9(3) – which say that digital news media and publishers should adhere to the ‘Code of Ethics’ laid out in the rules. The decisions came in regards to a petition filed by the online news portal The Leaflet. It had alleged that the Rules violate Article 14 (right to equality), Article 19(a) (freedom of speech and expression), and 19(1)(g) (freedom to practice any profession or to carry on any occupation, trade or business). While this case was initially not tagged for transfer, Bar and Bench reported in July that hearings of the matter were deferred because of the transfer petition.
  • Madras High Court: In June 2021, the Madras High Court stayed the application of the same two sub-rules as the Bombay High Court. It also issued a notice to the Centre while admitting two petitions: One by the Digital News Publishers Association and journalist Mukund Padmanabhan that challenged the constitutionality of the IT Rules. The other, filed by Carnatic singer TM Krishna and drafted by the Internet Freedom Foundation, contested the entire purview of Intermediary Guidelines 2021 (rules for both social media intermediaries and OTT platforms), which the petitioner argued was against fundamental rights.

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