IT Rules #1: SC Dismisses Petitions Seeking Regulations for Digital ContentTransfer of IT Rules Challenges
On July 20th 2022, Justices A.M. Khanwilkar, A.S. Oka and J.B. Pardiwala dismissed a group of petitions seeking regulations for OTT platforms and digital content. The Bench observed that these petitions were filed before the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules) were implemented. Since the IT Rules provide guidelines for digital content, the petitions were infructuous.
What Remains in the IT Rules Challenges?
Across various High Courts (HCs), digital media outlets, intermediaries, journalists and digital rights activists filed multiple petitions challenging the IT Rules since they were implemented in 2021. Hearings commenced simultaneously in these HCs. Some Courts delivered Interim Orders. Most notably, the Bombay HC ordered an interim stay on the grievance redressal mechanism in the Rules.
The Union government approached the Supreme Court (SC) with two prayers. First, the Union sought a transfer of all pending petitions across forums to the SC, so that contradictory Orders from different Courts may be avoided. Second, the Union sought an examination of the Bombay HC’s interim stay.
The Union’s transfer petition and challenge to the Bombay HC’s interim stay remain pending. On the transfer petition, the Court has two options. First, it may transfer all the pending cases to itself. Second, as Senior Advocate Arvind Datar—representing LiveLaw Pvt. Ltd., one of the parties challenging the IT Rules—suggested during the hearing, it may transfer all the pending cases to one High Court. The Court ordered a similar transfer in the recent Agnipath Scheme hearings, sending all challenges to the Scheme pending all over the country to the Delhi HC.
Neither party has objections to a transfer. However, Solicitor General Tushar Mehta, representing the Union government, emphasised in the hearing that the SC must first decide the appeal of the Bombay HC’s Interim Order. He argued that the grievance redressal mechanism aimed to balance the digital rights of web users with the Right to Free Speech and Expression of digital platforms. Mr. Mehta said all fundamental rights are subject to reasonable restrictions—the grievance redressal mechanism in the IT Rules were hence constitutional and the stay was illegal.
Rule 9 of the IT Rules places a Joint Secretary at the helm of the grievance redressal mechanism, allowing him to review the decision of the digital companies’ Self-Regulatory Body. Mr. Datar immediately quipped that as per the IT rules, the Self-Regulatory Body is headed by a retired SC Judge. Effectively, Rule 9 enables a minister to sit above a retired SC Judge. This, Mr. Datar argued, is why the Bombay HC stayed Rule 9 in its Interim Order. Dr. Singhvi, challenging the IT Rules, emphasised that any discussion about the interim stay would raise questions that overlap with the issues in the main dispute about the constitutionality of the IT Rules. He further emphasised that the Union may challenge the stay in the Bombay HC itself—there was no compelling reason for the SC to interfere.
The Court will contemplate whether and where to transfer the pending challenges and the fate of the interim stay of the IT Rules on July 27th, 2022.