SUMMARY
The Madras High Court observes that Bombay High Court's order in August, staying the operation of sub-rules (1) and (3) of Rule 9 of the new IT rules 2021, ought to have a pan-India effect
However, judicial propriety demands that the High Court, before passing any further orders, should wait for the outcome of Apex Court final orders, says cyber law expert Virag Gupta
With the Supreme Court scheduled to take up transfer petitions next month, the Madras High Court has postponed further hearing of the case to October 27
Last month, the Bombay High Court had ordered a stay on two clauses of Information Technology (IT) Guidelines for intermediaries and Digital Media Ethics Code Rules, 2021 which required digital media, news media and online publishers to adhere to the ‘Code of Ethics’ which are part of the new IT rules.
Now, the Madras High Court has observed that the Bombay High Court’s order, staying the operation of sub-rules (1) and (3) of Rule 9 of the new IT rules 2021, ought to have a pan-India effect, according to a report.
Further, the Madras High Court also noted in its interim order that any action taken stating Rules 3 and 7 of the IT Rules 2021 would be dependent on the consequences of the challenge to the constitutional validity of the rules.
Among the two petitions heard, one was from famous Carnatic musician TM Krishna, and the other was from the Digital News Publishers Association (DNPA), representing 13 media outlets, including journalist Mukund Padmanabhan.
With the Supreme Court scheduled to take up transfer petitions next month, the Madras High Court has postponed further hearing of the case to October 27.
New Delhi-based advocate and cyber law expert Gupta told Inc42, “The government has included Digital Media Ethics Code with revised Intermediary Rules. It has created confusion, complications and various legal disputes.”
He added that the Madras High Court stay order raises three important legal points. “First, despite the Bombay High Court stay order of August 2021, authorities preferred to issue notices, and such action may amount to Contempt of Court. Secondly, in pending court matters, the action of parties is always subject to the final outcome of the Court order. Bombay High Court has not passed stay orders wrt rule 3 r/w rule 7, but Madras High Court observations on this count are quite surprising,” Gupta elaborated.
Lastly, the central government has already moved an application for transfer of all such matters from various High Courts, in which the Supreme Court refused to pass interim directions. “However, judicial propriety demands that the High Court, before passing any further orders, should wait for the outcome of Apex Court final orders,” Gupta added.
Rule 9 of the IT Act 2021 comprises three clauses under it. While a stay has been ordered on clauses 1 and 3, clause 2 remains operational, which takes care of the publisher’s liability for consequential action for breaching any other law in force. The new IT Rules 2021 came into effect on May 26.
The bench comprising Chief Justice Sanjib Banerjee and Justice PD Audi heard two petitions yesterday (September 16) which argued that the IT rules 2021 are ultra vires (beyond one’s legal power or authority) inter alia (among other things) to Article 14 (equality before law) and Article 19 (right to freedom of speech) of the constitution, Live Law reported.
