THE Delhi High Court's Justice Anup Jairam Bhambhani Monday recused himself from hearing petitions filed by digital media platforms- The Wire and The Quint- challenging the "Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021".
When the petitions were called out for hearing today, Justice Bhambhani told senior advocate Nitya Ramakrishnan that he was recusing himself from the case and that he would list the petitions on Monday before an appropriate bench.
Last week, the Centre sought a compliance report from the digital platforms with regard to the new IT Rules.
The petitioners said despite several communications from them requesting the government not to insist on compliance during the pendency of the writ petition and stay application, the Centre had gone ahead and set out a deadline to comply with the Rules latest by June 18 which was subsequently extended till June 26. The Centre had also warned of consequences for non-compliance.
In March this year, a division bench of Chief Justice DN Patel and Jasmeet Singh sought to know the response of the Centre and issued notice to it to file an affidavit.
The petitioners contended that the executive power to dictate content to digital news portals would violate Articles 14 (right to equality) and 19(1)(a) (freedom of speech and expression) of the Constitution.
"No reading of the rule-making power will allow for such a regulatory regime for digital news media entities without express statutory sanction, for that will run the danger of adversely affecting Fundamental Rights, especially the right to free speech under Article 19(1)(a). Given such grave consequences, rule-making power has to be read strictly", the plea stated.
It argued that the new IT Rules, 2021 had created a space for the state to enter and control news and views by way of deletion, modification or blocking, censure, compelled apology and more.
Clubbing online news portals with social media as distinct from the print news media is unfair and irrational classification, the plea said.
It stated that rules set up an adjudicatory mechanism parallel to courts of law, heavily impinging on freedom of speech and expression.
The plea submitted that the right to freely criticise the government was an essential and an inalienable part of the right to practice news journalism and a regulatory mechanism with the government at its apex would be a manifestly unreasonable interference with the said right, especially if subjective and vague criteria like 'good taste' and 'decency' could be invoked to lead to government interference.
It asserted that the new IT Rules were beyond the rule-making powers of the executive and thus the IT Rules 2021 were ultra vires the IT Act of 2000 under which the rules had been purportedly made.
The Centre issued the rules on February 25 to regulate the functioning of online media portals and publishers, over-the-top (OTT platforms), and social media intermediaries. These rules, inter-alia, require OTT platforms and news portals to formulate a robust three-tier grievance redressal mechanism.
Under these rules, all news portals and OTT platforms that operate in India will also be required to inform the Ministry of Information & Broadcasting of details of their respective entities within 30 days of the notification of the rules.
The rules now require news portals to comply with the norms of the Press Council of India (under the Press Council Act 1978), and the Programme Code under the Cable Television Networks Regulation) Act 1995.
Several leading digital rights activists and newspapers, including The Indian Express, The Telegraph, The Hindu, Nikhil Pahwa, founder of Medianama and the Internet Freedom Foundation have been vocal critics of the new regulatory laws.
They have alleged that the new guidelines breach the freedom of speech, and will be used to crackdown on dissent in the country. An editorial published in The Hindu titled, "wolf in watchdog's clothing," had described the new rules as predatory.