A division bench of Chief Justice Sanjib Banerjee and Justice P.D. Audikesavalu recorded the submission made by the Additional Solicitor General (ASG) to this effect on Thursday after the petitioners informed the Madras High Court that despite the Bombay High Court order, notices had been issued to them subsequently requiring them to adhere to the Rule 9(1) and 9(3) of the IT Rules, 2021. These Rules require publishers to observe and adhere to the Code of Ethics even as a three-tier grievance redressal mechanism is to be constituted for complainants.
The bench also observed that there was substance in the petitioners’ grievance that an oversight mechanism to control the media by the government may rob the media of its independence and the fourth pillar, so to say, of democracy may not at all survive.
The Madras High Court was hearing petitions filed by Carnatic musician T.M. Krishna, the Digital News Publishers Association, comprising thirteen media outlets, and journalist Mukund Padmanabhan.
Last month, a bench of Chief Justice Dipankar Datta and Justice G.S. Kulkarni at the Bombay High Court found these rules, prima facie, violative of the freedom of speech and expression and beyond the rule-making power of the Executive under the Information Technology Act, 2000.
The Bombay High Court’s division bench said that the indeterminate and wide terms of the Rules brought about a chilling effect on the right of freedom of speech and expression of writers/editors/publishers because they could be hauled up for anything if such committee so wished.
The High Court wondered that when there already were different legislations governing the field of the code of ethics, how could they then be brought within the purview of the new IT Rules, 2021 and substantive action taken for their violation under these rules. It termed the 2021 Rules manifestly unreasonable and beyond the IT Act, 2000
Rule 9(1) of the new IT Rules set a Code of Ethics for online news and current affairs publishers that consists of i) Norms of Journalistic Conduct of the Press Council of India under the Press Council Act, 1978; (ii) Programme Code under Section 5 of the Cable Television Networks Regulation) Act, 1995; and (iii) Content which is prohibited under any law for the time being in force shall not be published or transmitted.
Rule 9(3) provides for a three-tier structure as under— (a) Level I – Self-regulation by the publishers; (b) Level II Self-regulation by the self-regulating bodies of the publishers; (c) Level III – Oversight mechanism by the Central Government, to ensure the adherence to Code of Ethics.
Various media houses attacked the new rules as being against press freedom and challenged them in various high courts. The Central Government has already moved transfer petitions before the top court asking that all the petitions on the new rules be transferred to the Supreme Court. It has also filed an appeal against the interim order passed by the Bombay High Court staying the 2021 rules in parts.