The Bombay High Court on Tuesday asked the Union government to file a reply as to why an interim stay should not be given to the implementation of the Information Technology (IT) Rules, 2021, as demanded by two petitions.
A bench of Chief Justice Dipankar Datta and Justice GS Kulkarni sought the government’s reply by August 12.
The petitions filed by digital news portal ‘The Leaflet’ and journalist Nikhil Wagle claimed that the new regulations are “vague”, “draconian”, and bound to have a “chilling effect” on the freedom of press and right to free speech guaranteed by the Constitution.
Additional Solicitor General Anil Singh, the Union government’s lawyer, urged the court not to grant a stay without a final hearing.
Senior counsel Darius Khambata, who appeared for The Leaflet, had argued earlier that the new rules were a brazen attempt to regulate online content. They go beyond the parameters set by the Information Technology Act and limits set under Article 19 of the Constitution, he said.
On Tuesday, the high court asked if it could grant an interim stay to the rules with the petitioners agreeing, for now, not to publish anything in violation of the restrictions under Article 19 (which defines the freedom of speech and its limits) and the Union government promising not to take coercive action against them under the new rules until the court gives its final decision.
“Suppose we accept your (petitioners’) argument and grant a stay. So the rules will remain in suspension. If you fail in the writ (petition) and rules are violated in the interim, you cannot use our orders to seek relief if you fail in the writ…And the Union does not take any coercive action as per the new rules?” the high court said.
Advocate Khambata said the petitioners always adhere to the restrictions under Article 19 and oppose only the new rules which go beyond Article 19.
“As long as Article 19 (2) is the only limit, there is no difficulty,” he added.
But the additional solicitor general opposed the court’s proposal.
“Instead of granting an interim stay, the final matter can be heard,” Mr Singh said.
The court pointed out that similar petitions opposing the new rules have been filed in high courts across the country, but the Union government was yet to file its replies.
If a stay was not granted, the petitioners will be under “constant fear” of adverse action whenever they publish anything online, the judges said.
“File a short affidavit on why interim relief should not be granted,” the high court told the Union government, adjourning the hearing to August 13.
Arguing that the new rules were vague, advocate Khambata had said on Monday that among other things, they prohibit media organizations from carrying out sting operations without proof and publishing defamatory content against a public personality.
But the rules do not define “adequate proof” or “defamatory content”, he said.
“These rules are seeking to effectively monitor and censor speech on the internet by giving powers to a ministerial committee,” he alleged.
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