The Madras High Court on Thursday observed that an oversight mechanism of the government may rob the media of its independence, and “the fourth pillar, so to say, of democracy may not at all be there”.
Chief Justice Sanjeeb Banerjee and Justice P.D. Audikesavalu made the observation while passing interim orders on the writ petitions filed by Carnatic vocalist T.M. Krishna, Digital News Publishers Association and former Editor of The Hindu Mukund Padmanabhan challenging the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
The judges ordered that any action taken to block a website or a digital platform under Rule 3, read with Rule 7, of the IT Rules, 2021, would be subject to the result of the cases challenging the Rules. The judges also recorded the submission of Additional Solicitor-General R. Sankaranarayanan that an order passed by Bombay High Court on August 14, staying the operation of Rule 9 (1) and (3), would have a pan-India effect and not just within the territorial jurisdiction of that High Court.
The Bench pointed out that Rule 9 (3) provides not only self-regulation by publishers but also an oversight mechanism by the Centre. Stating that the petitioners were wary of the mechanism, the judges said: “ Prima facie there is 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 be there.”
The judges also said nothing more need be said on such aspects of the matter since Bombay High Court had already stayed the operation of the Rule 9 (3).
However, when counsel for the petitioners pointed out that the Association members had received notice despite the stay granted by Bombay High Court, the judges wrote, “It must be recorded in all fairness that learned Additional Solicitor-General, representing the Union, accepts that the order by the High Court of Judicature at Bombay would have pan-India effect.”
Since Bombay High Court had not dealt with Rules 3 and 7, the judges pointed out that Rule 7 makes intermediaries (any host of a website or a platform) liable for punishment if they fail to observe the Rules. Further, Rule 3 empowers the intermediaries to deny access to the platform on the ipse dixit of the intermediary or on the intermediary’s apprehension that it might be proceeded against by the Centre.
The Bench said, “There is substantial basis to the petitioners’ assertion that Article 19 (1)(a) (freedom of speech and expression) of the Constitution may be infringed in how the Rules may be coercively applied to intermediaries. ...There is a genuine apprehension, as the petitioners suggest, that a wink or a nod from appropriate quarters may result in the platform being inaccessible to a citizen.”
After the Additional Solicitor-General submitted that the Centre had filed an application before the Supreme Court to transfer to it all cases pending before various High Courts challenging the Rules and the application was likely to be taken up in early October, the judges adjourned the cases to the last week of October.
