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tl;dr
Delhi High Court has begun hearing the consolidated petitions challenging the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021”), which were transferred from the Supreme Court following the Transfer Petitions filed by the Union of India. On August 14, 2024, the Delhi High Court directed that the cases be segregated issue-wise and appointed Advocates Mr. Shashank Mishra and Mr. Kirtiman Singh as nodal counsels for the petitioners and respondents, respectively. Parties were also directed to conclude pleadings within 4 weeks and file written submissions. In the October 14, 2024 hearing, the Bench decided with the consensus of the counsels in all the petitions, that the IT Rules, 2021, hearing will be divided into 2 parts – firstly challenges to Part III of the IT Rules, 2021, will be argued, and subsequently challenges to Part II of the IT Rules, 2021. The IT Rules, 2021, which impact online privacy and freedom of expression by granting extensive government control over digital platforms, face constitutional challenges. IFF is assisting LiveLaw and Carnatic classical vocalist T.M. Krishna in these cases.
Important documents
- Order dated October 14, 2024. [Link]
- Order dated August 14, 2024. [Link]
- Order dated March 22, 2024. [Link]
- Order dated May 9, 2022. [Link]
- IFF’s deep dive into how the IT Rules 2021. [Link]
Why should you care?
The IT Rules, 2021, have far-reaching consequences for online privacy and freedom of speech and expression, as we have discussed before here. These rules give the government substantial control over social media platforms, digital news outlets, and video streaming services, making them vulnerable to unbridled censorship.
Background
On February 25, 2021, the Ministry of Electronics and Information Technology and the Ministry of Information and Broadcasting introduced the IT Rules, 2021. These regulations expand governmental authority over social media intermediaries, including the content users share on these platforms. Additionally, the IT Rules, 2021, impose oversight on online content and digital news media, placing them under the purview of a committee comprising government officials.
Following the government’s notification of the IT Rules, 2021, at least 17 separate challenges to their constitutionality were filed in various High Courts across India by individuals, associations, and organizations. Internet Freedom Foundation has provided legal aid in two such petitions. One petition, filed by LiveLaw before the Kerala High Court, resulted in the Union of India being prohibited from taking any coercive measures against LiveLaw under Part III of the IT Rules, 2021. The other petition, filed by Mr. T.M. Krishna before the Madras High Court, led to a stay on the implementation of Rules 9(1) and 9(3) of the IT Rules, 2021, along with the issuance of a clarification that any actions taken under Rules 3 and 7 of the IT Rules, 2021, would be subject to the final decision of the court.
Transfer Petitions before the Supreme Court of India
The Union of India filed Transfer Petitions in the Supreme Court to consolidate all challenges to the IT Rules, 2021, pending in various High Courts. The petitions were grouped with other cases, including those challenging the constitutionality of Cable Television Networks (Amendment) Rules, 2021, seeking regulation of social and news media platforms.
On May 9, 2022, a Supreme Court Bench led by Justice A.M. Khanwilkar and Justice Abhay S. Oka indicated that while all related cases would be categorised, the IT Rules, 2021 challenges would be heard separately. The Bench issued notices for all petitions and stayed proceedings in the High Courts, except for interim protections against specific provisions of the IT Rules, 2021, which remained in effect. The next hearing, scheduled for May 19, 2022, was postponed.
Subsequently, the matter was brought before a Bench headed by Justice Hrishikesh Roy on March 22, 2024, nearly two years after the issuance of the stay order on May 9, 2022. The Union of India, which had previously sought the transfer of the petitions to the Supreme Court, submitted a request for the matters to be adjudicated by the Delhi High Court. Consequently, the Supreme Court directed that all petitions be transferred to the Delhi High Court and that all relevant court records from High Courts across the country be submitted to the Delhi High Court within four weeks.
What has happened in the Delhi High Court so far?
The batch of challenges to the IT Rules, 2021, has been listed before a Division Bench comprising Chief Justice Manmohan and Justice Tushar Rao Gedela of the Delhi High Court. During the first hearing on August 14, 2024, the Hon’ble Court directed the segregation of the cases by issue and appointed Mr. Shashank Mishra and Mr. Kirtiman Singh as nodal counsels for coordination. Parties were ordered to complete pleadings within four weeks and file written submissions. The Cable Television Rules matters were instructed to be listed as separate matters.
On October 14, 2024, the Bench encouraged the counsels to reach a consensus on segregating the challenges to the IT Rules, 2021. It was agreed that the proceedings will be divided into two – arguments against Part II (Due Diligence by Intermediaries and Grievance Redressal Mechanism) and arguments against Part III (Code Of Ethics and Procedure and Safeguards in Relation to Digital Media) of the IT Rules, 2021. The Petitioners will commence their arguments with Part III, starting on November 11, 2024. Senior Advocate Darius Khambata will be commencing the arguments, followed by others. Part II of the Rules will be taken up subsequently. We are incredibly grateful to represent LiveLaw and Mr. T.M. Krishna through IFF’s legal team, composed of Advocates Vrinda Bhandari, Gautam Bhatia, Abhinav Sekhri, and Gayatri Malhotra, along with Advocates Anandita Rana, and Pragya Barsaiyan.
We will keep you updated on what happens next!