Dissent in democracy is vital: bombay high court on partially staying IT rules

Criticism and acceptance of contra views is crucial in democracy, the Bombay High Court observed partially staying the operation of Rule 9(1) and (3) of the recently notified Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021). (AGIJ Promotion Of Nineteenonea Media Pvt. Ltd. & Anr. v. Union of India & Anr.)

Rule 9 subsections (1) and (3) which lays down adherence to the Code of Ethics which is annexed to the IT Rules, 2021 and for a three tier structure for addressing the grievances made in relation to publishers.

“The 2021 Rules are, thus, manifestly unreasonable and go beyond the IT Act, its aims and provisions,” the Court observed.

The Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni remarked that “Dissent in democracy is vital. It is, however, the checks and balances that make a democracy work.”

The Bench stated that “a democracy would thrive only if the people of India regulate their conduct in accordance with the preambular promise that they took while giving to themselves the Constitution. Liberty of thought is one of such promises. Exercising this liberty, expressions take shape.”

The Bench opined that if at this stage the effect on Rule 9 is not prohibited, even if at interim stage, it would generate a detrimental effect.

Noting that the constant fear of being hauled up for contravention of the Code of Ethics is a distinct possibility now, the Court opined that such a regime would run contrary to the well-recognised Constitutional principles.

“People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles.”

The Bench emphasised that a healthy democracy is one which is developed on “criticism and acceptance of contra views”.

For proper administration of the State, it is healthy to invite criticism of all those who are in public service for the nation to have a structured growth.

But with the IT Rules, the Court said, the writer would have to think twice before criticizing even if the same is done with good reasons to do without resorting to defamation and without inviting action under any other provision of law.

The Court observed that allowing the IT Rules to operate in its present form and substance would result in the writers/ publishers being at constant risk for being punished, if the Oversight Committee is not in favour of such criticism.

“It is, therefore, quite possible that the writer/publisher on contravention of the provisions of Rule 9 (1) of IT Rules, but without even transgressing the boundaries set by Article 19 (2) of the Constitution, may expose themselves to punishment under the 2021 Rules,” the Court observed. Bar and Bench