IT Rules 2021 vague, draconian, will have a chilling effect on free speech: Petitioner tells Bombay High Court [LIVE UPDATES]

The Bombay High Court is hearing petitions challenging the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021)..The hearing is progressing before Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni..The petitioners before the Court include digital news portal, the Leaflet and Mumbai-based journalist, Nikhil Wagle..Live updates feature here. .Senior Advocate Darius Khambata for the news portal submits: I am for publisher, Leaflet.in. The grounds are that the Rules prima facie are against the IT Act..Khambata: The Act does not regilate content, but the Rules brazenly regulate content..Khambata: The rules go far beyond permissible restrictions under Article 19(2)..Khambata reads the preamble of IT Act..Khambata: The Central government may by notification of the gazette, make provisions for Rules.. The procedure and safeguard for blocking access.. the Rukes are avowedly made under this power..Khambata: For access and bloackage there are separate rules made and those take care of the requirements. Section 79 is for an intermediary, enjoy an immunity provided certain conditions are met..Khambata: These do not apply in the present case, as I am not intermediary..Khambata: My case is not for intermediaries. I am more concerned with part III. Rule 9, and Rule 9(3)...Khambata: These Rules are seeking to effectively monitor and censor speech in the internet by a different ministry, the most draconian law on free speech of recent times. They have nothing to do with regulating or recognizing the e-transactions on internet..Khambata: The entire part 3 is prima facie ultra vires.. Section 69 covers what is required..Khambata: What the norms of journalistic conduct are.. please see...Khambata: These are norms by Press Council. They are mainly objective. They are broad and wide these are..Khambata: Investigative jounrnalism, norms and parameters… as a citizen, every one is laudatory. All these gorunds can never be grounds for free speech .. If you must say, they should be accurate, of course they have to be.. but what do they mean by that?.Khambata: Accurate and fair is what is defined...Khambata: But who is to deicee what is fair or crass… Headlines are not to be provocative.. It does not mean that publishers editors authors must be controlled in this manner...Khambata: Investigative journalism is to be controlled.. we do not want sting operations...Court: When was this first published?.Khambata: This is 1978, but we are reading 2010. This is all very good, but it cannot be used to put restrictions..Khambata: Look at the chilling effect. A journalist cannot publish anything which he cannot prove 100% . No one will write….Khambata: These rules are so vague, so draconian that they have chilling effect on free speech, so much so that they have to be stayed immediately!.ASG Anil Singh for Centre submits that the Madras High Court issued notice, Division Bench of Kerala High Court has issued notice, single bench of Kerala High Court has granted relief without passing reasoned order..Khambata: There is nothing in the IT Act that regulates content. The only provision which deals with content is Sec 69 and these rules go far beyond that. The 2021 rules are not in order to carry out provisions of IT Act.Doctrine of ultra vires has no power to make part III..Khambata: I will now refer to Shreya Singhal (Para 24).Court: Could you provide the judgment which provides for stay on legislation at interim stage? .Khambata cites a judgment: The stonger test does not apply to the rules under statute. But these rules are ultra vires to the Act. These Rules do not come under 19(2)..Khambata: We will get that judgment of Bhavesh Parish… to the best of my memory it is 2001 5 SCC 471..Khambata: Even primary legislation can be stayed..Khambata: it could be stay or stay on implementation of 14(5).. whatever depending on, on what is the Court satisfied..Advocate Abhay Nevagi appears for Nikhil Wagle, Mumbai Journalist..Nevagi: My challenge is primarily to all parts of the rules..Nevagi: There are millions of mobile users and these rules amounts to censorship. I would like to clarify that I am not advocating for WhatsApp..Nevagi: WhatsApp is like post office. The sender sends the letter and the post office sends to the receiver. The post does not open the letter. WhatsApp has end to end decryption, which is similar to post..Nevagi: WhatsApp has encryption, telegram, signal say they are a step ahead of WhatsApp. What government says is you come out with an AI mechanism through which we can find out pornography and child pornography case.. No other country has such a mechanism proposed...Nevagi: Hence this move is opposed at UN also. Part II Rules, especially about controlling social media.. .Nevagi reads from the petition, the excerpts of the rules..Nevagi: Companies like WhatsApp, Signal, Telegram, if they start reading data of a person.. Data is dangerous. If they start picking up data, then they may just profile people based on their political inclinations, etc.. They will sell that data in the market...Nevagi: That is how they conduct elections worldwide.. Based on profiling. Under Rules, you cannot bring something that is not there in the Act. It is not there in the parent act, then under some other mechanism, you cannot bring it..Nevagi: So milords then, you are encouraging to create my profiles and usage of tools, virtually we have followed.. my mobile will anyways disclose my location, my credit card details, but if you bring this additional details, then they will profile my inclination..Nevagi: Puttuswamy is clear on this aspect, on mass surveillance. What this Rules are trying to do is something which no government in the world can control. Those search engines, like Google Yahoo ensure that right to privacy is protected..Nevagi: When I am searching something, IP address generated is only for that moment, when I go through different networks, then my IP address keeps changing. That is how dark web works..Nevagi: Child prostitution is available on the net. Some of the services, will drive even a seasoned psychiatrist to madness!.Nevagi: In some cases, if someone sends me a message from outside India, I open it, then I become the originator. The seriousness and gravity of the Rules have to be seen properly...Nevagi reads Shreya Singhal case paragraph 122.Nevagi: There is a wide power under IT Act that gives wide powers. Draft Rules were published in December 2018. Whatever was notified in parts was never discussed by the Rajya Sabha committee..Nevagi: My theory is fait accompli. So finally when petitions came to be filed, the rules were published, and then it was said, sorry it is notified, now it will be applied..Nevagi: On the transfer petition before Supreme Court, the Centre did not try to mention the matter for early hearing. There are no reply affidavits filed. These rules go beyond the parent act..Court: So you are saying it supplants the law, not supplements? .Nevagi: Yes, goes beyond...Nevagi was reading the changes brought about by the new rules (which are part of the petition). .Nevagi: Page 82, pertains to non-observance of rules. I am sorry, I forgot to point this out..Nevagi: This is the first time I am coming across a classic case of delegated legislation, where the delegated rules are beyond powers granted by parent legislation.Court: You say there are international norms involved.. what are these norms? .Nevagi: I will file those separately if required. It is annexed to my petition..Nevagi: I have taken ground about international norms - para T in my petition..Nevagi: Appropriate reliefs may kindly be considered. .Khambata: May I cite one more decision for interim stay - Ajay Marathe’s case..Khambata: Also pertaining to the query of Cable TV network act, there is a section 20 where the Central government can prohibit.. but that is in compliance with the Article 19 of the Constitution..Petitioners have concluded their submissions. ASG Anil Singh for the Ministry of Electronics and Information Technology begins his submissions..ASG: I will make two requests in the beginning. One is as far as interim prayers are concerned, all other High court, except for one Kerala court, (which gave order) of no coercive action (without giving reason), most High Courts have issued notice, have given time to file reply. It was for stay on rules..Singh: The order of the Madras High Court, there are two orders. I will place on record. .Court: We passed an order on July 8 for deferring hearing. It has been a month, and you did not manage to get an order there..ASG: The matters are showing listing. As on today it is not like any action is.. . - Stops mid way as the Court is reading something -.Court: What happened on July 14?.ASG: I was told it got adjourned. But I will confirm..Court: Are you part of the association which has filed the petition in Madras High court? Our way of thinking would be otherwise if you are part of the association.. .Khambata: I will take instructions... After a moment, Khambata informs: We are not part of the association..ASG: The Transfer Petition… It is not like we have not taken steps.. I am told it was mentioned in the last week too. .Court: Shreya Singhal was PIL? .Khambata: Yes..Court: You are saying it is likely to reach tomorrow? .ASG: In the first order, the Supreme Court.. .Court: The causeless should be out by now. It is a weekly list. .ASG: It is expected on supplementary board, I have been told..Khambata: It has been over a month, the Supreme Court is not inclined to hear it urgently...Khambata: Either way, the Supreme Court will stay the order, if need be.. .ASG: Please let me make my submissions please. .Court: This Transfer petition, after July 14, you could have easily moved the petition.. We are keeping this tomorrow at 2.30, unless there is a contra order by Supreme Court.Order: ASG submits that the Supreme Court will hear the transfer petition tomorrow. He urges that this court wait for the decision of the Supreme Court. We propose to hear the arguments of ASG opposing the submissions of the petitioner provided the Supreme Court does not preclude this court from passing order..Court to continue hearing matter at 2.30 pm tomorrow

IT Rules 2021 vague, draconian, will have a chilling effect on free speech: Petitioner tells Bombay High Court [LIVE UPDATES]

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