[IT Rules 2021] Action under Rules 3, 7 will be subject to outcome of challenge: Madras High Court

The Madras High Court on Thursday ordered that any action taken under Rules 3 and 7 of the recently notified Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021) would be subject to the result of the petitions challenging the IT Rules before the Court..As regards Rule 9 (1) and (3), the Court has confined to taking on record the stance of both the petitioners and the Central government that the Bombay High Court's August 14 order staying the operation of Rule 9 (1) and (3) of the IT Rules would have a pan-India affect..In the final version of its order, the Court has confined to stating:."Nothing more need be said on such aspect of the matter since the High Court of Judicature at Bombay, by an order dated August 14, 2021, has stayed the operation of sub-rules (1) and (3) of Rule 9 of the said Rules of 2021.".During the course of dictating the order in open Court, the Bench had initially said, "By way of abundant caution, sub Rules (1) and (3) of Rule 9 of the said Rules of 2021 will remain stayed.".This was in view of Senior Advocate PS Raman's submission that despite a stay issued by the Bombay High Court in the matter, his clients (petitoners) were issued notices alleging they were in violation of the Rules. .However, the final version of the order uploaded by the High does not reflect this line. .Sub-rules (1) and (3) of Rule 9 lay down adherence to the Code of Ethics which is annexed to the IT Rules, 2021 and provide for a three tier structure for addressing the grievances made in relation to publishers.."For understandable reasons, the petitioners are wary of the oversight mechanism of the Central Government indicated as the final tier of the process of regulation. Prima facie, there is substance to petitioner's grievance that the oversight mechanism to control the media by government may rob the media of its independence, and the fourth pillar, so to say, of democracy may not at all be there," the Court has observed in its order..The decision to make the operation of Rules 3 and 7 conditional on the outcome of the challenge came after hearing additional submissions by Senior Advocate Rajashekhar Rao and the response by Additional Solicitor General R Sankaranarayanan.."... there is a substantial basis to the petitioners' assertion that there may be a violation of Article 19 (1)(a) (of the Constitution) in how the Rules may be coercively applied to intermediaries ... if there is any action taken in terms of Rule 3 of the said Rules read with Rule 7 thereof during the interregnum, it will abide by the result of the petitions and further orders herein", the Court said. .Rule 3 deals with "due diligence by an intermediary." .Rule 7 provides that if an intermediary fails to abide by the IT Rules, it would not be granted the protective exemption under Section 79 of the Information Technology Act, 2000. In such a scenario, the intermediary "shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code", Rule 7 states. .The case has been posted for further hearing on October 27, after the Court was informed that the Supreme Court is due to take up transfer petitions in the first week of October. .The order was passed by a Bench of Chief Justice Sanjib Banerjee and Justice PD Audikesavalu in two petitions challenging the validity of IT Rules 2021..One petition is a public interest litigation (PIL) petition moved by Carnatic musician TM Krishna, The second is a writ petition moved by the Digital News Publishers Association, comprising thirteen media outlets, and journalist Mukund Padmanabhan..NOTE: This article has been updated to reflect the final version of the order uploaded on the Madras High Court website and certain changes noticed therein. An earlier version of the article was solely based on the Court's dictation in open Court.. [Read Order].[Read live account of the Madras High Court hearing]