tl;dr
On March 22, 2024, the Supreme Court transferred to the Delhi High Court i) all petitions filed across the country challenging the constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules 2021”); and ii) transfer petitions filed by the Union of India seeking the transfer of the petitions challenging the constitutionality of the IT Rules 2021 to the Supreme Court. IFF is providing legal assistance to legal journalism platform LiveLaw and Carnatic classical vocalist T.M. Krishna who are Petitioners in challenges to the IT Rules 2021 before the Kerala High Court and the Madras High Court, respectively.
Why should you care?
The IT Rules 2021 hold significant implications for online privacy, and freedom of speech and expression, as we have previously discussed. They grant the government extensive authority over social media platforms, digital news outlets, and video streaming services, rendering them susceptible to censorship. It is only after persistent and sustained efforts that stays have been obtained against certain provisions of the IT Rules 2021. In this context, given the wide applicability of the IT Rules 2021, the hearings that are slated to commence before the Delhi High Court will be of immense importance for content in the digital realm.
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 curated content and digital news media, placing them under the purview of a committee comprising government officials.
The IT Rules have sparked considerable controversy. Following the government's notification of the IT Rules, 2021, at least 17 separate challenges to their constitutionality have been filed in various High Courts across India by individuals, associations, and organizations. Internet Freedom Foundation (IFF) 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, along with the issuance of a clarification that any actions taken under Rules 3 and 7 of the IT Rules would be subject to the final decision of the court.
The Union of India filed a transfer to the Supreme Court
The Union of India filed transfer petitions before the Supreme Court of India seeking to have all of these challenges pending before High Courts to be heard together by the Supreme Court. Other matters, inter alia, challenging the constitutionality of Rules framed under the Cable Television News Act and seeking the framing of guidelines for regulation of social media and news media platforms, etc. were also tagged with the challenges to the IT Rules, 2021.
These Petitions came up before the Supreme Court of India for hearing on May 9, 2022, where a bench comprising Justice A.M. Khanwilkar and Justice Abhay S. Oka indicated that all the tagged matters must be appropriately categorised and the matters challenging the IT Rules, 2021 will be heard together, but separately from the other unrelated matters.
Accordingly, the Bench was pleased to issue notice in respect of all the petitions. It also ordered a stay on all the proceedings currently pending before the High Courts, along with any petitions that may be filed. However, the protections secured by way of the interim orders against specific provisions of the IT Rules 2021 were not stayed and continued to be operational. The matter was then listed for May 19, 2022, on the issue of separation of matters. However, it ended up not being heard then.
What happened on March 22, 2024?
In a surprise listing, the matter was taken up on March 22, 2024, almost two years since the stay order of May 9, 2022, by a Bench headed by Justice Hrishikesh Roy. The Union of India, which had earlier filed the transfer petitions to get the petitions transferred to the Supreme Court, sought for the matters to be heard by the Delhi High Court. Consequently, the Supreme Court has directed for all the petitions to be transferred to the Delhi High Court and for all the court records present before High Courts across the country to be brought before the Delhi High Court within 4 weeks. We are incredibly grateful to LiveLaw and Mr. T.M. Krishna for allowing us to assist them in these crucial matters that affect press freedom and free speech. We are also grateful to IFF’s legal team, comprising Advocates Gautam Bhatia, Vrinda Bhandari, Abhinav Sekhri, Radhika Roy, and Gayatri Malhotra. We will keep you updated on what happens next!
Important Documents:
1. Previous blog post titled, “Supreme Court stays proceedings before the High Courts challenging IT Rules, 2021, interim orders to continue”. (link)
2. Order dated March 22, 2024. (link)
3. Our deep dive into how the IT Rules 2021 are unconstitutional and undemocratic, and how they will fundamentally change an Indian user’s experience on the internet. (link)