Freedom of the Indian Press: From the Recent to the Rudimentary, IT Rules & the Code of Ethics

Posted on October 12, 2021

Authored by Melita Tessa and Vallari Dronamraju

Image Source: National School of Journalism

Introduction

Recently, the Bombay High Court issued an interim stay on sub-rules (1) and (3) of Rule 9 of the recently issued Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Rules”) vide its order dated 14 August 2021.[1] In accordance with this, the Madras High Court on 16th September 2021 issued an interim orderthat any action under Rules 3 and 7 would be subject to the outcome of the challenge of constitutional validity. The Rules, issued this year, bring under their ambit the regulation of intermediaries, online news content, and Over-The-Top (“OTT”) platforms. As the Rules seek to regulate the dissemination of content online, many of the provisions in the Rules have grave implications on the freedom of speech and expression, particularly on the freedom of the press. (Also see our article discussing the impact of the Rules on online speech and liberties)

The Rules mandate that the publishers of digital and print news content must adhere to the provisions of the “Code of Ethics and Procedure and Safeguards in Relation to Digital Media” (“Code of Ethics”), under Part III. Such regulatory hurdles and content review requirements may impact free and fair journalism. On the digital content front, publishers have faced the ire of the government through the regulation of OTT platforms and regulation of social media intermediaries.

At present, India holds a rank of 142 among 180 countries in the Press Freedom Index, indicating that India needs concrete regulations that will balance the interests of the freedom of digital and print new content, along with the adherence to the Constitution of India. Hence, the orders are a welcome change to the rights of publishers of print and digital content, as they provide temporary relief to the publishers in respect of the controversial Code of Ethics. This is further explored in this article.

The Bombay High Court Order (“Order 1”)

In this case filed by ‘The Leaflet’, the petitioners inter alia challenged Rules 9, 14 and 16, on the ground that they were arbitrary and ultra vires the Information Technology Act, 2000 (“IT Act”)– the legislation under which the extant Rules have been legislated – and Articles 14, 19 (1)(a) and 19(1)(g) of the Constitution of India.

Unconstitutionality of Rule 9

Part III of the 2021 Rules provides that the Code of Ethics shall apply to two categories of persons or entities that include, (a) publishers of news and current affairs and (b) publishers of online curated content and will be administered by the of Broadcasting (“MIB”).

Under the Code of Ethics, the Norms of Journalistic Conduct of the Press Council of India Act, 1978 (“PCI Act”) must be adhered to by print news publishers, and the programme code under Section 5 of the Cable Television Networks Regulation) Act, 1995 (“CTVN Act”) must be adhered to by digital media publishers. The former are the standards of conduct that each journalist/editor/publisher must maintain in the discharge of his/her duties as a member of the Press. The latter is intended to provide for a framework for regulation of programmes under cable service. That said, the court noted that the sanctions bolstering the Norms of Journalistic Conduct were “moral and not statutory”. Additionally, the PCI Act contemplates only mild reprimands for violations of the Norms of Journalistic Conduct, unlike in the Rules where non-compliance is subject to action “more rigorous” than under the PCI Act.

Thus, the statutory regimes i.e., the PCI Act and the CTVN Act occupy different statutory fields, and it will be an arduous task to bring them both under the purview of the Rules. Therefore, the Court ruled prima facie, that the Code of Ethics suffered from two illegalities, i.e., firstly, imposition of an obligation on the publishers of news, current affairs content, and publishers of online curated content under a statutory regime completely alien to the IT Act, by applying the Norms of Journalistic Conduct under the PCI Act and the Programme Code under the CTVN Act. Secondly, Section 87, that authorises the Central Government to make rules under the IT Act, does not confer any power on the Central Government to frame rules inconsistent with its provisions. The IT Act itself does not seek to censor content on the internet, except to the extent authorised under Section 69A – that is, on grounds of :

“[T]he interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence”.[2]

Similarly, the Programme Code under the Cable Television Network Rules were relevant, in the words of the court, to “programme[s] carried in the cable service”, but couldn’t apply to writers and publishers of content online, per se. Noting the absurdity of the outcome if the the Programme Code were to apply to online content (the editor would “necessarily be precluded from criticizing an individual in respect of his public life”), the court examines the importance of dissent and how Rule 9 would penalize writers and editors despite the restrictions of Article 19(2) not having been satisfied. Hence, it ruled that Rule 9 would be “manifestly unreasonable” and go beyond the IT Act.

In addition to the above observations, the Court opined that these rules have been framed as a substantive legislation, transgressing the rule-making power available under Section 87 [KR2] of the IT Act. A subordinate legislation is intended to sub-serve the IT Act and cannot create fresh rights, obligations, and liabilities that are not traceable in the IT Act. They may be quashed if found to be unconstitutional.[3] The Bombay High Court thus issued an interim order directing a stay on the operation of Rule 9, as it was ultra vires the provisions of the IT Act by observing:

“Should at least a part of Rule 9 of the 2021 Rules be not interdicted even at the interim stage, it would generate a pernicious effect. As it is, the constant fear of being hauled up for contravention of the Code of Ethics is a distinct possibility now. People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression.” (Para 30 of Order 1[TV(J3] )

An important facet of the freedom of speech and expression is the freedom of the press which primarily consists of access to all sources of information, freedom of publication and circulation.[4] Its importance has been recognized by the Indian Judiciary in Romesh Thapar v. State of Madras,[5] wherein the Court observed that press freedom lies at the centre of all political discussion, and is thus essential for the proper functioning of the government. Furthermore, in the Shreya Singhal,[6] the Supreme Court held that discussion and advocacy of a cause, however unpopular, is within the scope of the right to freedom of speech and expression. This forms an important facet of press freedom. The Order 1 has furthered the jurisprudence developed by Indian Courts with respect to the freedom of the Indian press.

Additionally, Rule 9 provides that to ensure observance and adherence to the Code of Ethics by publishers, there will be a three-tier grievance redressal structure in place, i.e., Level 1 (Self-regulation by the publishers), Level 2 (Self-Regulation by the self-regulating bodies of the publishers), Level 3 (Oversight mechanism by the Central Government). An example of why the Code of Ethics cannot be made legally enforceable can be seen in Section 3(v) of the Code, which states that “the Press shall not rely on objectionable past behaviour of a citizen to provide the background for adverse comments with reference to fresh action of that person.” This can severely limit speculation, opinion, discussion, and public discourse, thereby raising concerns regarding the validity of the Code of Ethics as observed [TV(J4] in Order 1.

Rule 7, 14 and Rule 16

Rule 7 in Part II (due diligence) of the Rules, provides for the consequences in case of “Non-observance of Rules” – , wherein if an intermediary fails to observe the Rules, the provisions of Section 79 of the IT Act shall not be applicable to such intermediary and the intermediary shall be liable for punishment under any law. The Court did not order a stay on Rule 7 of the 2021 Rules, due to the absence of clear satisfaction that the petitioner was an ‘intermediary’ within Section 2(w) of the IT Act[TV(J5] . It stated that, for statutory provisions to be challenged on constitutional grounds, it is essential that the material facts are clarified and ascertained.

Further, Rule 14 states that the Ministry of Electronics and Information Technology (“Meity”) must constitute an Inter-Departmental Committee consisting of representatives from the government to oversee the implementation of the Code of Ethics. The Court was of the opinion that there was no urgency to enforce a stay on Rule 14 as the inter-departmental committee was yet to be constituted. The petitioners were granted liberty to urge for this relief as and when the inter-departmental committee was constituted.

Under Rule 16, if the Secretary of the Ministry of Information and Broadcasting deems it fit to block public access of any information through any computer resource in cases of, “emergency nature, for which no delay is acceptable” where it is “necessary or expedient and justifiable” to issue blocking directions, an interim measure may be issued to the persons responsible without giving an opportunity of being heard. The blocking of information under this rule, is on the grounds traceable in Section 69A of the IT Act which falls in line with the restrictions as imposed by Article 19(2) of the Constitution. The Court also noted that this rule was in pari materia with Rule 9 of the Blocking Rules of 2009, under which no grievance was faced by the petitioners. The prayer with respect to Rule 16 was thus dismissed.

The Madras High Court Order[7] (“Order 2”)

In the instant case filed by musician TM Krishna, Digital News Publishers Association, and journalist Mukund Padmanabhan, the petitioners challenged the Rules on similar grounds as that of Order 1, i.e., that they are ultra vires Articles 14 and 19 of the Constitution and the constitutional validity of Rules 3, 7 and 9.

Firstly, in this case, the Madras High Court, upon observing that the Bombay High Court had stayed sub-section (1) and (3) of Rule 9 of the Rules, noted that there was nothing to be added in this regard and declared that the Bombay High Court’s ruling on the said Rule should be applied pan-India.

Secondly, the petitioners in this case also challenged sub-clause (x) of Rule 3(1)(b) that made the provisions for grievance redressal stringent, and Rule 7 that made an intermediary liable for punishment if it failed to observe the Rules. Similar to Order 1, the petitioners also challenged Rule 9 which enforced the observance and adherence to the Code of Ethics and a self-regulated mechanism for publishers that would take away the independence of the media.

In respect of the argument against Rule 3(1)(b)(x) read with Rule 7, the Court cited the Shreya Singhal judgement (paras 11-12), and observed how the intermediary, due to fear of being penalized for not complying with the Rules, may overzealously deny access to its platforms for any individual. It further noted:

“Though the petitions have not been brought by hosts of website platforms, social media platforms on the website are used by one and sundry and there is a genuine apprehension, as the petitioners' suggest, that a wink or a nod from appropriate quarters may result in the platform being inaccessible to a citizen.” (Paragraph 13 of Order 2)

Further, the Court opined that the exemption of liability under Section 79 of the IT Act would not apply for an intermediary if it is found to violate any guideline that the Government prescribed. It also observed that there was significant basis for the petitioners to allege the violation of Article 19(1)(a) of the Constitution owing to the coercive nature of the Rules. The Court thus issued an interim order in this regard with further hearing listed for 27th October 2021.

Conclusion

The Indian judiciary has consistently been a strong advocate of the constitutional right of the freedom of the press. It has acknowledged that it is the goal of the Indian Constitution to promote purposeful journalism.

The said goal can be seen in Part IV of the Constitution in Article 51A(h) under Fundamental Duties. This part proposes that all Indian citizens, including ministers, elected officials and bureaucrats have the fundamental duty to develop scientific temper, humanism and the spirit of inquiry. The above-mentioned qualities cannot be developed where there is little to no press freedom in the country.

Dr. B.R. Ambedkar, through his submission to the Constituent Assembly declared that no law shall violate the freedom of press freedom. He added that the only lawful limitations would be public order and morality. Though there is much to be done in terms of improving press freedom in India, the Indian courts are certainly leading us on this rewarding journey.

In conclusion, the Bombay High Court and the Madras High Court, through the orders discussed in this case, have further strengthened the jurisprudence on press freedom and brought relief to the Indian Press and Media organizations as well as the general public. While the fate of the Rules remains undecided, these Orders provide some temporary relief in respect of some parts of the Rules which may have a negative effect on press and media freedom. This may pave the way for a healthy press and media industry in India.

*Melita is a Researcher at IntellecTech Law and a law student at CHRIST (Deemed to be University), with a keen interest in IP and TMT law. She published her novel ‘Battle of the Spheres’ when she was 15 and is one of India’s youngest TEDx Speakers.

*Vallari is an Editor at IntellecTech Law and a final year law student at the National University of Advanced Legal Studies, Kochi with a keen interest in competition law, technology law and corporate law.

[1] Agij Promotion of Nineteenonea Media Pvt. Ltd. v. Union of India, WPL – 14172 of 2021 & Nikhil Mangesh Wagle v. Union of India, PILl – 14204 of 2021. [2] The IT Act, 2000, s. 69A(1). [3] Health for Millions v. Union of India, Civil Appeal No. 5912-5913/2013. [4] Union Of India v. Association For Democratic Reforms, Civil Appeal No. 7178 Of 2001 With (Writ Petition (C) No. 294 Of 2001) [5] Romesh Thapar v. State of Madras, 1950 AIR 124 [6] Shreya Singhal v. Union of India, AIR 2015 SC 1523 [7] Digital News Publishers Association v. Union of India and Others, W.P. No. 13055 and 12515 of 2021.