Supreme Court stays proceedings before High Courts challenging IT Rules, 2021, interim orders to continue

tl;dr

On May 9, 2022, transfer petitions filed by the Union of India, asking for challenges across High Courts to the IT Rules, 2021 to be transferred to the Supreme Court were heard. LiveLaw and Carnatic classical vocalist Mr. T.M. Krishna are petitioners in two challenges to the IT Rules, 2021 before the Kerala HC and Madras HC, respectively, where we have provided legal assistance, and have been able to secure protective interim orders. Today, the Supreme Court stayed further proceedings in the IT Rules challenges before HCs. As of now, there is no stay on any orders passed by the HCs in these IT Rules challenges, including the order of the Kerala HC.

Why should you care?

The IT Rules, 2021 have far-reaching consequences on online privacy, freedom of speech and expression, as we have written before. They give the government considerable control over social media platforms, digital news publications, and on-video entertainment services, making these services seriously prone to censorship. Injunctions against specific provisions of the IT Rules, 2021 were secured after months of sustained efforts, and the next few hearings before the Supreme Court will be crucial as the hard-earned stay orders secured from high courts in these matters will be put to the test.

Background

On 25th February 2021, the Ministry of Electronics and Information Technology and the Ministry of Information and Broadcasting notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021”). These Rules increase governmental control over social media intermediaries, as well as the content posted by users on platforms operated by these intermediaries. The IT Rules, 2021 also regulate online curated content and digital news media, and subject them to the oversight of a committee composed of government officers.

The IT Rules have been contentious. After the government notified the IT Rules, 2021, at least 17 different challenges to the constitutionality of the IT Rules have been filed before various High Courts of India by individuals, associations and organisations. IFF has provided legal assistance in two such petitions. One has been filed by LiveLaw before the Kerala High Court, where the Union of India was restrained from taking any coercive action against LiveLaw under Part III of the IT Rules, 2021. And the other is a petition filed by Mr T.M. Krishna before the Madras High Court, where a stay on the operation of Rules 9(1) and 9(3) of the IT Rules was affirmed, and it was also clarified that any action taken under Rules 3 and 7 of the IT Rules would be subject to the final decision in the matter.

The Union of India filed a transfer to the Supreme Court

The Union of India has 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. have also been 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.

Supreme Court stays proceedings, but not the orders

Accordingly, the bench was pleased to issue notice in respect of all the petitions, to be heard next on May 19, 2022, on the issue of separation of matters. The Supreme Court also ordered a stay on all proceedings currently pending the High Courts, and any new matters that may be filed. However, the interim orders that have secured protections against specific provisions of the IT Rules, 2021 have not been stayed, and continue to be operational.

These protections granted by the Kerala, Bombay, and Madras High Courts were secured through months of sustained efforts by several affected parties, and the next few hearings before the Supreme Court will be crucial since these orders will be put to the test.

We are thankful to LiveLaw and Mr. T. M. Krishna for allowing us to lend our expertise in these important matters. We are also grateful to the legal team comprising Advocate Vrinda Bhandari, Advocates-on-Record Liz Mathew and Rashmi Nandakumar, and Advocates Suhrith Parthasarathy, Abhinav Sekhri, Tanmay Singh, Krishnesh Bapat, Anandita Mishra, and Amala Dasarathi.  We will update you on 19th May, 2022.

Important Documents

  1. The Special Leave Petition filed by the Union of India against the Order of the Kerala High Court dated 21.03.2021. (link)
  2. Our post on earlier proceedings before the Supreme Court in the same matter. (link)
  3. Our deep dive on how the IT Rules 2021 are unconstitutional and undemocratic, and how they will fundamentally change an Indian user's experience on the internet. (link)