Tl;dr
Mr. T. M. Krishna, a prominent Carnatic music vocalist, cultural critic, and writer, had filed a petition before the Madras High Court challenging the validity of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The petition came up for hearing before a bench led by the Chief Justice of the Madras High Court on 11th August 2021. At the hearing, the counsel for the government sought more time to respond to the petition. Since this is the third time the government sought time to file its counter affidavit, the Court directed them to explain why measures should not be taken against those responsible for not filing the reply. The case is now listed for 13th August 2021. Advocate Suhrith Parthasarthy represented Mr T.M. Krishna and IFF has provided legal assistance.
Background
On February 25th 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’). We have provided a deep dive analysis of IT Rules, 2021, where we have pointed out how the Rules are unconstitutional, undemocratic and how they fundamentally change the experience of Indians on the internet.
In June 2021, Mr T.M Krishna approached the Madras High Court, challenging the constitutionality of IT Rules, 2021. In the words of Mr Krishna, IT Rules, 2021 are particularly harmful to artists like him since the chilling effect the rules create “tend to altogether quell the creative process and makes it impossible for a person to think imaginatively, beyond conventional boundaries, and create art that is politically and socially salient.”
Proceedings before the Madras High Court
On 10th June 2021, Mr Krishna's petition was listed for the first time. The Madras High Court issued notice and directed the Union of India to respond within three weeks. The Union of India did not file a reply in that period, and the petition was next listed for 14 July 2021. On that day, the Union of India informed the Court that they had filed a transfer petition before the Supreme Court seeking transfer of cases challenging the validity of IT Rules, 2021. In response, the Madras High Court stated that since the Supreme Court had not stayed the proceedings instituted by Mr Krishna, the Government was bound to reply to the petition by 28th July 2021. The Madras High Court also listed the case on 11th August 2021.
However, theUnion of India did not reply to Mr Krisha’s petition by 28th July 2021. The Madras High Court heard the case on 11th August 2021. At the hearing, the counsel for the government sought more time to respond to the petition. Since this is the third time the government sought time to file its counter affidavit, the Court reprimanded the government and directed them to explain why measures should not be taken against those responsible for not filing the reply. The case is now listed for 13th August 2021. It is worth noting that it has now been 8 weeks since the matter first came up for hearing, and the Government was directed to file its reply.
Mr. Krishna was represented by a team led by Advocate Suhrith Parthasarthy and consisting of Advocate Surasika Parthasarthy. The Internet Freedom Foundation provided legal assistance in the drafting of the petition through Advocates Vrinda Bhandari, Abhinav Sekhri, Sanjana Srikumar, Tanmay Singh and Krishnesh Bapat. We thank Mr. Krishna for providing us with the opportunity of offering him legal assistance.
The Government has not replied to petitions filed in other courts
The Intermediary Rules 2021 have been challenged before several High Courts in at least 16 different proceedings. These challenges include a petition before the Kerala High Court, where IFF has provided legal assistance to LiveLaw Media Pvt. Ltd. In that petition, the Kerala High Court has restrained coercive action against LiveLaw Media under Part III of the Intermediary Rules, 2021.
However, to the best of our knowledge, in none of these proceedings, the Government has replied to the petitioners. For example, in the petition filed by Foundation for Independent Journalism, the Delhi High Court issued notice on 9th March 2021 and directed the government to file their counter affidavit by 16th April 2021. A response has not been filed yet. The Government also has not responded to a petition filed by Pravda Media Foundation, where the Delhi High Court issued notice on 28th June 2021 and directed the government to reply by 4th August 2021. Similarly, before the Calcutta High Court in a petition filed by Sayanti Sengupta on 23rd June 2021, the Union of India was directed to file its reply by 19th July 2021. However, no response has been filed yet.
On 10th August 2021, the Bombay High Court also orally commented on the fact that the government has not provided a reply to any of the petitions filed before various high courts. In response to the comments, the counsel for the Union of India stated that the Union of India will file a response within a few days.
We sincerely hope that the Union of India files their response to these petitions. IT Rules, 2021, have been in force since 25th February 2021, and in our opinion, they are beyond the rule-making power conferred upon the government. More importantly, they also violate the right to freedom of speech and expression and the right to privacy. Thus, it is necessary that Constitutional Courts determine the legality of these rules at the earliest. For that purpose, it is essential that the Government of India submits their defence of IT Rules, 2021, expeditiously.
Important Documents
- Writ Petition filed on behalf of Mr. T. M. Krishna (link)
- Previous post titled ‘Madras High Court issues notice in petition challenging the Intermediary Rules 2021 by T. M. Krishna’ dated 10th June 2021(link)
- Previous post titled 'Deep dive : How the intermediaries rules are anti-democratic and unconstitutional' dated 27th February 2021 (link)
- Previous post titled ‘Kerala HC restrains coercive action on the operation of Part III of the Intermediaries Rules, 2021 for LiveLaw' dated 10th March 2021 (link)