Union of India seeks a transfer of cases challenging IT Rules, 2021

Tl;dr

The Supreme Court has listed a transfer petition filed by the Union of India before an appropriate bench on 16th July, 2021. In the transfer petition, the Union of India has asked the Supreme Court to transfer before itself four cases pending before the Delhi High Court and the Kerala High Court where the constitutionality of IT Rules, 2021 has been challenged. LiveLaw Media Pvt. Ltd. (“LiveLaw”) is a petitioner in one of those cases and is now one of the respondents to the transfer petition. Crucially, SC did not stay the order of Kerala High Court restraining Union of India from taking coercive action against LiveLaw under Part III of IT Rules, 2021. In the proceedings before the Supreme Court, LiveLaw was represented by Senior Advocate Mr Arvind Datar. IFF also provided legal assistance to LiveLaw.

Supreme Court has listed Union of India’s Transfer Petition before an appropriate bench on 16th July, 2021

A two-judge bench of the Supreme Court consisting of Justice A.M. Khanwilkar and Justice Sanjiv Khanna directed to list a transfer petition filed by the Union of India before an appropriate bench on 16th July, 2021. In the transfer petition, the Union of India has asked the Supreme Court to transfer before itself four cases pending before the Delhi High Court and the Kerala High Court where the constitutionality of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021). has been challenged.

Crucially, the Supreme Court did not stay the order of the Kerala High Court restraining the Union of India from taking coercive action against LiveLaw Media Pvt. Ltd. (“LiveLaw”) under Part III of  IT Rules, 2021. The Supreme Court also did not order a stay on the proceedings pending before various High Courts, despite a request from Union of India’s counsel.

LiveLaw is one of the Respondents to the transfer petition and it owns and operates the legal news portal, and courtroom live update service, LiveLaw.in. Senior Advocate Mr Arvind Datar represented LiveLaw in these proceedings along with Ms. Liz Mathew, Advocate on Record. A team of lawyers, including Ms Vrinda Bhandari, Mr Abhinav Sekhri, Ms Sanjana Srikumar, Mr Tanmay Singh (IFF) and Mr Krishnesh Bapat (IFF) also provided legal assistance to LiveLaw. Solicitor General of India, Mr Tushar Mehta represented the Union of India.

Background

On 25th February 2021, the Ministry of Electronics and Information Technology and the Ministry of Information and Broadcasting notified IT Rules, 2021. These rules increase governmental control over social media intermediaries and the content posted on platforms operated by these intermediaries. These rules also regulate online curated content and digital news media, and subject them to the oversight of a committee composed of government officers. We have provided a deep dive analysis of IT Rule 2021 - here. In that post, we have explained how IT Rules 2021 are unconstitutional, undemocratic and how they will fundamentally change an Indian user's experience on the internet.

After the government notified IT Rules, 2021, several individuals, associations and organisations challenged the constitutionality of these rules before High Courts across the country. Internet Freedom Foundation provided legal assistance in a petition filed by LiveLaw before the Kerala High Court. On 10th March 2021, the Kerala High Court admitted LiveLaw’s petition and restrained the Union of India from taking any coercive action against LiveLaw under Part III of IT Rules, 2021. Internet Freedom Foundation has also provided legal assistance in a petition filed by Mr T.M. Krishna before the Madras High Court. On 10th June 2021, the Madras High Court had directed the Union of India to respond to Mr T.M. Krishna’s petition. The Madras High Court has now listed the petition for hearing on 14th July, 2021.

Union of India’s Transfer Petition

Union of India has filed this transfer petition seeking a transfer to the Supreme Court of four of the several petitions which challenge the validity of IT Rules, 2021 -

  1. Foundation for Independent Journalism & Ors. v Union of India & Anr Writ Petition (Civil) No. 3125 of 2021 pending before the Hon’ble Delhi High Court.
  2. LiveLaw Media Private Limited and Ors. v. Union of India Writ Petition (Civil) No. 6272 of 2021 pending before the Kerala High Court.
  3. Sanjay Kumar Singh v. Union of India Writ Petition (Civil) No. 3483 of 2021 pending before the Delhi High Court.
  4. Quint Digital Media & Anr. v Union of India & Anr. Writ Petition (Civil) No. 3659 of 2021 pending before the Hon’ble Delhi High Court.

Union of India has also asked the Court to club these petitions with a case titled Justice for Rights Foundation v Union of India & Ors, SLP No. 10397/2019 which is already pending before the Court. The proceedings in Justice for Rights Foundation were initiated long before the government notified IT Rules, 2021. The petitioner in Justice for Rights Foundations seeks directions from the Court regulating online platforms and content posted on online platforms.

Union of India’s transfer petition, which has been filed under Article 139A(1) of the Constitution, seeks a transfer of the four petitions mentioned above, on the ground that they are substantially similar to Justice for Rights Foundation.

Conclusion

We thank LiveLaw for allowing us to lend our expertise in this important case and are deeply grateful to all the lawyers who worked on this petition and especially Mr. Arvind Datar who led the legal team.

We will update you on 16th July, 2021.

Important Documents

  1. Previous post titled 'Deep dive : How the intermediaries' rules are anti-democratic and unconstitutional.' dated 23.11.2020 (link)
  2. Previous post titled ‘Kerala HC restrains coercive action on the operation of Part III of the Intermediaries Rules, 2021 for LiveLaw' dated 10.03.2020 (link)
  3. Previous post titled ‘Madras High Court issues notice in petition challenging the Intermediary Rules, 2021’ by T.M. Krishna. (link)