This post is authored by Dhruv Bhatnagar
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“2021 IT Rules”) were challenged before several High Courts (refer here and here) almost immediately after their promulgation. In one such challenge, initiated by the publishers of the online news portal ‘The Leaflet’, the Bombay High Court, by an order dated August 14, 2021, imposed an interim stay on the operation of Rules 9(1) and (3) of the 2021 IT Rules. Chiefly, this was done because these provisions subject online news and curated content publishers to a vaguely worded ‘code of ethics’, adherence to which would have had a ‘chilling effect’ on their freedom of speech. However, the Bombay High Court refused to stay Rule 16 of these rules, which empowers the Ministry of Information and Broadcasting (“MIB”) to direct blocking of digital content during an “emergency” where “no delay is acceptable”.
Part I of this two-part series, examines the contours of Rule 16 and argues that the Bombay High Court overlooked the procedural inadequacy of this rule when refusing to stay the provision in the Leaflet case. Part II assesses the legality and constitutionality of the rule.
Overview of Rule 16
Part III of the 2021 IT Rules authorises the MIB to direct blocking of digital content in case of an ‘emergency’ in the following manner:
The MIB has correctly noted that Rule 16 is modelled after Rule 9 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (“2009 Blocking Rules”) (analysed here), and confers upon the MIB similar emergency blocking powers which the Ministry of Electronics and Information Technology (“MeitY”) has possessed since 2009. Both provisions confer discretion upon authorised officers to determine what constitutes an emergency but fail to provide a hearing to impacted publishers or intermediaries at any stage.
Judicial findings on Rule 16
The Bombay High Court’s order in the Leaflet case is significant since it is the first time a constitutional court has recorded its preliminary findings on the rule’s legitimacy. Here, the Bombay High Court refused to stay Rule 16 primarily for two reasons. First, the High Court held that Rule 16 of the 2021 IT Rules is substantially similar to Rule 9 of the 2009 Blocking Rules, which is still in force. Second, the grounds upon which Rule 16 permits content blocking are coextensive with the grounds on which speech may be ‘reasonably restricted’ under Article 19(2) of the Indian Constitution. Respectfully, the plausibility of this reasoning is contestable:
Equivalence with the 2009 Blocking Rules: Section 69A of the IT Act and the 2009 Blocking Rules were previously challenged in Shreya Singhal, where both were upheld by the Supreme Court (“SC”). However, establishing an equivalence between Rule 16 of the 2021 IT Rules and Rule 9 of the 2009 Blocking Rules to understand the constitutionality of the former would have been useful only if Shreya Singhal contained a meaningful analysis of Rule 9. However, the SC did not examine this rule but rather broadly upheld the constitutionality of the 2009 Blocking Rules as a whole due to the presence of certain safeguards including: (a) the non-emergency process for content blocking under the 2009 Blocking Rules includes a pre-decisional hearing to identified intermediaries/originators before content was blocked; and (b) the 2009 Blocking Rules mandate the recording of reasons in blocking orders so that they may be challenged under Article 226 of the Constitution
However, the SC did not consider that the emergency blocking framework under Rule 9 of the 2009 Blocking Rules not only allows MeitY to bypass the essential safeguard of a pre-decisional hearing to impacted stakeholders but also fails to provide them with either a written order or a post-decisional hearing. It also did not address that Rule 16 of the 2009 Blocking Rules, which mandates confidentiality of blocking requests and subsequent actions, empowers MeitY to refuse disclosure of blocking orders to impacted stakeholders thus depriving them of the opportunity to challenge such orders.
In fact, Rule 16 was cited by MeitY as a basis for denying film critic Mr. Tanul Thakur access to the blocking order by which his satirical website ‘Dowry Calculator’ was banned. Mr. Thakur challenged Rule 16 of the 2009 Blocking Rules and highlighted the secrecy with which MeitY exercises its blocking powers in a writ petition which is being heard by the Delhi High Court. Recently, through an interim order dated 11 May 2022, the Delhi High Court directed MeitY to provide Mr. Thakur with a copy of the blocking order blocking his website, and offer him a post-decisional hearing. This is a significant development since it is the first recorded instances of such a hearing being provided to an originator under the 2009 Blocking Rules.
Thus, the Bombay High Court’s attempt in the Leaflet case to claim equivalence with Rule 9 of the 2009 Blocking Rules as a basis to defend the constitutionality of Rule 16 of the 2021 IT Rules was inapposite since Rule 9 itself was not substantively reviewed in Shreya Singhal, and its operation has since been challenged on constitutional grounds.
Procedural safeguards: Merely because Rule 16 of the 2021 IT Rules permits content blocking only under the circumstances enumerated under Article 19(2), does not automatically render it procedurally reasonable. In People’s Union of Civil Liberties (“PUCL”) the SC examined the procedural propriety of Section 5(2) of the Telegraph Act, 1885, which permits phone-tapping. Even though this provision restricts fundamental rights only on constitutionally permissible grounds, the SC found that substantive law had to be backed by adequate procedural safeguards to rule out arbitrariness. Although the SC declined to strike down Section 5(2) in PUCL, it framed interim guidelines to govern the provision’s exercise to compensate for the lack of adequate safeguards.
Since Rule 16 restricts the freedom of speech, its proportionality should be tested as part of any meaningful constitutionality analysis. To be proportionate, restrictions on fundamental rights must satisfy four prongs: (a) legality – the requirement of a law having a legitimate aim; (b) suitability – a rational nexus between the means adopted to restrict rights and the end of achieving this aim, (c) necessity – proposed restrictions must be the ‘least restrictive measures’ for achieving the aim; and (d) balancing – balance between the extent to which rights are restricted and the need to achieve the aim. Justice Kaul’s opinion in Puttaswamy (9JB) also highlights the need for procedural safeguards against the abuse of measures interfering with fundamental rights (para 70 Kaul J).
Arguably, by demonstrating the connection between Rule 16 and Article 19(2), the Bombay High Court has proven that Rule 16 potentially satisfies the ‘legality’ prong. However, even at an interim stage, before finally ascertaining Rule 16’s constitutionality by testing it against the other proportionality parameters identified above, the Bombay High Court should have considered whether the absence of procedural safeguards under this rule merited staying its operation.
For these reasons, the Bombay High Court could have ruled differently in deciding whether to stay the operation of Rule 16 in the Leaflet case. While these are important considerations at the interim stage, ultimately the larger question of constitutionality must be addressed. The second post in this series will critically examines the legality and constitutionality of Rule 16.
 Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Ors., (2016) 7 SCC 353; Justice K.S. Puttaswamy & Ors. v. Union of India (UOI) & Ors., (2019) 1 SCC 1; Anuradha Bhasin and Ors. v. Union of India (UOI) & Ors., (2020) 3 SCC 637.