IT Rules, 2021 causing petitioners "to live in constant fear:" Bombay High Court asks Centre to file affidavit on why Rules should not be stayed

The Bombay High Court on Tuesday directed the Central government to file a short affidavit by Friday detailing why an interim stay should not be imposed on the operation of the Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) till the challenge is decided on merits. (AGIJ Promotion Of Nineteenonea Media Pvt. Ltd. & Anr. v. Union of India & Anr.).The petitioners had sought an interim stay on the application of the IT Rules, 2021 till the Writ Petition challenging the Rules was decided. .The Court was inclined to grant the stay explaining to the Additional Solicitor General Anil Singh that the operation of the rules was causing "them (the Petitioners) to live in constant fear.".However, the ASG sought time to file an affidavit to detail on why a stay should not be granted..The Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni also told Senior Advocate Darius Khambata that a caveat would be imposed, should stay be granted.."If the Rules are held up in the final Writ Petition and the writ fails subsequently, you cannot use our stay as a shield. During the period of the stay, you must continue to engage in activities with a sword hanging over your head," the Court said. .The Court was hearing petitions challenging the recently notified IT Rules, 2021 issued under the Information Technology Act.The petitioners before the Court include a digital news portal, Leaflet and a Mumbai Journalist Nikhil Mangesh Wagle..Both petitions claim that the IT Rules, 2021 are contrary to the fundamental rights under Article 14, 19 and 21 of the Constitution of India and ultra vires the Information Technology (IT) Act.Another contention is that the IT Rules, 2021 had been issued after unlawfully delegating judicial powers to the executive and that it is an attempt to overrule a long line of precedents rendered by the Supreme Court..Senior Advocate Darius Khambata, appearing for Leaflet, had previously argued that the new "IT Rules curtailed and unconstitutionally restricted the freedom of press in India"..The writ petition sought quashing of the IT Rules on the ground that the parent Act had been introduced for facilitating electronic commerce in India and not to govern internet at large..It was stated that there was not a single provision which permitted any authority to take generic actions for the regulation of the internet under the legislation and that despite this, the IT Rules, 2021 sought to create a wide class of entities known as "publishers" and regulate them, ostensibly under the aegis of IT Act..Khambata submitted that the rules were "seeking to effectively monitor and censor speech in the internet by a different Ministry, the most draconian law on free speech of recent times.".He prayed for an immediate stay on the rules claiming they had a chilling effect on free speech. "These rules are so vague, so draconian that they have chilling effect on free speech, so much so that they have to be stayed immediately!" Khambata had argued on Monday..Advocate Abhay Nevagi, appearing for Wagle, had contended on Monday that the IT Rules, 2021 granted excessive and arbitrary powers over and above what is provided by the IT Act.His grievance was that if the government started reading the data of individual persons based on their online profiles on WhatsApp or Twitter, then the government will start profiling people based on their political inclinations and sell that data to third parties. ."Companies like WhatsApp, Signal, Telegram, if they start reading data of a person.. Data is dangerous. If they start picking up data, then they may just profile people based on their political inclinations, etc.. That is how they conduct elections worldwide, based on profiling," he submitted..He further argued that neither Section 87 nor the IT Act as whole empowered the Union of India or the Ministry of Information and Broadcasting, Government of India to control or regulate of digital news media and OTT Platforms.."Under Rules, you cannot bring something that is not there in the Act. It is not there in the parent act, then under some other mechanism, you cannot bring it," it was stated..The Bench had earlier adjourned the hearing of the petition in light of the petitions filed by Central government in the Supreme Court seeking transfer of all such pending petitions challenging the IT Rules.However, the Supreme Court had refused to pass any interim order staying the proceedings before various High Courts challenging the Rules..[IT Rules challenge] No stay by Supreme Court on High Court proceedings for now; Central government's transfer petition tagged with pending plea.The matter is listed to be heard by the High Court again on Friday.