In September, the Union Ministry of Information and Broadcasting sought information from digital media publishers under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 – even though the Bombay High Court had only the previous month stayed the provisions of the law that related to these queries.

This move by the government does not follow the High Court’s order in letter and spirit, says a new report by the Internet Freedom Foundation, a digital rights organisation.

This isn’t the only instance of the government, and even the courts, using a law that has been struck down. The most glaring example is Section 66A of the Information Technology Act 2000, which was struck down by the Supreme Court in 2015 but continues to be used. Section 66A outlawed some forms of offensive speech.

Still being used

The Internet Freedom Foundation report said that the organisation had filed a right to information petition asking the information ministry if it had sent notices to digital media publishers asking them to furnish some details about their operations. The ministry confirmed that it had sent them.

Publishers were asked to provide such information as the name of their publications, contact information and details about their grievance redressal mechanism. The ministry said that more than 2,100 publishers had provided the information.

The information was sought under Rule 18 of the 2021 IT Rules. Rule 18 says that a digital media publisher has to furnish the information ministry with the details about itself. These had to be furnished within 30 days of the publication of the 2021 IT Rules.

Retired Supreme Court judge Rohinton Nariman authored a judgment in 2015, ruling that Section 66A of the IT Act was unconstitutional. Credit: Sam Panthaky/AFP.

Regulating digital media

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules were notified in February 2021 and came into force in May. The rules aim to regulate intermediaries – which include social media websites, internet service providers and online marketplaces – as well as digital media publishers, which would include news websites and streaming services such as Netflix.

The rules have stringent compliance and content takedown requirements. For instance, under Rule 9(1) of the 2021 IT Rules, digital media publishers have to adhere to a code of ethics, which prohibits publishing or transmitting any content prohibited by law and specifies guidelines such as the Norms of Journalistic Conduct of the Press Council of India under the Press Council Act, 1978.

Under Rule 9(3), digital media publishers should have a three-tiered grievance redressal mechanism comprising self-regulation by the publisher, self-regulation by a publishers association and an oversight mechanism by the Central government.

These rules came under severe criticism for being unconstitutional, with the potential of having a “chilling effect” on media freedom. Even a United Nations Special Rapporteur noted that this provision goes against India’s obligations towards free speech and the right to privacy.

Several petitions were filed across the country challenging these rules.

Stayed by courts

In 2021, two High Courts, Bombay and Madras, stayed Rule 9(1) and Rule 9(3) of the 2021 IT Rules. This is an interim stay, but will be applicable until the courts make a final decision on the validity of the rules.

The Bombay High Court, in August, noted that the 2021 IT Rules are “manifestly unreasonable” and go beyond the scope of its parent legislation, the IT Act. Allowing it to operate in its present form might result in criticism of public figures being stifled. Rule 9 prima facie infringes the freedom of speech and expression, it said. The court put an interim stay on the operation of the rules.

In September, the Madras High Court said that there is prima facie “substance in the petitioners’ grievance” that the mechanisms to control the media under these rules “may rob the media of its independence”.

The Kerala High Court had also passed orders in March and July saying that no coercive action should be taken on the basis of the 2021 Rules against petitioners who had approached the court.

In operation even after stay

According to the Internet Freedom Foundation, the information collected by the ministry goes against the stay by the High Courts. “There has been a violation of the Bombay High Court’s intent of staying the operation of certain provisions of the IT Rules,” Apar Gupta, Executive Director of Internet Freedom Foundation, told “This demonstrates a larger pattern in which compliance is not being implemented in letter and spirit by various arms of the executive.”

He pointed out not following directions of the court also happened in cases relating to Aadhaar, internet shutdowns and Section 66A of the IT Act as well.

However, a senior government official told the Times of India that the provisions that have been stayed do not affect the notices sent by the government. “What has been stayed by the courts is a small section of the IT Rules,” he said. “The whole rules are not under litigation. In any case, if anyone has issues, they can go to court and the ministry will answer in court.”

However, even though Rule 18 has not been categorically stayed by the courts, while asking for information under this rule, the information ministry has also asked publishers to provide information about its grievance redressal officers and self-regulating bodies. The section of the IT Rules relating to grievance redressal has been stayed by the High Courts.

When the Internet Freedom Foundation asked under which legal authority this information was being sought, given the High Court stays, the ministry said that this information fell outside the scope of the Right to Information Act 2005.

Additionally, as the Internet Freedom Foundation points out, the point of Rule 18 is to collect information about digital media publishers so that the ministry can regulate them under the 2021 IT Rules. The teeth of the regulation, under Rule 9, has been removed by the courts.

“Thus, the reason to collect information under Rule 18 has been taken away by High Courts,” Tanmay Singh, Litigation Counsel at Internet Freedom Foundation told “One cannot help but wonder what the government wants to achieve through this information collection.”

Several other questions have also gone unanswered. For instance, the ministry informed the Internet Freedom Foundation that it does not have the information on how many publishers provided their details after the provisions were first stayed by the Bombay High Court.

The foundation has now sought more information from the government. “We will pursue this further,” Singh said. “We have appealed to the first appellate officer, as prescribed by the RTI Act, and will take further steps, as required.”

Anurag Thakur was appointed the Minister of Information and Broadcasting in July 2021. Credit: PTI.

A pattern

This incident brings out an interesting situation on the application of a law even after it has been stayed or struck down by the courts. In August, the Supreme Court expressed shock when it was brought to its notice that the police were registering FIRs and courts were conducting proceedings under Section 66A of the Information Technology Act, a provision that had been struck down in 2015.

Even the Allahabad High Court issued a direction in December 2021 that police and courts should not proceed under Section 66A of the IT Act. This was after a person who was being charge-sheeted under this provision approached the court.

Section 66A of the IT Act penalised sending “offensive messages” without defining the term “offensive”. This was struck down by the Supreme Court as being unconstitutional since it excessively invaded the right to free speech and went beyond the reasonable restrictions that the Constitution allows.

A study spanning 11 states had found that after the provision was struck down, at least 1,300 cases were registered under Section 66A and 570 cases still remained pending by the end of 2020.

This is not the only instance of a law being used after it has been struck down. In a paper from 2018, the authors found that even Section 303 of the Indian Penal Code, which was struck down by the Supreme Court in 1982, was used to convict a person in 2012. Section 303 of the Indian Penal Code prescribed that if a person commits murder while serving life imprisonment, he would be sentenced to death.

In 2019, after parts of Section 377 of the Indian Penal Code that criminalised homosexuality was struck down by the Supreme Court, an op-ed in the Indian Express noted that there were still reports of the police using this section to harass transgenders thus undercutting the “letter and spirit of the SC decision”.