New Delhi, March 3 The Supreme Court on Monday agreed to examine a plea challenging the IT Rules which makes it optional to issue a blocking request notice to the originator of the digital content.
A Bench of Justices BR Gavai and AG Masih sought the Centre’s reply to the petition seeking quashing of Rules 16, 8 and 9 of the Blocking Rules, 2009 and declaring them ultra vires the Constitution’s Articles 14, 19, and 21.
The plea challenged the constitutional validity of these provisions, arguing that by making the issuance of a blocking request notice to the originator of the content optional, vests unguided discretion in the authorities whether or not to issue notice to the originator, hence violates the originator's right to be heard prior to their content being blocked.
Rule 8 does not obligate the Designated Officer to mandatorily notify the originator of the content to appear with their defence, and as a result, the originator is denied the fundamental right to be heard before the blocking action is taken, the plea said.
The petition claimed that the effect of the blocking action is the violation of the right to freedom of speech and expression and violates the Constitutional right of the originator to a fair hearing, as guaranteed by Article 21 and Article 19(1)(A) of the Constitution of India, and contravenes the principles of natural justice.
“To sustain the constitutionality of Rules 8 and 9, the word "or" must be read as "and" since the right to be heard of an aggrieved party is a fundamental right especially when another fundamental right is sought to be violated or restricted, namely, the right to free speech and expression of the originator,” contended the petition filed through advocate Paras Nath Singh.
It added that authorities in practice rely on the “arbitrary use” of Rule 9 as an emergency provision to block user content without any prior notification, leaving the originator of the content no mechanism of relief due to the lack of a notice, a reasoned order, and an opportunity to be heard.
“The absence of notice and the opportunity to be heard in emergency cases effectively eliminates procedural fairness and violates the constitutional rights of individuals under Articles 14, 19, and 21, as well as the principle of natural justice,” the petition said.
Further, it said that Rule 16 perpetuates a contravention of the principles of natural justice by withholding the supply of reasoned orders, notice, or an opportunity of hearing to aggrieved persons whose information is blocked under Section 69A of the Information Technology Act, 2000.
“Rule 8 and 9 of the Blocking Rules, 2009, is liable to be declared unconstitutional for having no guidelines for the use of discretion to give or not to give notices to the originator and in any event, to save its constitutionality to be read to mean that the notices is mandatorily sent to the originator and be read down to ensure that both the intermediary as well as the originator are mandatorily notified of any blocking request issued by the Designated Officer,” urged the plea.
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