Bombay High Court in Plea Challenging IT Rules Amendment: Government is Not Repository of Truth, Citizens have Right to Doubt & Question

Bombay High Court in Plea Challenging IT Rules Amendment: Government is Not Repository of Truth, Citizens have Right to Doubt & Question

The Bombay High Court by its division judge’s bench comprising of Justices GS Patel and Neela Gokhale while hearing the petitions challenging Rule 3(i)(II)(C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, orally remarked that the government itself is a participant in the democracy who has to answer citizens’ doubts about itself, and thus, the power of the Centre’s fact checking unit (FCU) to identify fake news about the government is ‘difficult.’

Justice GS Patel remarked, “In a democratic process, the essence of which is discourse, government itself is a participant. It is not repository of truth that cannot be questioned. Forget the fundamental right to lie, it is the citizens right to doubt, question the government and it has to answer. This power here [of FCU], it's very difficult.”

While the bench noted that FCU was entrusted to identify fake or misleading news about business of the government, the judges wondered who will fact-check the FCU. The Judges were of the view that if Press Information Bureau posts some news which is fake, nothing will be done about it under the Rules.

The present petitions have been filed by Kunal Kamra, the Editor’s Guild, and Association of Indian Magazines.

The bench enquired as to how same news published in print media could be any less fake or misleading than in digital medium and expressed concerns about the amended Rules singling out digital content.

Previously, in a detailed affidavit, the Centre had filed its response to Kamra’s petition, that if a social media or news website continues hosting information the Government’s FCU has flagged as ‘false’ or ‘misleading’, it will have to defend itself before a Court if action is taken.

Advocate Gautam Bhatia appearing for Association of Indian Magazines submitted that the government may argue that it knows best about government business. However, this could be done without removing the protection offered to intermediaries in the form of safe harbor, he said.

He further contended that government is not permitted to distinguish between high value and low value speech on its own via executive action.

According to Bhatia, if the amendment was narrow, for example there are certain provisions that penalize falsehoods in form of disparaging advertisements, defamation, outraging modesty, then it wouldn't be a problem. These are already covered by Article 19(2), he emphasized.

Senior Advocate Arvind Datar, appearing for the News Broadcast and Digital Association, argued that the amendment did not pass the test of constitutionality due to absence of definitions of phrases.

“Rule 3(1)(b)(v) has to be quashed as the government has not defined what is business of government,” he argued.

He further stressed that the new Rules introduced through the amendment could not be provided even by Parliament.

“In the present case, not a single test is satisfied on proportionality. Can any democracy, that it is a legitimate state aim that they will decide what people should know? What is the rationale connection?” Datar asked.

To this, the bench reiterated that while the fundamental right to speech under Article 19(1)(a) did not include a right to lie, it included a right to be defend the correctness of a statement made.

“Government affidavit says if there is no stringency of government rules, intermediaries will run amok. which is not the case at all. Because if PIB tweets something on its social media accounts, what will you do? Nothing,” Justice Patel said.

The Bench also questioned whether FCUs had any boundaries to the exercise of their power.

“This power identified by the FCU to find out misleading, fake. I am asking whether a court can do it? We are trying to understand this. Who fact checks the FCUs? I want to know what the boundary is. I do not know what the boundary is. Because then I do not know what is being tested under 19(2)."

The conflict in the present case, stemmed from the contention forwarded by Kunal Kamra, who is a political satirist and relies on social media platforms to share his content and the Rules could lead to his content being arbitrarily blocked, taken down, or his social media accounts being suspended or deactivated.

The bench had observed that the new amendment to IT Rules 2022 prima facie lacks the necessary safeguards to protect satire.

Moreover, the Centre had stressed that it would be in public interest for ‘authentic information’ to be ascertained and disseminated after fact checking by a government agency so that the potential harm to the public at large can be contained.

The petition had alleged that the real motive behind the Rules is that the Central Government does not want its actions to be scrutinized by anyone. The amendment will not be covered by any of the reasonable restrictions under Article 19 of the Constitution.

Additionally, the petition asserted that the Rule arbitrarily discriminated between fake/false or misleading information about the Central Government as opposed to all other forms of fake/false or misleading information.

Solicitor General Tushar Mehta is expected to commence arguments on behalf of the Union Ministry of Electronics and Information Technology (MeitY) from July 29.