The Bombay High Court last month pronounced the judgement in a batch of petitions challenging the new IT Rules, 2023 notified by the Central Government amending the IT Rules 2021. The division bench of Justices Gautam Patel and Neela Gokhale delivered a split verdict. While Justice Patel ruled in favour of the petitioners to strike down the impugned rules, Justice Gokhale found nothing wrong in the newly amended rules. The matter has now been placed before the Chief Justice to see which bench will decide the issue.
Petitioners specifically challenged the constitutional validity of Rule 3(i) (II)(A) and (C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 which amended Rule 3(1)(b)(v) of the IT Rules 2021 as being violative of Articles 14, 19(1)(a) and (g) and 21 of the Constitution of India and Section 79 and Section 87(2)(z) and (zg) of the Information Technology Act, 2000.
According to the petitioners, the impugned Rule has a ‘chilling effect’ upon their freedom of speech and expression, guaranteed under Part III of the Constitution of India. They are aggrieved by the impugned Rule vesting authority in a Fact Check Unit (FCU) to be notified by the Government to identify the veracity or otherwise of ‘information’. Petitioners allege that the new rules deem the Government to be the sole arbiter of truth in respect of any business related to itself.
Submissions & Justice Patel’s Observations
Senior Advocates Navroz Seervai, Darius Khambatta and Arvind Datar along with Advocate Shadan Farasat and Advocate Gautam Bhatia appeared on behalf of the different petitioners. On the other hand, Solicitor General Tushar Mehta along with Additional Solicitor General appeared for the respondent Union of India.
It was argued on behalf of the petitioners that the impugned Rule is ultra vires to the governing parent act. No rule by executive action, made under any rule-making power, can either go beyond the statute or do what the statute cannot. Therefore, the amendment in question is, violative of constitutional freedoms; specifically, those guaranteed under Article 19(1)(a) of the Constitution of India, the right to free speech. Moreover, it was also argued on behalf of one of the petitioners (ie, Kunal Kamra) that the said amendment is violative of Article 19(1)(g), as it infringes his right to carry on a legitimate profession.
Mr Seervai referred to some of the relevant part of the affidavit in reply that was filed on behalf of the Union of India, which states-
“Knowingly and intentionally communicating patently false, untrue and misleading information/content is an anathema to the free speech right. Knowingly and intentionally “passing off’ patently false, untrue and misleading information/content as true information/content through deceptive and delusory means is the biggest abuse of free speech right. The same cannot in any manner be said to be constitutionally protected. In contrast, the public at large and the citizenry of the country have a constitutional right to know and receive true and correct information/content and to be protected against deceptive, untrue, patently false and misleading information/content.”
The right to free speech is not limited only to speaking some unknowable, ineffable, absolute ‘truth’ — let alone a ‘truth’ solely determined by the government of the day. The right to free speech cannot, thus, be abrogated by inveigling into some subordinate legislation a mechanism of ascertaining what the government believes is ‘the truth’, and preventing any counter narrative or alternative, Mr Seervai vehemently argued.
Thereafter, Justice Patel asked the question: if the FCU identifies some chunk of data about the business of the Central Government as fake, false or misleading, can the intermediary ‘interpret’ that content and come to the opposite conclusion? That it is not fake, false or misleading? Nothing in the impugned Rule even remotely suggest that intermediary has any such authority. The disjunctive ‘or’ puts FCU identified content (that which pertains to the business of the Central Government and is FCU-certified as fake, false or misleading) in a separate category or class. Loss of safe harbour is immediate if this content is not removed. This is what Mr Seervai calls the illusion of choice” he said.
Upon examining the extensive arguments on behalf of the petitioners and the union government, Justice Patel concluded the following-
What troubles me about the impugned 2023 amendment, and for which I find no plausible defence is this: the 2023 amendment is not just too close to, but actually takes the form of, censorship of user content. There is no material difference between this and the newsprint cases of the 1990s.
The impugned amendment makes the government’s chosen FCU the sole authority to decide what piece of user-content relating to the undefined and unknowable ‘business of the government’ is or is not fake, false or misleading. The lack of definition of these words: business of the government; fake; false; and misleading makes the amendment both vague and overbroad.
Anything might be the business of government. Anything could be said to be ‘fake’. ‘Misleading’ is entirely subjective. And as to ‘truth’ and ‘falsity’, throughout recorded human history there are few, if any, absolute truths. Perceptions, perspectives, possibilities, probabilities — all will to a greater or lesser extent colour what one chooses to believe or hold or chooses not to believe or hold. The assumption that there are absolute truths to even the business of government, even if we knew what that included and what it did not, is unsubstantiated.
Fact Check Unit
How the FCU will go about its business is also unknown. We are simply asked to trust it. This is not a question of trust, and especially not of distrust in any particular dispensation. It is simply a matter of setting the impugned Rule against the settled law and seeing whether it passes established Constitutional tests.
By shifting responsibility for user content to the vulnerable segment, viz., the intermediary, the amendment of 2023 effectively allows the government, through its FCU, to be the final arbiter not just of what is or is fake, false or misleading; but, more importantly, of the right to place an opposing point of view. We have already seen examples, and they are not entirely hypothetical. The government routinely rebuts criticism. If, in addition, this is now dubbed fake, false or misleading (and there are no guidelines to suggest why it cannot), then criticism and debate are stifled. There is little achieved in saying that the guidelines will come later. There is no assurance of that either; and they should have been in place by now if there was such an intent.
Who, after all, is to fact check the fact checker? Who is to say if the view of the FCU is fake, false or misleading? Quis custodiet Ipsos custodes?
Justice Patel explained that “as a general and perhaps even inflexible rule, every attempt to whittle down a fundamental right must be resisted root and branch. The slightest possibility of a fundamental right abridgment cannot be allowed to stand. Every attempt to limit any fundamental right must be demonstrably confined to its permissible limits within Articles 19(2) to 19(6). Everything else is illegitimate.”
He then quoted the famous words of YV Chandrachud CJI in Minerva Mills v Union of India & Ors-
“For between the ‘abyss of unrestrained power’ and the ‘heaven of freedom’ lie these three Articles of our Constitution: Articles 14, 19 and 21.”
Furthermore, the entire argument of the Union has more or less proceeded on the basis that all users are individuals. However, Justice Patel noted-
“But, as we have seen immediately, that is entirely incorrect. Users are also entities such as news outlets and journals. Not only do they have their own fact-checking systems, but they and their individual writers publish in print and online. The decisive test must surely be that if the material in print cannot be subjected to FCU checking and compelled deletion, there is no reason why, merely because the exact same material also appears online it is susceptible to unilateral determination of fakeness, falsity or being misleading.”
Finally, for the above reasons, Justice Patel sought to strike down the 2023 amendment to Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
Author: Nitish Kashyap
Click Here to read Justice GS Patel’s Judgement