(The authors, Naman Pratap Singh and Anshuman Mishra are third year law student at Faculty of Law, Jamia Millia Islamia, New Delhi.)
Recently, Justice Atul Chandurkar, after a split verdict by Justice Patel and Justice Gokhale in Kunal Kamra v. Union of India has held the 2023 notification under Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is violative of Articles 14 and 19 of the Indian Constitution and has subsequently struck down the IT Amendment Rules, 2023. These rules enabled the government to establish a Fact Check Unit (FCU), empowered to notify social media platforms in cases of misinformation, and extended to content takedown powers. This article explores the rationale of the judgement and analyses the future prospects of litigation involving freedom of speech and censorship. The article also contemplates the idea of individual freedom and free speech with a need to regulate healthy dialogue in a democracy.
What the case is all about?
Kunal Kamra, along with several other petitioners, challenged the 2023 notification under IT Rules, 2021 before the Bombay High Court claiming the amended rules violate Article 14 and 19. The central issue was a Ministry of Electronics and Information Technology notification which notified amendments to Information Technology (Digital Media Ethics Code) Rules, 2021 under section 87(2)(zg) of the Information Technology Act, 2000.
The petitioners argued that the amendments do not provide for any grievance redressal mechanism or opportunity for intermediaries to appeal against content takedowns by the FCU which violates the principles of natural justice and make the government the “sole arbiter” without judicial oversight. The amendments exceeded the scope of the IT Act of 2000 and breached the Supreme Court mandate in Shreya Singhal, which limited governmental regulation of online expression. The government’s stance was centred on ensuring order and accuracy in information dissemination while affirming its authority to regulate content connected to its activities without violating constitutional rights.
In Search of Clarity: Split Verdict
In the previous split verdict, conflicting views were expressed by Justice Patel and Justice Gokhale. Justice Patel affirmed the government notice ultra vires, deeming it violative of Article 14, 19 and Section 79 of the IT Act. He criticised the arbitrary nature of terminology such as “fake” and “misleading,” cautioning against their misuse. Justice Gupta, on the other hand, sustained the notice, emphasising the need for fact-checking in combating disinformation in government affairs, claiming that it enhances public trust while not infringing on basic rights, as long as proper safeguards exist. This is in clear contradiction with Shreya Singhal v. Union of India, which mandates on clear guidelines when imposing restriction upon freedom of speech and expression. Meanwhile, the petitioners moved the Supreme Court, claiming that the recent modification had a chilling impact on the fundamental rights. Despite the Union Government notifying the creation of a FCU, the Supreme Court stayed its operations until the Bombay High Court ruled on the matter.
The tie-breaker
In the recent judgement by Justice Chandurkar, it has been held that the amended rules are ultravires of IT Act 2000 and observed that phrases “fake, false, or misleading” are ambiguous and overbroad, and cannot be resolved by interpretation or concessions. The need for a new Fact Checking Unit was questioned, as the Press Information Bureau already handled fact-checking. Concerns were also expressed regarding the lack of comparable supervision systems for alternative media sources. It was argued that interpretations of ‘business of the government’ might differ substantially. It was further argued that such disparities violate the right to practise any profession under Article 19(1)(g) of the Constitution. Justice Chandurkar, agreeing with this view, emphasised that there is no “right to truth”. The state has no obligation to guarantee that citizens only receive “truthful” information, nor does it have the authority to determine what is false or misleading.
Where does it lead us?
Freedom of speech as under Article 19(1)(a) of the Constitution of India is an inalienable right, but under the imperative that information be subjected to reasonable restrictions. However, any unilateral authority mandating immediate action without any opportunity to hear intermediaries is nothing short of a vain attempt at authenticating information on social platforms. Removing content labelled as “fake, false, or misleading” by the FCU is ineffective and can be misleading owing to the subjectivity at play. There certainly lurks a threat that the government may selectively remove or flag social media posts via fact-checking unit. Moreover, the state should not have unrestricted power to determine what is acceptable, nor can it assert itself as the sole custodian of public trust.
Democracy thrives on free debate and strong public engagement. It is based on people’s intellectual participation in communal issues, therefore public discourse is an essential component that distinguishes it from other forms of government, as was maintained in S. Rangarajan v. P Jagjivan Ram. Monitoring online exchange of information on various social platforms is indeed a mutually conflicting situation where restriction and indifference could be equally detrimental. The context of information needs much consideration while deciding on its authenticity, which may be relative. Loss of safe harbour protection as envisaged under the Section 79 of IT Act, on account of non-compliance with Rule 3 of the IT Rules, would cudgel intermediaries to not toe the line and duly follow the diktats of the FCU. In Shreya Singhal case, it was clearly established that only in pursuance of a government order, the intermediaries can be expected to block contents online. The IT Amendment Rules, by threatening the safe harbour protection of intermediaries on failing to block content at the government’s request within a limited time frame, is in clear contradiction with the Shreya Singhal judgment as was also held in Justice Chandurkar’s judgement.
Censoring content simply because it may threaten the government’s narrative/perspective sets a worrying precedent. This has the potential to stifle genuine disagreement and undermine the fundamental ideals of a free and open society. It is important to contemplate whether speech can be curtailed for its inflammatory potential. Should restrictions on speech, including the removal of fake news, be strictly grounded in Article 19(2) or can transgress much beyond it. There is a pressing need to reconsider how governments handle disinformation, even when courts do not mandate a right to truth or hold the state liability. It is crucial to consider the democracy we envision—one in which we can recognise harmful content and mould public opinion responsibly or where the democratic ideals are preyed by sheer indifference.
The objectives of IT Act, 2000 do not align with practices of establishment of FCU and content takedowns. However, many states have established such units under Indian Penal Code, raising questions regarding their legal authority. Without clear legal rules, there is tremendous doubt about the scope of these powers, as well as the requisite supervision and accountability procedures. Recent UP Digital Media Policy 2024 marches in an altogether different direction. Clause 7(2) allowing the state government extensive authority to identify any online post as “anti-social” or “anti-national”, if it “paints the government in a bad light” or “create with mala fide intent.” This raises questions regarding who judges what is “anti-national” and if a mere criticism the government qualifies as such. The policy provides for monthly payments of up to ₹8 lakh to ‘empanelled influencers’ to promote government projects. The policy’s objective and the state of conformity it expects, is apparent and alarming. Devising strong compartmentalisation on criteria of what qualifies as truthful, can never result in an efficient discourse on the issue.
Conclusion
The Puttaswamy test(See para 71) for determining the proportionality of state action involves four main criteria: a legitimate state aim, suitability, necessity and balance (proportionality strictly speaking). While the IT amendment rules may coincide with legitimate aims and proportionality stricto sensu, there is still a need for clarity on suitability and necessity. Existing fact-checking procedures already handle these issues and also, the rules raising serious concerns about fairness and due process. Justice Chandurkar’s decision underscores the vitality of judicial oversight in limiting arbitrary government intervention in content regulation. The future of such litigation will need to deliberate on focusing on interpreting the broader legal implications besides the stance against imposing censorship under the guise of fact-checking, but to examine alternative methods to implement fact checking functions under constitutional mandates. Ultimately, the evolving landscape of freedom of speech and expression in India requires careful consideration of competing interests, including the need for regulatory frameworks that uphold democratic principles while combating the menace of disinformation.
Leave a Reply