Bombay HC delivers split verdict on pleas of Kunal Kamra, others against amended IT Rules; third judge to decide

In his verdict, Justice Patel noted that the petitioners were “correct in saying that the State cannot coercively classify speech as true or false and compel the non-publication of the latter. That is nothing but censorship.”

However, Justice Gokhale said that alleging bias on the part of FCU members because they were government appointees was “unfair”, and the recourse to courts of law was always open in case of any bias. The Rules “were not directly penalising” the intermediary or the user and “did not bring any chilling effect on their rights”, she said.

The petitioners included stand-up comic Kunal Kamra, Editors Guild of India, News Broadcasters and Digital Association and Association of Indian Magazines.

In accordance with the HC Rules, the bench directed its registry to place the petitions before Chief Justice Devendra Kumar Upadhyaya for referring it to a third judge.

Appearing for the Centre, Solicitor General Tushar Mehta told the HC that the FCU, to be set up under the amended IT Rules to identify fake, false and misleading facts on social media, would not be notified for 10 days.

After Mehta submitted that he did not have instructions to extend this beyond 10 days, the HC said substantive application for further continuance should be made to the third judge.

In April last year, the Ministry of Electronics and Information Technology (MEiTY) promulgated the 2023 Rules, which further amended the Information Technology Rules, 2021.

Under the new Rules, if the FCU comes across or is informed about any posts that are “fake”, “false” or contain “misleading” facts pertaining to the business of the government, it would flag it to the social media intermediaries. The online intermediaries would then have to take down such content if they wanted to retain their “safe harbour” (legal immunity against third-party content).

The petitioners had challenged the constitutional validity of the Rules, terming them arbitrary, unconstitutional, and in violation of fundamental rights. The Centre had said it was not against any kind of opinion, criticism, satire or humour targeting the government, and the Rules were meant to only proscribe or prohibit peddling of fake, false and misleading facts on social media related to “government business”.

The bench had concluded the hearings on September 29 last year and said the judgment would be pronounced on December 1. However, the ruling was later deferred.

On Wednesday, Justice Patel rejected “the attempt to curtail Article 19(1)(a) buried in the submission that the fundamental right is to ensure that every citizen receives only ‘true’ and ‘accurate’ information — as determined by the government”.

“It is not the business of the government to keep citizens from falling into error. It is the other way around. For it is very much (the) business, and should be the duty, of every citizen to prevent the government from falling into error. Governments do not select citizens. Citizens elect governments,” he observed.

He said the government-controlled Press Information Bureau (PIB) “already has a significant social media presence” and there was “no need” for any FCU to be created.

Stating that the right to freedom of speech was not “absolute”, Justice Patel said it is always to be “under-regulated” while “restrictions on it – attempts at control and abridgement – must be over-regulated”, and “not the other way round”.

This is not a finding that there is a fundamental right to falsehood or fake news or deepfakes, he said, adding that it was quite the contrary.

He said it was “unthinkable” that any one entity can unilaterally identify the content to be fake, false or misleading, and this “cannot be sole preserve of the government”. The argument that the government is “best placed to know the truth” about its affairs is equally true of every citizen and every entity, he said.

He said there was “no justification as to why the business of the central government should stand on a special footing distinct from other information”.

“The suggestion that the central government most especially is in a particularly vulnerable position and cannot defend itself is hardly tenable. It has information. It has a reach. It can disseminate widely. For the one authority that can literally shut down the internet in a region, pull the plug entirely, to suggest this is hardly credible,” he said.

Justice Patel noted that there are various “fertile grounds” for criticism of the government and this takes place on print as well as online/ digital platforms. “After all, the fundamental rights are to protect the minority, not the other way around. The argument that a news outlet is not a ‘citizen’ and cannot complain is also without merit,” he said.

In her contrasting judgment, Justice Gokhale held the impugned rule as neither ultra vires to the IT Act nor contrary to the Supreme Court judgment. “The impugned Rule is not violative of Article 14 based on the FCU consisting of government officials thereby making the government the final arbiter in its own cause,” she said.

Justice Gokhale held that “the rights of a user or any aggrieved person to approach the grievance redressal mechanism and the appellate authority is contemplated under the Rules and the competent court is the final arbiter of the issue.”

“No content is restrained by the impugned Rule, unless the content is patently false, untrue and is communicated with ‘actual malice’ i.e., with knowledge of its falsehood and with reckless disregard for the truth and is deceptively passed off as, and statement of, truth,” she said.

Justice Gokhale noted that the character of FCU’s authority was “yet unknown”, therefore, the challenge on the basis of apprehension and potential abuse was “premature”.

Dismissing the pleas, she held: “Right of citizens to participate in the representative and participative democracy of the county is meaningless unless they have access to authentic information and are not misled by misinformation.” She concluded that the measures adopted by the government were “consistent with the object of the law”.