Bombay High Court seeks Centre’s reply to Kunal Kamra’s plea against amended IT Rules

On April 6, the Ministry of Electronics and IT (MEiTY) promulgated the 2023 Rules, which further amended the Information Technology Rules, 2021, and allowed the ministry to appoint the fact-checking unit. The online content marked as such by the fact-checking body as “fake or misleading” will have to be taken down by online intermediaries if they wish to retain their “safe harbour”, which is the legal immunity they enjoy against third-party content.

Kamra has challenged Rule 3(1)(II)(A) and (C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023. Through senior advocate Navroz Seervai, Kamra stated the said Rule in effect would amend Rules 3(1)(a) and 3(1)(b)(v) of the IT Rules, 2021 and the same violated several past Supreme Court judgements.

Seervai referred to the August 14, 2021, order of the Bombay High Court bench led by then Chief Justice Dipankar Datta, who is a Supreme Court judge now, that had stayed two clauses of Rule 9 of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, calling “the indeterminate and wide terms” prima facie against the right to freedom of speech enshrined in the Constitution, and going beyond the “substantive law of IT Act”

“A division bench of HC found no difficulty in staying Rule 9 as it was obnoxious. The impugned 2023 Rules strike at the heart. These Rules have a chilling effect and are enough to chill people. After the publication of this notification, my client is liable to the fact-checking committee. He will not have any say when the Rule is retrospectively applied,” Seervai said.

“The Impugned Rules are ultra vires of Section 79 (exemption from liability of intermediary in certain cases) of the Information Technology Act, 2000, and Articles 14 and 19(1)(a) and 19(1)(g) of the Constitution, and therefore unconstitutional and void…They strike at the very rule of law and our democratic polity, as they constitute a direct assault by the respondent authorities on freedom of thought, speech and expression, referred to by the Supreme Court as one of the three pillars of our Constitution,” Kamra’s plea stated.

The petition stated that unless the court granted interim relief of staying such Rules, the same will cause “grave and irreparable harm, injury and prejudice” to the petitioner and other citizens of India. Kamra sought direction from the court to declare the impugned Rules as unconstitutional and pending the hearing of his plea, urged the court to restrain the Centre from implementing the amended Rules.

Seervai argued the Rules in question do not fall within the scope of reasonable restrictions on freedom of speech provided in Article 19 (2) of the Constitution. The amendments are against public interest and unreasonable. “The principles of natural justice are not followed as there is no provision of show-cause notice before taking action. Whereas social media platforms have their rules where they give you notice, maybe once, twice and if you continue repeating publishing of objectionable content, then your account is first suspended and if it goes on, it is deactivated. Some people have their careers on social media platforms. If that protection/safeguard is taken away, their career is finished.”

However, Additional Solicitor General Anil Singh representing the Centre submitted there will be a separate notification regarding the ‘Fact Checking Unit,” therefore there was no urgency in hearing the plea.

The court directed the Central Government to file a reply to the plea by April 19 and posted the further hearing to April 21.