Is it permissible in law to have statute with ‘unbound, limitless discretionary authority’, HC asks Centre on amended IT rules

The pleas challenged the constitutional validity of Rule 3 (1) (II) (A) and (C) of the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, stating that this would, in effect, amend Rules 3 (1) (a) and 3 (1) (b) (v) of the IT Rules, 2021, violating several Supreme Court judgments.

According to the IT rules amended in April this year, content marked by the FCU as “fake or misleading” will have to be taken down by online intermediaries if they wish to retain their “safe harbour” (legal immunity against third-party content).

The court also sought to know whether the online editorial or opinion content criticising government policies would be considered or flagged to be fake and misleading by the FCU.

“In newspapers, look at criticism of government figures on the state of the economy in the country. The figures may come from official sources or analysts may have their own figures. Is it fake news? We want to know what happens to editorial content online? You may find any editorial extremely hard hitting. There could be an editorial on India’s relations with China. What happens to that? We are in the realm of the unknown. We do not know what is going on here,” the bench said.

The court referred to the words ‘fake’ and ‘false’ and ‘misleading’ and questioned as to what are the boundaries and limits of the said words and sought to know from the Centre if they have precise definitions laid down in the law as the court said it had “difficulty grappling with definitions”.

The court said that the rules stipulate action against “fake, false and misleading” news through an FCU, which assumes power to unequivocally say that the content is false or not.

“Having FCU is fine but we are concerned about authority conferred on FCU. What we find extremely and seriously problematic is these words – fake, false and misleading…We are having difficulty grappling with definitions of those words. We are not bothered about fact checking. Do these four words have precise definitions?” the bench asked.

“We do not know and cannot make out what are the boundaries of these three words in amendment or the word (government) “business”. Is it permissible in law for statute to have unbound and limitless discretionary authority like this? On its own, when plainly read, what are the limits and boundaries of these four words? We want to know what the contours or boundaries are.”

On Thursday, the bench had said if the effect of a rule or law is unconstitutional, it has to go, no matter how laudable the motive may be. The bench had also asked whether the mechanism of the Press Information Bureau (PIB), which has been in existence for a long time, is so inadequate that it requires an amendment to include the FCU.

On Friday, senior advocate Navroz Seervai, appearing for Kamra, continued his arguments and said the impugned rules will have a “chilling effect” on the fundamental rights of the citizens.

The bench remarked, “…The FCU has got constitutional power to pronounce (what is false, fake and misleading). What is the source of the power? I am not even sure even a civil court could authoritatively pronounce on truth or falsity. It may be pronounced based on likelihood or probability. This is not a binary. It can’t be a binary.”

The High Court will continue hearing the pleas on July 13. Meanwhile, the Centre also told the court that the FCU, set up to identify “fake news” published online related to the government, will not be notified till July 14.