Opinion Centre’s fake news provision under IT Rules inconsistent with fundamental rights

It is not rhetoric when the need to guard against dilution of fundamental rights is emphasised time and again — it is a reminder to each one of us, as citizens of this country, to cherish that which was obtained through hard battles and loss of lives. It is also a reminder to the pillars of democracy to ensure the upholding of such rights and most importantly to undertake their duties responsibly and in keeping with the Constitution.

Hence when a statement is made that any person aggrieved by an unconstitutional provision may take it to court, it is not a challenge to those aggrieved but to the very constitutional principles that necessitate the executive to ensure compliance therewith, whilst formulating regulations under Parliament-enacted laws.

So, did we have legal protection to combat fake news before the 2023 additions? The most preferred democratic process to combat the threats and impact of fake news on a polity would be through Parliament-enacted laws, which are robust and comprehensive. Singapore’s “Protection from Online Falsehoods and Manipulation Act 2019” is illustrative.

India opted for the speedier alternative of an addition to the Intermediary Guidelines of 2021 (as amended), through Rule 3(1)(v). This Rule places a “reasonable effort” requirement on intermediaries including social media platforms to ensure that a user does not disseminate content that deceives or misleads on the origin or “knowingly and intentionally communicates any information which is patently false or misleading in nature but may reasonably be perceived as a fact”.

Under Rule 3(2), any complaints from users or government or court have to be actioned by the grievance officer of an intermediary, including social media platforms, within 15 days. This timeframe for actioning a complaint inter alia for complaints of false or misleading news, is reduced to 72 hours. The next step for resolution is provided through the Grievance Appellate Committees, which the government recently announced appointments for.

These remedies are independent of and in addition to the remedies available in law for a government agency to seek takedowns or blocking, as per due process or for courts to decide thereon.

The remedies that the central government thought fit to introduce, as recently as in 2022, are therefore still in place and accruing to the benefit of victims, including the central government, if it perceives a violation. The above is a short summation of existing provisions to combat fake news. Such provisions require due process to be followed and not to scuttle free speech through unilateral actions.

Why is this addition then bad in law? The Centre, as a user or in the exercise of its powers as a government authority authorised under Parliament-enacted laws, or through orders of a court was well within its right to seek takedowns, as quickly as 72 hours.

There is no legitimate aim, reason or rationale and certainly, no proportionality to create a separate category for restraint on dissemination by users of content “in respect of any business of the Central Government”. And yes, the restraint is on users and not intermediaries, as misconceived by many. The onus on intermediaries is only of “reasonable effort”. However, with merely a central government-authorised fact check unit saying so, content could be classified as “fake, false or misleading” and a takedown and action necessitated, without even a semblance of due process.

The above addition clearly militates against settled law and the Constitution. The Supreme Court in Puttaswamy judgment reaffirmed the need for legitimacy, supported by parliament enacted laws, which are proportionate to meet the test of constitutionality. Supreme Court’s recent judgment in the Media One case (Madhyamam Broadcasting Limited v. Union of India, April 5, 2023) reiterates that which is enshrined in Article 13 — any law or regulation inconsistent with fundamental rights is void. This judgment also reaffirms the four principles that will decide the constitutionality of a law or regulation: (i) unreasonableness or irrationality; (ii) illegality; and (iii) procedural impropriety. In the present instance, there is an absolute absence of legitimate aim for this additional restriction on users and an abject lack of procedures that would assure due process.

On the face of it, this addition is unsustainable and certainly unwarranted as provisions, albeit, through delegated legislation, already exist. Let us forget the noise of politics or stridency that drowns out the voice of reason and remind ourselves that our constant fight is for the protection of rights, fundamental and essential to our very existence.

The writer is an advocate practising before the Supreme Court of India and founder, Cyber Saathi