HC in fake news rules hearing: If effect of law is unconstitutional it has to go

The Bombay high court on Thursday remarked that no matter how laudable or high the motives are while framing rules, if the effect of a rule or law is unconstitutional then it has to go.

A division bench of Justices Gautam Patel and Neela Gokhale also noted that the Union government was silent as to why an amendment was required now to the Information Technology Rules to identify and act against fake news.

The bench was hearing a bunch of petitions challenging the recently amended Information Technology Rules that empower the Centre to identify fake news against the government on social media.

Stand-up comedian Kunal Kamra, the Editors Guild of India and the Association of Indian Magazines filed petitions in the high court against the rules terming them as arbitrary, unconstitutional and saying they would have a "chilling effect" on the fundamental rights of citizens.

On Thursday, senior counsel Navroz Seervai, appearing for Kamra, said the amended rules were a way of the present government saying "it is my way or the highway".

"The government is saying it will ensure social media covers only what the government wants and what it (government) terms as the truth and ensure everything else is censored," Seervai said.

The government wants to take on the role of parents or a nanny of the public, Seervai added.

"Why does the government have so low an opinion on the intellect of its citizens that they need to be treated with a nanny's state? Does the government have so little faith and confidence in the public that they have to take on the role of parents so as to shield them from what they (government) claim is bad, distasteful and not the truth," Seervai said.

He added that the rules were violative of the fundamental rights of citizens and that the court should consider whether the effects of the same were unconstitutional.

To this, Justice Patel said, "No matter how laudable or high the motives are, if the effect is unconstitutional then it has to go."

The court said the Press Information Bureau (PIB) has long been keeping a check on fake news, as admitted by the Centre.

”Whenever PIB issues a clarification, every news channel and paper carries it. We have not got any clarification from the Centre why now this structure needs to be changed. If this structure was working well, why does it require an amendment? That is what we want to know, but the affidavit filed by the Centre is silent on it,” Justice Patel said.

The bench added that all this would not have been required during the print days.

”The power and reach of technology and the internet is beyond imagination. The government cannot do without the internet as that is where they carry out their business. But it comes with its limitations. This is more like the fear of the unknown,” Justice Patel said.

Seervai further argued that the government cannot act as a judge while ascertaining the veracity of any information available on social media.

He added that social media is where several people like satirists and some journalists who have been shunned for whatever reasons air their views.

Seervai said social media has opened a channel for not just expression of views but also for receiving information.

The court said it would continue hearing the matter on Friday.

On April 6 this year, the Union government promulgated certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including a provision for a fact-checking unit to flag fake, false or misleading online content related to the government.

The three petitions sought the court to declare the amended Rules unconstitutional and direct the government to restrain from acting against any individual under the rules.

The Union government had earlier assured the court it would not notify the fact-checking unit till July 10.

Seervai added that the intermediaries are big corporations running social media applications and they are least concerned with the information they host. "It is not necessarily in their interest to retain the information in exchange of losing their safe harbour," he said.

The bench then noted that when the intermediaries are not concerned with the content then they would just comply with the direction from the government.

"This is why no intermediary company has filed a petition against the Rules," Justice Patel said.