Can’t bring hammer to kill ant, Centre’s IT rules against fake news may be excessive: Bombay HC

Court says the government is not a repository of truth that cannot be questioned, and that it does not understand the need for the amendment to the rules

The Bombay High Court is hearing a bunch of petitions challenging the constitutional validity of the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.  | Photo Credit: VIVEK BENDRE

The Bombay High Court on Friday said the Centre’s recently amended Information Technology (IT) Rules that includes a provision to constitute a fact-checking unit (FCU) to flag fake, false or misleading information against the government on social media might be “excessive” and that one cannot “bring a hammer to kill an ant”. The new rules require social media intermediaries to censor or modify content that relates to the Central government if a government-mandated FCU directs them to do so.

A Division Bench of Justices Gautam Patel and Neela Gokhale said this while hearing a bunch of petitions challenging the constitutional validity of the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023. Political satirist Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines had filed the petitions seeking the court to declare the rules unconstitutional.

Advocate Gautam Bhatia, for the Association of Indian Magazines, said, “Does the Constitution authorise the government to classify speech based on values? Does the Constitution authorise the government to arbiter what is true and false? Are the impugned amendments intra vires the parent statute? The answer to all is no.”

The court said it might be right “to say that these rules are excessive” and added that it did not understand the need for the amendment to the IT Rules. “One cannot bring a hammer to kill an ant. But leaving this excessive part aside, I still don’t understand what was the concern that necessitates this amendment. What is the anxiety behind it? What was the need? I still don’t know,” the Bench said.

The court noted that in a democratic process, the essence of discourse is that “the government is as much a participant as the citizen”. It court said the government is not a repository of truth that cannot be questioned. “It is a fundamental right to doubt, to question, to demand answers from the government and it is the duty of the government to respond,” it said.

‘No clear definition’

Senior advocate Arvind Datar, appearing for the New Broadcast and Digital Association, said what is fatal to the amendment is that words like “fake and misleading” have not been clearly defined.

“I want to know what the boundary is. I do not know what is being tested under Article 19(2) of the Constitution,” the court said. This provision pertains to restrictions in the interests of the security and sovereignty of India.

“We are going for a national election soon. People are going to campaign hard. There are going to be statements made across parties. Let us assume one channel, or digital or print media, decides to do a fact-check on someone’s statement and finds it is fake. What if the Press Information Bureau says, ‘No, your fact-check is fake, false, misleading?’”

The court said, “What happens to intermediaries like mobile phone-based apps, which show news from other portals?”

The court posted the next hearing for July 27 when Solicitor-General Tushar Mehta will start his arguments on behalf of the Union government. The Bench said the Centre’s statement that it will not notify the FCU will stand extended till July 28.