The 31st January decision of Justice Gautam Patel of the Bombay High Court in a bunch of petitions, popularly known as the Kunal Kamra’s case, stands out for its compelling articulation of the constitutional fundamentals in relation to the right of free speech on “social media.” Uncoerced by the climate of our times, The learned Judge has reiterated the sacrosanctity of the inviolate constitutional guarantee of free speech, not to be tinkered with or read down, except for the reasonable restrictions thereon as envisaged in Article 19(2), (6) of the Constitution. The affirmation of this constitutional right and its eloquent defence against State encroachment by the distinguished Judge is reassuring, even though his decision on the subject is not yet binding, because of a split verdict by the Division Bench.
The context of the decision is the amended Rule 3(1)(b)(v) of the IT Rules 2021, widely perceived as arbitrary and unjust. Relevant extracts of the Rule are reproduced below:
“3(1)…(b) the intermediary…shall make reasonable efforts by itself, and to cause the users of its computer resource to not host, display, upload, modify, publish, transmit, store, update or share any information that, — (v) …in respect of any business of the Central Government, is identified as fake or false or misleading by such fact check unit of the Central Government as the Ministry may, by notification published in the Official Gazette, specify.”
Failure to comply with the due diligence obligation under the above amended rule would invite penal consequences for the errant intermediary under Rule 7, reproduced below:
“Where an intermediary fails to observe these rules…The intermediary shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code.”
The combined effect of these provisions is to confer unfettered powers on the government appointed Fact Check Unit (FCU) to control the digital content in matters connected with the business of the Central government without specifying the contours of the government’s business.
Declaring the amended Rule unconstitutional, Justice Patel held that the amendment results in a form of censorship of user content that is vague and overbroad, destructive of the right to criticise and debate, does not disclose reasonable standards and objective criteria to determine the validity of the decisions of the FCU as the sole decision maker, that the amendment is not within the boundaries of reasonable restrictions envisaged in Article 19 (2), (6) and that the impugned amendment was unconstitutional for infracting the rule of non-arbitrariness and non-discrimination in Article 14 absent, “clear guidance” and non-application of the Rule to the print media. Invoking, amongst other principles, the doctrine of proportionality and the absolute necessity of the measure to achieve the State’s goal, the Judge held the amended Rule as ultra vires Article 19(1)(a), 19(2), 19 (1) (g), 19 (6), Article 14 and Section 79 of the IT Act.
The decision of the learned Judge vindicates the constitutional conscience in as much as it scoffs at “the potential for wanton abuse” of untrammelled power, a view wholly consistent with the first principles of Constitutional governance. The capping glory of the decision rests on the Judge’s elevating enunciation of the democratic principle that “the cacophony of dissent and disagreement is the symphony of a democracy at work…”. The resounding rejection of the impugned amendment for its “chilling effect” (Shreya Singhal, 2015; Zeran, 1997) and “a frontal assault on the marketplace of ideas” is the Judge’s welcome message that fear instilled stillness ill serves the case of a vibrant democracy.
Importantly, the decision does not discount the need for regulation of digital platforms. Indeed, there can be no doubt about the imperative of combatting fakery and misinformation, which are not only a threat to democracy but also to the indefeasible right to the reputation and dignity of individuals. The truth of Jonathan Swift’s statement in 1710 that “Falsehood flies, and truth comes limping after it,” was never more pronounced as now.in the age of the internet.
This decision of Justice Patel is in its essence, a repudiation of the unreasonably wide ambit and discriminatory nature of the regulatory power under the amended Rule and protection against the imminent potential of its abuse. It represents a just balance between ‘the abyss of unrestrained power’ and the ‘heaven of freedom.’ The decision It validates the logic of judicial review as a bulwark against the excesses of majoritarian assemblies and untamed power. It reaffirms the foundational premise of a democratic State that “the will of the State is subject to scrutiny by those who are affected by the exercise of State power and that democratic power” is “a trust held upon conditions,” to secure the inherent rights of the people (Harold Laski, A Grammar of Politics, 1937). The judgment tells us that in times of executive centred governance, a law that permits its enforcers to become agents of injustice cannot be countenanced in a constitutional democracy.
The clarity of thought, the power of a clear statement and its unexceptionable constitutional premise lend a unique quality to a defining judicial decision, which represents a convergence of constitutional principles and the nation’s felt sensitivities about the critical right of free speech as a necessary condition of freedom. Hopefully, its irrefutable rationale will attain judicial finality before long. In the interregnum, it is hoped that the Centre government will heed the reported indicative suggestion of the Judge (7th Feb) to the Centre, not to notify and operationalise the amended/impugned Rule. The tradition of deference to judicial decisions in complex matters of significant import and expectation of self-restraint on the part of the government to foster inter-institutional comity demands that the impugned amendment to Rule 3(1)(b)(v) of the IT Rules 2021 be kept in abeyance.
(Ashwani Kumar is a Senior Advocate, Supreme Court and former Union Minister of Law & Justice. Views expressed are personal)
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