The Bombay High Court on Tuesday ordered the centre to file a reply to a plea filed by the stand-up comedian Kunal Kamra, challenging an amendment to the Information Technology (Intermediary Guidelines and digital media ethics code) Rules,2021 which empowered the government to identify fake news on social media against the central government.
On April 6th, the Ministry of Electronics and IT made the IT 2023 rules, which further amended the information technology rules 2021.
The petition challenges Rule 3(1)(II)(A) and (C) of the 2023 amendment that amends IT rules 2021, which provides that the central government’s Ministry of Electronics and Information Technology can notify a fact-checking body, which is empowered to identify and tag what it considers false or fake online news concerning any activity of the central government.
The effect of this amendment would be that the false or misleading content would then have to be taken down or censored by telecom service providers and social media sites failing which they would lose the “safe harbour” which is the legal immunity they enjoy against third-party content.
He states that the rule in effect amends Rule3(1)(a) and Rule 3(1)(B)(V) of the IT Rules 2021 as a result of which the IT amendment rules 2023 is ultra vires section 79 of the Information Technology Act,2000 and violates the Article 14 and 19 (1)(a),19 (g) of the constitution.
“They strike at the very rule of law and our democratic quality, as they constitute a direct assault by the respondent on freedom of thought, speech and expression, referred to by the Supreme Court as one of the pillars of our constitution.”
He has argued that the change in the rules is manifestly arbitrary, identifying a piece of news as false or misleading by the government would make the central government the judge and the prosecutor in its case, thus violating a very basic fundamental principle of natural justice.
Kamra was represented by Advocate Navroz Seervai who submitted that the amendments violate free speech under Article 19(2) of the Indian constitution and will have a chilling effect and therefore should be stayed.
“The principles of Natural Justice are not followed, as there is no provision of show cause notice before taking action.”
Moreover, social media has its own rules concerning fake news or misleading content where they send you notice once or twice and if you continue to post such inadmissible content, they suspend your account and lastly deactivate it.
Kamra in his plea also stated that the court should declare the rules in question as unconstitutional and pending the hearing of his plea urged the court to restrain these amendments to be implemented and asked the court to grant interim relief as these amendments would cause “grave injury and irreparable harm” to him and other citizens of the country.
Additional solicitor general Anil Singh, the representative of the central government, said that the amendment has not yet come into force, and hence, no interim order is required. He highlighted there is no urgency for interim relief and the amendment will only come into force after a notice is issued.
The division bench of Justice Gautam Patel and Justice Neela Gokhale passed no interim order and asked the Centre to issue a reply by April 19, requiring the Centre to include factual background of the rules and need for the amendment and posted the case for the next hearing on April 21.
Written by Vaishnavi Goel (BA.LLB), 6TH Semester, Punjab School of Law, Punjabi University, Patiala
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