New Delhi (Agency): On July 6, 2023, the Bombay High Court made a poignant assertion regarding the interpretation of laws and rules, emphasizing that even the most well-intentioned provisions must yield to constitutional norms. This declaration, made by Justices Gautam Patel and Neela Gokhale, came amidst the court’s examination of a series of petitions lodged against the newly amended Information Technology Rules.
The court’s agenda encompassed a multitude of petitions which challenged the changes to the Information Technology Rules. The modifications have empowered the central government to single out and take action against content deemed as ‘fake news’ on social media platforms. The claimants who contested these amendments included stand-up comedian Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines.
These petitioners have levied substantial accusations against the rules, branding them as “arbitrary” and “unconstitutional”. They maintain that such regulations could usher in a “chilling effect” on citizens’ fundamental rights. Earlier this year, on April 6, the Union government introduced several amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. This included the introduction of a fact-checking unit purposed with identifying and flagging false or misleading online content connected to the government.
In their petitions, Kamra and the other parties pleaded with the court to denounce these amended rules as unconstitutional. Furthermore, they urged the court to instruct the government to abstain from acting against any individuals under the remit of these rules. Prior to this, the Union government had reassured the court it would hold off on notifying the fact-checking unit until July 10.
Navroz Seervai, the senior counsel representing Kamra, presented a passionate critique of the rules, encapsulating the sentiment of the petitioners: “It is my way or the highway.” He argued that the government is striving to control the narrative by dictating the content shared on social media, thus marginalizing dissenting voices.
Seervai questioned the government’s intent and belief in its citizens’ intellect, expressing concern about the state’s apparent paternalistic approach. He queried, “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?”
He further insisted that these rules violate citizens’ fundamental rights and urged the court to examine their constitutionality. In response, Justice Patel asserted, “No matter how laudable or high the motives are, if the effect is unconstitutional then it has to go.”
The court also discussed the role of social media intermediaries, noting that they, as corporations, are less concerned with the content they host and more inclined to comply with government directives.