Unfettered power: Bombay HC on Centre's amended IT rules

On Tuesday, the Bombay High Court stated that the recently amended Information Technology (IT) Rules against fake news on social media give unfettered power to a government authority in the absence of guidelines and guardrails.

Conversely, the Union government assured the court that the Rules were not intended to restrict freedom of speech, humor, or satirical content directed towards the government. Additionally, they emphasized that the Rules do not prohibit individuals from criticizing even the Prime Minister.

A division bench of Justices Gautam Patel and Neela Gokhale was hearing petitions filed by stand-up comedian Kunal Kamra, the Editors Guild of India, and Association of Indian Magazines against the Rules, terming them arbitrary and unconstitutional and claiming that they would have a chilling effect on the fundamental rights of citizens.

The court on Tuesday also sought to know what necessitated the amendment and provision for a separate Fact Checking Unit (FCU) when the Press Information Bureau (PIB) is already doing fact-checking on social media.

You (government) have a PIB which has its presence on social media. Why then was this amendment required and for an FCU to be set up? I think this amendment wants to do something more, Justice Patel said. Solicitor General Tushar Mehta, representing the Union government, said the PIB was teethless (sic) and he would argue on this point on Wednesday.

The objective was not to curb free speech, opinion, criticism or satire against the government or even the prime minister but to create a balancing mechanism to tackle a medium that was uncontrollable and uncontrolled, he said.  IT Rules are not related to curbing free speech at all. The government is not trying to proscribe and prohibit any expression of opinion, criticism, or comparative analysis…in fact we welcome them, encourage them and learn from them, Mehta said.

 Rules have nothing to do with humour or satire, whether it is to the liking of the government or a political party, as far as the content does not cross the line of what is considered obscene or vulgar, the solicitor general said.

The government is not going after free speech, opinions, humour, or satire. That is not in the realm of the IT Rules. The Rules only put in place a system. A balancing mechanism is provided, he added. The bench, however, remarked that the Rules are over broad and without any guidelines. The government is the sole arbiter without any checks and balances on what is the truth. Basically, who will fact check the fact checker? We will have to trust the Fact Checking Unit (to be set up under the Rules) as the final arbiter, Justice Patel said.

During the hearing, when Solicitor General Mehta reiterated that the FCU would solely examine false and fabricated facts rather than opinions or criticisms, the court raised the question of how the government's truth could be considered the ultimate truth. The court also pointed out that the term "government business" in the Rules lacked a clear definition. In response, Mehta stated that this was a well-defined term, clarifying that the actions of the executive branch constitute government business, while the statements or actions of the Prime Minister are not categorized as such and can be subjected to criticism.

The court further noted that while the government was saying that the Rules apply only to fake news, the Rules, on the face of it, say information and not facts.