IT Rules Amendment Prima Facie Lack Necessary Safeguards To Protect Satire: Bombay High Court In Kunal Kamra’s Challenge

The new amendment to IT Rules 2022 prima facie lacks the necessary safeguards, the Bombay High Court observed on Monday in the plea filed by stand-up comedian Kunal Kamra.

A division bench of Justices Gautam Patel and Neela Gokhale made the observation while refusing to adjourn the matter for ad- interim reliefs beyond Thursday.

“The (Union's) affidavit says that satire etc will be exempt .... but the rules don't say so. The problem here is the Rule however well intentioned, doesn't have the necessary guard rails.”

The bench added that on the face of it, the challenge survived. “It's pressable,” the court said.

The court was hearing Kamra’s plea challenging Rule 3(i)(II)(C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 allowing the Government’s fact checking unit to identify “fake news” about government policies, etc.

During the hearing, ASG Anil Singh requested for an adjournment till next week as the Solicitor General of India would be appearing in the matter.

However, Senior Advocate Navroz Seervai for Kamra called the affidavit filed by the Ministry of Electronics and Information Technology “facile.” He said the real motive behind the Rules is that the Central Government doesn’t want its actions to be scrutinized by anyone. Any post that does so would be branded as false, he said.

Seervai added that even though the Fact Checking Unit is yet to be notified, “the chilling effect has already begun. Today people in the country are scared. But they shouldn't be in a democracy" (where there is a rule of law).

He added that the amendment wouldn’t be covered by any of the reasonable restrictions under Article 19 of the Constitution of India. “Why should the 1.4 billion citizens of India be put into jeopardy?” he said.

Background

According to Kamra’s plea, through the new rule Intermediaries (social media platforms) are supposed to make reasonable efforts to “cause” users not to upload or share “misinformation” or “misleading information”. This departed from the earlier IT Rules of 2021, which only required intermediaries to just “inform” users of their obligation not to upload or share “patently false or misleading information," Kamra's plea states.

Intermediaries are further meant to make reasonable efforts to cause users to not publish, or display information that "in respect of any business of the Central Government, is identified as fake or false or misleading” by the fact checking unit of government.

Kamra said he is a political satirist who relies on social media platforms to share his content and the Impugned Rules could potentially lead to his content being arbitrarily blocked, taken down, or his social media accounts being suspended or deactivated.