Govt In Best Position To Provide Correct Facts About Itself; Criticism, Political Satire Not Stifled By IT Rules Amendment: Justice Neela Gokhale
In a split judgement, Justice Neela Kedar Gokhale of the Bombay High Court said she would uphold the 2023 amendment to IT Rules, 2021 empowering the government to establish a Fact check Unit and declare online content related to the government's business on social media platforms as fake, false or misleading. Justice Gokhale rejected the argument that the impugned Rule, by...
In a split judgement, Justice Neela Kedar Gokhale of the Bombay High Court said she would uphold the 2023 amendment to IT Rules, 2021 empowering the government to establish a Fact check Unit and declare online content related to the government's business on social media platforms as fake, false or misleading.
Justice Gokhale rejected the argument that the impugned Rule, by encompassing critical opinions, satire, parody, and criticism, renders it unconstitutional. She underscored that the Rule specifically addresses content that is fake, false, or misleading; not genuine opinions or expressions.
“Content comprising of a critical opinion or a satire or parody, howsoever critical of the Government or its business, if it 'exists' and is not fake or known to be false or misleading, does not fall within the mischief sought to be corrected by the impugned Rule...Fake is something which is non-existent. The question of subjective interpretation of fact does not arise, because the very fact itself is non-existent”, she said.
On the question of vagueness of the terms 'fake, false, and misleading' and 'business of the government', Justice Gokhale opined that the government is in the best position to provide correct facts regarding its business. "Since it is the Government which will be in the best position to provide correct facts on any aspect related to the conduct of its own business, the vagueness of the term by itself is not sufficient to strike down the entire Rule as ultra vires."
She emphasized that the terms 'Fake,' 'False,' or 'Misleading' are to be understood in their ordinary sense.
Justice Gokhale stated that Section 79(3)(b) of the IT Act was read down in the Shreya Singhal case to only cover restrictions under Article 19(2) of the Constitution. Meaning, intermediaries lose 'safe harbor' or protection from hosting third party content only if the offensive information violates the reasonable restrictions in Article 19(2). However, according to the amended Rule, intermediaries did not need to directly “take down” content flagged by the FCU. Intermediaries had the option to issue a disclaimer instead with respect to content that didn't clearly violate Article 19(2) restrictions. “The words 'reasonable effort' do not mean only 'take down' as the Rule does not pre-empt the option of issuance of a 'disclaimer'”, she added.
Justice Gokhale rejected the arguments that the Central Government will be an arbiter in its own cause by requiring the intermediaries to act pursuant to identification of information as fake, false or misleading by the FCU constituted by itself.
Justice Gokhale pointed out that the FCU has not been notified yet and said that challenge under Article 14 is premature. “alleging bias against the members of the FCU only for the reason of their being government appointees is unfair and this by itself does not divest their character as independent persons”, she said.
She said that a grievance redressal mechanism exists and emphasized that a jurisdictionally competent court remains the final arbiter. She emphasized that any actual bias can be legally contested, and the recourse to courts is always available.
Justice Gokhale opined that the impugned Rule explicitly targets misinformation that is knowingly false and shared with malicious intent. It safeguards political satire, parody, criticism, opinions, and views, unless they are communicated with 'actual malice.' She asserted that the Rule does not directly penalize intermediaries or users without resorting to a court of law.
Justice Gokhale held that the impugned Rule meets the test of proportionality. She highlighted the citizens' right to access authentic information in a participative democracy, asserting that measures adopted by the government are consistent with the law's object, and any encroachment on fundamental rights is proportionate to the expected benefits.
Finally, Justice Gokhale stated that the Rule cannot be struck down merely on the potential of abuse. Users can always approach the court if the intermediary violates their fundamental rights under Articles 14, 19 and 21, despite the information shared by them not falling under 'offensive information' as per the impugned Rule, she said.
The controversial amendment was notified in January 2023 and was immediately challenged in court by digital news portals, media associations and satirists like Kunal Kamra.