Govt Has The Loudest Voice With Biggest Megaphone, Doesn't Need A Fact Check Unit For Its Protection: Justice Gautam Patel On IT Rules Amendment

In a split judgement Justice GS Patel of the Bombay High Court said he would strike down Rule 3(1)(b)(v) of the IT Rules amendment 2023 empowering the government to establish a Fact check Unit and unilaterally declare online content related to the government's business on social media platforms as fake, false or misleading.

Calling it a form of "censorship", Justice Patel held that the amendment violated the right to free speech under Article 19(1)(a) of the Constitution.

"What troubles me about the impugned 2023 amendment, and for which I find no plausible defence, is this: the 2023 amendment is not just too close to, but actually takes the form of, censorship of user content."

The court further stated that the amendment made the government the final decision maker of not just what was false of misleading but also of the right to have an opposing point of view.

"By shifting responsibility for user content to the vulnerable segment, viz., the intermediary, the amendment of 2023 effectively allows the government, through its FCU [Fact Check Unit], to be the final arbiter not just of what is or is fake, false or misleading; but, more importantly, of the right to place an opposing point of view."

"There is no material difference between this and the newsprint cases of the 1990s. I should not be misunderstood: this is not a comment on this or that dispensation or the present government. I am only considering the effect of the impugned amendment," the judge observed.

Regarding the FCU's duty being only to identify false content with regard to the “business of the government,” the court said,

"There is no particular reason why information relating to the business of the Central Government should receive 'high value' speech recognition, more deserving of protection with a dedicated cell to identify that which is fake, false or misleading, as opposed to precisely such information about any individual or news agency...all information deserves equal treatment."

It further said, "The assumption that there are absolute truths to even the business of government, even if we knew what that included and what it did not, is unsubstantiated."

The judge held that the argument that the government is 'best placed' to know the 'truth' about its affairs is equally true of every citizen and every entity. “Paradoxically, complaints of a grievous nature (pornography, child abuse, intellectual property violations) can only be taken down only after following a grievance redressal procedure; yet anything relating to the business of the Central Government can be 'identified' as fake, false or misleading by the FCU — and cannot be hosted.”

"The slightest possibility of a fundamental right abridgment cannot be allowed to stand. Every attempt to limit any fundamental right must be demonstrably confined to its permissible limits within Articles 19(2) to 19(6). Everything else is illegitimate," the court asserted.

Justice Patel rejected the government's argument that so far there was no violation or censorship therefore the court shouldn't interfere.

“The entire discussion in Shreya Singhal on 'the chilling effect' militates against an acceptance of any such submission, for the finding of the Supreme Court is clearly towards the anticipated future impact of a rule.”

The court added that the submission was founded on an incorrect theory that government is somehow parens patriae and is duty bound to ensure that citizens receive only information it believes is 'correct information.'

“That the reasonable reader is infantile and cannot decide for herself or himself…This sits at odds with the fact that the biggest megaphone and the loudest voice is that of the government: if there is one entity that does not need such protection, it is the government.”

Justice Patel underscored that the impugned Rule creates substantive law beyond the parent statute. "Nothing in Section 69A or Section 79 permits this targeted unilateralism in relation to digital content," he states. 

Article 19(1)(a) and Article 19(2): The Fundamental Right to Free Speech

Justice Patel said that the government's position that it welcomed debate and dissent, while also arguing that the amendment to the IT Rule restricting speech is necessary, is contradictory.

He added this was not about a particular government but about what the State could permissibly do under the Constitution.

He interpreted the amendment to mean that it requires intermediaries to immediately block content deemed "fake" or "misleading" by the government, without debate or dissent. This contradicted the claim that debate is welcomed.

“Secondly, on my interpretation of the Rule in question — that is to say the requirement that an intermediary must block or take down any content relating to the business of the Central Government that the FCU has (on its own) determined to be fake, false or misleading, or, in default immediately lose safe harbour — for precisely this targeted content there remains no scope for any debate, dissent or satire before the material is excised from the public domain. Pointing to after-the event grievance redressal mechanisms does not fulfil the purpose.”

Thirdly, Article 19(1)(a), the right to free speech and expression, when read with Article 19(2), clearly means that the government has an expansive right to counter any content, but an extremely restricted entitlement to abridge the fundamental right, he added.

Dichotomy Print v/s Online

Justice Patel agreed with the submissions of Advocate Shadan Farsat for the Editors Guild that the rules create inconsistent standards for print vs online content and constrain press freedoms and speech disproportionately for online media.

He had argued that a social media 'user' being only an individual with internet access on some device is far from true. He mentioned how legal news portals like Live Law and Bar and Bench have social media account without print editions. He pointed out how what would appear in print wouldn't fall prey to the Rules, however, online would.

“As I have noted, the entire argument of the Union has more or less proceeded on the basis that all users are individuals. But, as we have seen immediately, that is entirely incorrect. Users are also entities such as news outlets and journals. Not only do they have their own fact-checking systems, but they and their individual writers publish in print and online. The decisive test must surely be that if the material in print cannot be subjected to FCU checking and compelled deletion, there is no reason why, merely because the exact same material also appears online it is susceptible to unilateral determination of fakeness, falsity or being misleading.”

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.

Appearances - Solicitor General Tushar for the Union

Senior Advocate Navroz Seervai. Arvind Datar and Advocate Shadan Farasat and Gautam Bhatia, along with advocates Arti Raghavan, Meenaz Kakalia, Radhika Roy and Aditi Saxena for the petitioners. 

Petitioners - Kunal Kamra, Editors Guild, Association of Indian Magazines, intervenor News Broadcasters and Digital Association

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