SUMMARY
— The HC has asked the Centre to file an affidavit on why the new IT Amendment Rules, 2023, should not be stayed
Arguing for Kamra, advocate Seervai said that the new norms violate the Right to Free Speech and are against the interest of the public
While the Centre has been directed to file the affidavit by April 19, the Bombay High Court will next hear the matter on April 21
Entertaining the first major lawsuit against the recent IT Rules amendments, the Bombay High Court (HC) on Tuesday (April 11) directed the Union government to file an affidavit, within a week, on the plea challenging norms that empower the Centre to flag ‘fake news’ concerning government bodies.
While hearing the petition filed by comedian Kunal Kamra, a bench comprising Justice Gautam Patel and Justice Neela Gokhale sought the Union government’s response on the ‘factual background’ that paved the way for the recent amendments. The HC also asked the Centre to clear the air around why the new IT Amendment Rules, 2023, should not be stayed.
The court has listed the matter for the next hearing on April 21.
“A limited affidavit in reply for the purposes of opposing admission and interim/ad-interim relief is to be filed by the evening of 19th April 2023… List the matter on 21st April 2023, high on board along with all other matters,” the HC said in its order.
Arguing for Kamra, advocate Navroz Seervai sought a stay on the amendments, citing violation of Articles 14 and 19 of the Indian Constitution.
“These rules are there, the chilling effect is already there. The rule is enough to chill people. After the publication of this notification, I am liable to (the) fact-checking committee. I will not have say when it is retrospectively applied,” Seervai was quoted as saying by Bar and Bench.
While referring to the Shreya Singhal case and half a dozen more Supreme Court judgements, Seervai said that the new norms violate the Right to Free Speech and are against the interest of the public. He further contended that the government cannot be allowed to be an arbiter of fake news involving state bodies as the same would be tantamount to being a judge in its own cause.
“This identification cannot be by the government itself. There cannot be a restriction(s) on Article 19 at all. The rules do not come within reasonable restrictions. Reasonable runs through it. This is against (the) interest of (the) public, this is neither reasonable. Look at the natural justice angle, there is no show cause, no notice,” Seervai argued.
The senior advocate also highlighted that many social media platforms already have safeguards in place to deal with fake news, adding that the new amendments could directly impact people who have careers on social media platforms.
In response, Additional Solicitor General Anil Singh sought additional time to file a reply. Arguing for the government, Singh said that the amendments are yet to come into force and as such there was no urgency for an interim order in the matter.
Reacting to the case, the digital advocacy group Internet Freedom Foundation (IFF) said that the new norms threaten the freedom of Press and will increase censorship in India.
“… MeitY has now amended IT Rules, 2021, and provided itself even broader powers of censorship of any content that it deems fake, false or misleading. Such a degree of regulation is highly susceptible to abuse and will strongly threaten Press freedom by increasing censorship in India,” IFF said in a statement.
It is pertinent to note that IFF is also providing legal support to Kamra in the case.
Last week, the Editors Guild of India also panned the new rules terming them draconian and claimed that it could have adverse impact on the freedom of Press in India.
Legal Challenge Against Amendments
The developments came to pass a day after Kamra approached the Bombay HC with his plea seeking an urgent listing of the matter. Consequently, the request was accepted and the matter was heard on Tuesday.
Kamra’s plea challenges Rules 3(1)(A) and 3 (B)(V)(C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023. The plea claimed that the new amendments struck at the country’s rule of law and constituted a direct assault on freedom of thought, speech and expression.
“The amended Rules are manifestly arbitrary, as they entail the central government acting as a judge and prosecutor in its cause, thus violating one of the most fundamental principles of natural justice. Furthermore, they are over-board, vague and constitute restrictions to freedom of speech and expression,” the plea added.
At the centre of the debate are recently notified IT amendments, which cover a gamut of areas and empower the Centre to identify fake news related to government bodies. However, according to IFF, the newly notified rules do not define the phrases ‘any business of the Central Government’ and ‘fake or false or misleading’ which has led to the current legal tussle.
Calling the new norms vague, the digital advocacy group has said that the rules could lead to intermediaries proactively processing takedown requests to safeguard their safe harbour protections.
IFF also said that the new rules would subject the petitioner, Kunal Kamra, to a ‘capricious and biassed ‘fact check’ by a unit chosen by the Central government’ and would purportedly curtail his capacity to partake in political satire.
“If the IT Amendment Rules, 2023, were applied to the creations of political satirists and comedians, their social media accounts might be deactivated or suspended, which would unjustly restrict their right to exercise their profession or trade,” IFF said.
With the matter now listed for hearing on April 21, it remains to be seen which way the Court decides and whether it would bode well for the Union government. Any win here could open floodgates of litigation for other similar digital legislations that the government has undertaken in the past year.
