Introduction
The Ministry of Electronics and Information Technology (“Ministry”), in the first week of April 2023, notified the amendments to the Information Technology (Digital Media Ethics Code) Rules, 2021 (“IT rules” or “Rules”) by exercising its powers of delegated legislation provided under section 87(2)(zg) of the Information Technology Act, 2000 (“IT Act”).
One of the amendments included modifications to Rule 3(1)(b)(v), which when read with the amended operating sub-rule (1) of Rule 3, casts a duty upon the Intermediary to proactively remove any information in respect of the Central Government’s business which has been flagged as fake, false or misleading by the Fact Check Unit (“FCU”) as notified by the Central Government vide Gazette Notification dated 20.03.2024. Considering its genesis, nature of functioning, and extent of Government’s control over it, it is safe to conclude that the FCU comes within the ambit of “other authorities” under Article 12 of the Indian Constitution.
Adjudicating on the constitutionality of this amendment, a division bench of the Bombay High Court delivered a split verdict in Kunal Kamra v. Union of India, wherein Justice Neela Gokhale upheld the amended Rule 3(1)(b)(v) while Justice Gautam Patel struck it down. The Hon’ble Supreme Court of India, taking a note of the impasse, termed the issues involved therein as “involving serious constitutional questions” and stayed the operation of the Gazette Notification dated 20.03.2024. In view of the aforementioned state of affairs, this two part-article seeks to discuss how the amended Rule 3(1)(b)(v) is ultra vires to the Constitution of India and critically evaluates Justice Gokhale’s judgment in the light thereof. In the first part, we discuss what has changed after the amendment and examine the overbroad and arbitrary nature of the changes introduced as a consequence thereof.
What has Changed?
According to the press release, the said amendment was introduced to enforce greater due diligence by social media intermediaries in respect of fake or false misleading information related to Government Business. The amended sub-rule mandates the intermediary to independently make a reasonable effort to not host, display, upload, modify, publish, transmit, store, update or share any information which clause (b) of Rule 3(1) accommodates, apart from “causing its users to not” to do the same. This sub-rule has been expanded to include any information in respect of the business of the Central Government that the FCU flags as fake, false and misleading.
A conjoint reading of Rule 3(1)(b)(v) along with the operative part of sub-rule (1) thereof implies that the non-removal of any information identified as fake, false or misleading by the FCU would amount to non-observance of due diligence on the part of the intermediary, resulting in risking their safe-harbour protection under section79(1) of the IT Act.
Manifest Arbitrariness
In absence of any guidelines, it is impossible to ascertain what piece of information is susceptible to be flagged as fake, false or misleading. The susceptibility of a piece of information towards being flagged remains uncertain until the FCU declares its verdict on the same. The IT Act defines information to include –
“… Data, message, text, images, sound, voice, codes, computer programmes, software and data bases or micro film or computer-generated micro fiche.”
Information, in the context of this rule, refers to almost everything a person generally interacts with on the internet. It does not only include news but also opinions, analysis, criticism among other things.
The genesis of our disagreement with J. Gokhale can be traced herein. J. Gokhale conceptualises truth in binary and opines that truthfulness may be relative but true information cannot be false or subjective. For J. Gokhale, true information is purely a matter of fact and the FCU is constituted to deal with information based on fabricated and non-existent facts. This conceptualisation of truth adopts an overly simplistic view of the information posted on the internet, conflating information and truth and overlooking the possibility of vesting the state with the power to be the sole proprietor of truth.
J. Gokhale notes that the terms “fake”, “false” and “misleading” are neither defined in the rules nor the parent act and to cure this lacuna, adopts the dictionary definition of these terms as follows:
fake – something which is non-existent
misleading – to give an incorrect interpretation or delusive
false – something which does not correspond to the truth
Literary definitions of these terms are ambiguous, overreaching and inefficacious in this context. This lack of an objective definition amounts to a lack of standard to evaluate the authenticity of information. Similarly, the phrase “business of the central government” not being defined renders an uncertainly vast area of activities of the central government to be covered within it. The literary definitions of these terms are of a very wide amplitude and defy objectivity, especially when read in conjunction with the technical term “information”. The presumption that an authority will act in accordance with the rules of law can be sustained only if there are rules of law to guide them.
Reliance is placed on Shreya Singhal v. Union of India (“Shreya Singhal”) to highlight the unreasonableness and arbitrariness of the amended rule. In Shreya Singhal, the Hon’ble Supreme Court struck down section 66A of the IT Act on the grounds of it incorporating vague and overbroad terms that did not clearly delineate what communication amounted to an offence and what did not. In the absence of any clear delineation the people were not aware of what they were entitled to express and what they were not, and hence had to live in an environment of self-censorship to prevent themselves from being booked under the penal provision of section 66A. Similarly, the impugned amendment adopts vague grounds of censorship which are characterised by absence of any determinative tests safeguarding the fundamental rights. Therefore, a broad net of censorship rights are being awarded to the Central Government by which it could deem any information to come within the subjective heads of “fake, false and misleading” and hence, have it effectively removed.
J. Gokhale in evaluating the determining yardsticks for the FCU to base their actions on introduces the qualification of knowledge and intent whereby the FCU is expected to act only when the user who shares the information, knows it to be fake, false or misleading and yet communicates it with mala fide intent. As scholars have pointed out, this want of knowledge and intent is in the teeth of the guiding principles of interpretation of statutes. The intention of the legislature is to be gathered from the language used in the statute and a construction which requires for its support the addition or substitution of words has to be avoided as the Courts cannot usurp the legislative function by construing the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision is to be interpreted. A perusal of the disjunctive part of the sub- clause wherein the legislature has expressly provided the want of knowledge and intention by the user fortifies our submission that reading knowledge and intent as a precondition in the instant rule when none has been provided by the legislature is incorrect. This qualification as characterised by J. Gokhale does not have any judicial precedent or basis in law, and is instead based upon the submission and assurance of the Central Government. Normally, the legislature is the best judge of what is good for the community whose collective wisdom it represents, but the ultimate responsibility for determining the validity of the law rests with the Courts and in engaging in such determination, the Courts must conform to the time tested principles of interpretation.
Gokhale, J. also suggests that flagging in itself cannot be termed as a take down mandate and as long as the Intermediaries commit to reasonable efforts, they would enjoy immunity from liability . However, no clarity exists as to what constitutes a reasonable effort herein. In the absence thereof, a wide canvas is left for the Central Government to act upon and an intermediary, as demonstrated in the second part of our discussion, would prefer not tangling itself in litigation and losing its safe harbour as a consequence. Moreover, not all fake information is equal in terms of its potential and actual repercussions. In the absence of a gradation policy guiding the reasonableness corresponding to the information, a system incentivising indiscriminate removal of information can be unearthed.
The only yardstick to verify information is the FCU’s correspondence with the government. The logical corollary of this is – any “information” inconsistent with the version of the Central Government regarding its business could be identified as fake, false or misleading. In absence of any guidelines, there exists no intelligible differentia between “information” which is “fake, false or misleading” and which is not, and the rule includes within its ambit everything covered under the legal definition of “information” which is manifestly unreasonable, arbitrary and has no nexus with the object that the legislative authority seeks to achieve.
Conclusion
In light of the above discussion, the following observations of the Hon’ble Supreme Court in S Rangarajan v. P Jagjivan Ram (“S Rangarajan”) are pertinent:
“…The democracy is a Government by the people via open discussion. The democratic form of government itself demands its citizens an active and intelligent participation in the affairs of the community. The public discussion with people participation is a basic feature and a rational process of democracy which distinguishes it from all other forms of government. The democracy can neither work nor prosper unless people go out to share their views.”
A satirical movie wherein the governmental action is criticized could be flagged due to it technically being a work of fiction that comes within the ambit of “fake, false or misleading” information concerning “governmental business”. The fate of such information rests on the mercy of the subjective and unregulated decision made by FCU. In such circumstances, it would be impossible for the people to know on which side of this vague and overbroad restrictive boundary their expression would lie, thereby leading to self-censorship. For the participation as contemplated by S Rangarajan to occur, it is extremely important for the people to know which expressions are restricted and which are not. These restrictions further have to be tested on the anvil of reasonableness under Article 19(2) which, as we discuss in the next part of our discussion, the impugned amendment does not.