Introduction
This is the second part of the two-part article series wherein we attempt to make a case for how the amended Rule 3(1)(b)(v) of the Information Technology (Digital Media Ethics Code) Rules, 2021 (“IT Rules”) is ultra vires the Constitution of India whilst critically evaluating Justice Gokhale’s judgment in Kunal Kamra v. Union of India (“Kunal Kamra”) in light thereof. In Kunal Kamra, Justice Neela Gokhale upheld the amended Rule 3(1)(b)(v) while Justice Gautam Patel struck it down.
In the previous part of our discussion, we discussed the changes brought by the amendment and examined their overbroad and arbitrary nature. We continue with this discussion in the second part and test the amendment on the anvil of reasonability and highlight the concomitant chilling effect.
Removal Not Reasonable
The fundamental right of freedom of speech and expression under Article 19(1)(a) of the Indian Constitution can be reasonably restricted only under eight heads of Article 19(2) and such restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency.To contend that these restrictions do not cover information that is fake, false or misleading is erroneous. But to contend that all information that is fake, false or misleading comes within the scope of these restrictions is equally wrong because Article 19(2) does not exclusively enumerate “fake, false or misleading” information as a reasonable restriction
J. Gokhale in her examination of Rule 3(1)(b)(v) under the contours of Article 19, holds that since the Apex Court upheld Section 69A of the Information Technology Act, 2000 (“IT Act”) in Shreya Singhal v. Union of India (“Shreya Singhal”), any rule or regulation derived thereunder, including Rule 3(1)(b)(v), are inherently permissible. She further highlights the narrowly drawn nature of Section 69A, asserting that rule 3(1)(b)(v), aligns with the procedural framework set forth in Section 69A. In this context, it is respectfully submitted that the test of reasonableness has been misapplied insofar as an abstract and general pattern of reasonableness has been used instead testing the reasonableness of the individual rule impugned. Attention is drawn to State of Madras v. V.G. Row (followed in 1, 2 and 3) wherein the Hon’ble Supreme Court, in addition to the preceding proposition, also observed that in testing the reasonableness of a statute, the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. Secondly, it is submitted that Shreya Singhal did not provide a blanket approval to all the rules derived from Section 69A. A delegated legislation if found to be ultra vires of the parent act cannot be given effect. Delegation is only of ancillary or subordinating legislative functions and if a rule supplants any provision for which power has not been conferred, it is invalid. Thirdly, in Shreya Singhal, the Court expressly linked Section 69A with the grounds provided under Article 19(2). The blocking orders were mandated to be recorded in writing and were made assailable under Article 226. However, no such safeguards exist in the amended rule. To the contrary, if a decision of an intermediary is to be disputed via an appeal, the user is first expected to approach a Grievance Appellate Committee. The members of this committee are to be appointed by the Central Government itself and the intermediaries under Rule 3A(7) are expected to comply with every order of this committee. This effectively makes the Central Government the arbiter of truth in its own case. Lastly, it is contended that the amendment must necessarily pass the muster of furthering the social interest as articulated by the Constitution Bench of the Hon’ble Supreme Court in Jyoti Pershad v. Administrator for Union Territory of Delhi and followed subsequently in a catena of judgments (1, 2 and 3).When the legislature enacts a law, the reasonableness of such laws must be evaluated in the context of the issues faced by the legislature. The Courts, while interpreting and assessing the validity of these laws, must consider the social interest that the legislation aims to promote because the courts are not functioning in vacuum but as parts of a society trying to solve its problems and further the moral and material progress of the community. It is argued that the amendment fails to pass this test in light of the discourse so far, including the contentions raised in Part I of this discussion and also insomuch as it introduces a chilling effect on the freedom of speech in the digital space
Chilling Effect
“Chilling Effect” simply means imposition of such a sanction that limits or censors the exercise of the lawful rights owing to the fear of legal backlash. In this context, Chilling Effect occurs when laws do not infringe the constitutional rights of the citizen directly, but consequently as the people opt to self-censor their speech because of the fear of legal consequences that may follow.
Under rule 3(1)(b)(v) once the information is flagged, the intermediary on whose platform such information is present is required to remove such information so as to retain the “safe harbour” protection accorded by section 79(1) of the IT Act. In this regard, the flagging of Information by the FCU merely recommends the removal of information and nowhere in the rules is the intermediary bound to remove such information. It can be said that the Intermediary may refuse to act on such identification and lose the safe harbour protection it enjoys according to a conjoint reading of Section 79(2)(c) of the IT Act and Rule 7 of the IT Rules.
But if seen from a holistic perspective, the “Chilling Effect” is clearly evident. The rules made by the legislative authority make it incumbent upon the intermediaries to prevent and suppress such information that is qualified by the sub-clauses made under Rule 3(1)(b). While some of this information, though violating freedom of speech and expression, is covered under reasonable restrictions provided by Article 19(2) such as information depicting nudity, or child pornography, among others. However, it has been previously discussed, information which is “fake, false or misleading” cannot be wholly covered within the ambit of Article 19(2). Thus, the rules made by the State make it incumbent upon the intermediary to remove information flagged “fake, false or misleading” by the FCU, otherwise the safe harbour protections enjoyed by the intermediaries would be withdrawn. Here, through the agency of intermediary the State is effectuating removal of such “speech” upon which reasonable restrictions are not imposable. The observations made by J. Patel in paragraph 81 of his judgement are germane in this context. He correctly notes that an intermediary, whose business depends on the immunity afforded by the safe harbour, will do anything to retain this safe harbour including “bending the knee” to a government directive regarding the hosted content. An intermediary faces a Hobson’s choice, and it would not risk incurring liability when made to choose between the safe harbour and a user’s rights regarding content. The safe-harbour provision, therefore, functions not only as a shield against liability but also as a safeguard for free speech by preventing the indirect imposition of censorship through the threat of legal action against intermediaries.
Violation of Principles of Natural Justice
Action by the state affecting the rights of the parties has to meet the tests of fairness and be in consonance with the statutory provisions, and in absence of such rules, the exercise of such action shall be just, fair and reasonable.
The transparency and accountability of governmental actions form the tenets of democracy and any communication regarding these actions, be it in the form of reporting, opinion, criticism or analysis; serves public interest and is covered within Article 19(1)(a). The absence not only of a fair procedure, but any procedure which the FCU has to follow while prejudicially affecting this civil right is severely antithetical to the idea of Rule of Law.
The amended rule 3(1)(b)(v) has provided an exemption to the State from following the procedure for removal of information under Rule 3(2). In absence of any procedure to be followed, the fairness in the functioning of the FCU is compromised by the uncertainties surrounding the legality of its actions.
Conclusion
A democratic society is a marketplace of ideas and it is just as important to conserve the authenticity of the ideas, as it is to propagate these ideas. Therefore, the power of any such a regulatory authority must necessarily be rooted in one of the eight sub-heads under Article 19(2) and must squarely pass the muster of the proportionality test. Such a balance is necessary to preserve the democratic fabric of the society.
Further, it is recommended that the impugned provision be drafted in a manner that narrows down its all-encompassing ambit qua the term “information” under the IT Act to objective and verifiable statements of fact that the government intends to assail. Information here should not only be true or false but must also necessarily be one which can be verified as such. A fair and expedient process of appeal should be introduced to provide sufficient safeguards to the exercise of free speech in the online space.
Notwithstanding the legal inconsistencies plaguing the impugned rule, the requirement of a regulatory authority that could tackle spurious expressions is well founded and needs to be upheld in a manner that harmonises its necessity with the rights of the individuals it affects.
The post is written by Anshuman Yadav and Rudransh Bajpai, 4th year B.A. LL.B. (Hons.) Students, University of Law and Legal Studies, GGSIPU