The Bombay High Court on Thursday said that no matter how laudable or high the motives are while framing the new Information Technology (IT) Rules, if the effect of a rule or law is unconstitutional then it must go.
A division bench of justices Gautam Patel and Neela Gokhale was hearing a bunch of petitions filed by political satirist Kunal Kamra, the Editors Guild of India and the Association of Indian Magazine and regional channels challenging the constitutional validity of the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023. The new Rules require social media intermediaries to censor or otherwise modify content that relates to the Central government if a government-mandated fact checking unit (FCU) directs them to do so.
On April 21, the Ministry of Electronics and Information Technology had said it will not notify the FCU till July 10. On Thursday, senior advocate Navroz Seervai appearing for Mr Kamra said, “The government is essentially saying it is my way or the highway. The government is saying that it will ensure that social media covers only what the government wants and what it (government) terms as the truth and ensure that everything else is censured,”
He said all citizens have the right to freedom of speech and expression and the Rules are discriminatory in nature and violate fundamental rights. The court then said, “No matter how laudable or high the motives are, if the effect is unconstitutional then it has to go.”
The bench noted, “When the intermediaries are not concerned with the content then they would just comply with the direction from the government. This is why no intermediary company has filed a petition against the Rules.”
The court said, “As we are approaching 2024, people will say things in campaign trail. Suppose an online person questions the statements made in campaign trail by political spokesperson, calls it out and if FCU says remove it, how can it do that? Is that the business of the government? Let’s say online magazine calls out political entity, the FCU does nothing. But if there is direction of government to take it down, then you lose safe harbour. Can a site hosting this lose safe harbour if the govt’s FCU flags it as false, and they refuse to remove it?”
The hearing will continue July 8.
