In February 2021, the Ministry of Information and Broadcasting [MIB] proposed amendments to the Information Technology [IT] Act 2000 to enhance regulation on online content through Intermediary Guidelines and Digital Media Ethics Code Rules 2021. In addition, to establish a fact check unit [FCU] to deal with fake, false, or misleading online content related to the government that is “unlawful” or “harmful.”
In other words, the government wanted to retain sweeping powers to monitor, scan and censor online content related to the government as ‘fake’–‘misleading’ or ‘unlawful’—’harmful’, without defining what constitutes fake, misleading, unlawful and harmful. Essentially, it wanted to retain control over the social media platforms.
Comedy as resistance
Governments do get uncomfortable when they get to taste unpalatable posts, satire, criticism and memes on online platforms, failing to remember the fact that the Constitution guarantees free speech. As world renowned actor and comedian Charlie Chaplin said, “Dictators free themselves, but they enslave the people”. The essence of his statement is that comedy and satire has been a tool to expose flaws in the political system, point out hypocrisy and hold those in power accountable, often through insightful observations.
Kunal Kamra’s legal challenge
Agitated over the new IT Rules and Constitution of FCU, “entertainer and recreation” satirist, and content creator, Kunal Kamra approached the Mumbai High court challenging new provisions in IT rules 2021 and subsequent amendments.
Kamra, in his petition argued that the provisions related to digital and social media regulation “could be used to stifle and silent criticism of the government.”
As the new IT rules 2021 proposed, “Access control mechanism” and “access services,”. These rules mandated online content publishers to adhere to stringent content regulation guidelines, including provisions for removing content that deemed offensive are against “public interest.’
Kamra went on to argue in his petition that such rules are vague and “could lead to a chilling effect on free speech.” In other words he had seen this as a violation of the right to free expression as guaranteed by the Constitution of India both in 19(1)(a) & 19(1)(g), Art 21 (Right to Privacy) and Article 14(Right to Equality)
Media organisations join the fight
The Editors Guild of India, New Broadcast and Digital Association and Association of Indian Magazines have filed similar petitions in the matter.
The petitioners argued that the FCU “could suppress free speech and lead to arbitrary censorship.”
A close look at the definition of the amended rules clearly gives an impression that the government is seeking powers to restrict content unsavoury to them, thereby infringing on the right to freedom of expression. Question is why should the government don the role of Fact Checking? Is it not the responsibility of every individual responsible citizen in civil society to highlight the lacunae in governance? Then there are fact-checkers too. If one set of fact checkers go wrong, the others step in to correct them. But when the government itself wants to take up the role of Fact Checkers, who are going to fact check the fact checkers?
The government in its Affidavit to the Mumbai High Court had said that the FCU unit “may only identify fake, false or misleading information and not any opinion, satire or artistic impression. Therefore, the aim of the government with regard to the introduction of the impugned provision is explicitly clear and suffers from no purported arbitrariness or unreasonableness as alleged by the petitioner (Kamra),” the affidavit said.
Split verdict
Finally, the arguments in the case ended up on a split verdict. It was a twin member bench headed by Justice Gautam Patel and Justice Neela Gokhale of Mumbai High Court. Justice Gautam Patel had ruled in favour of the petitioners- political and satirist Kunal Kamra, Association of Indian Magazines, News Broadcasters of Digital Association & Editors Guild of India. And Justice Neela Gokhale upheld the legislation. It was a 1:1 verdict. The petitioners were confused, what next?
In such a situation, as per the norms of Mumbai High Court, the issue has to be placed before a third judge. This is a common procedure when there is a divergence of opinion between the judges on a division bench. The Chief Justice of Mumbai High Court as per the laid down provisions appointed a third judge to resolve the matter.
Meanwhile, Solicitor General Tushar Mehta has assured the Court that the FCU will not be notified for another 10 days as per the ruling of Justice Gautam Patel. The Court has further granted liberty in seeking any further extension of the protection on the principle that prima facie the amended Rules lacked safeguards to protect satire.
While this is so, the tie-breaker judge appointed by the Chief Justice of Mumbai High court, Justice Atul Chandurkar stuck down the Amendments to IT Rules for establishing the FCU ‘Unconstitutional’
In his orders, Justice Atul Chandurkar orders “I am of the opinion that the amendments are violative of Article 14 and Article 19 of the Constitution of India.” “I have considered the matter extensively. The impugned rules are violative of Articles 14 (right to equality), 19 (freedom of speech and expression) and 19(1)(g) (freedom and right to profession) of the Constitution of India.”
Essential role of free speech in a democracy
It is an indisputable fact that in a democracy elected representatives and government are accountable for their policies and actions. Then why is the government so paranoid of criticism intended against them by civil society? Time immemorial people have always provided feedback to the government with available checks and balances guaranteed to them by the constitution.
If the rights of the people are stifled, who else will highlight the mistakes of the government for course correction. For a healthier democracy, criticism always serves as a form of feedback and prevents authoritarianism.
Strengthening democracy through debate
As Mahatma Gandhi said, “Honest disagreement is often a good sign of progress”. This only reflects the importance of criticism and debate in improving governance and society.
The writer is a senior journalist and former Director General of All India Radio and Doordarshan.
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