In the 1800s, while India was still reeling under the control of its colonial masters, the line between executive and judicial responsibilities was frequently a blur.
In the words of RK Sidhwa, a member of the Constituent Assembly, the district magistrate was "the prosecutor and...also the administrator of justice."
Naturally this paved way for concerns about the administration of justice, and as pointed out by Dr Bakshi Tek Chand, during a constituent assembly debate: “in the early (eighteen) seventies, in Bengal…definite proposals with regard to the separation of judicial and executive functions were put forward."
The rest as they say is (a long, meandering and turbulent) history.
In today’s India, the judiciary is separate from the legislature and the executive. The Indian democracy, fortified by separation of powers and staunch adherence to principles of natural justice, disallows anybody from being a judge in their own cause.
Thus, you cannot be the aggrieved party, the prosecutor and the arbitrator all at once. And it makes sense, because a conflict of interest can easily obfuscate impartial vision.
Which is why, it is baffling, when the government of India comes forth with a decision that literally allows it to adjudge content about itself, dub it fake news and restrict its flow — with legal ramifications for any intermediary that may hinder such restrictions.
On 6 April 2023, the Government of India notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Amendment Rules, 2023), and authorised a “fact check unit of the central government (itself!)” to identify, “fake or false or misleading” information in respect of, “any business of (once again) the central government”.
As pointed out by the Internet Freedom Foundation (IFF):
"In an event where any intermediaries, including social media intermediaries (Facebook, Twitter etc.), Internet Service Providers (ISPs) (Airtel, ACT, Jio etc.), other service providers, fail to/decide against taking action on content identified as “fake” or “false” by the notified fact-check unit, they will risk losing their safe harbour protections."
The safe harbour protection keeps an intermediary from being held liable for any third-party content.
Various experts, however, have questioned this notification. Their reasons for concern include:
As discussed above, impartiality, on all levels, is a crucial principle of natural justice.
In the MediaOne case, the Supreme Court recently set aside government orders refusing to renew broadcast license to the Malayalam news channel on 'national secutity' grounds and said:
"...the core of the principles of natural justice breathes reasonableness into procedure”.
In context of these new IT rules, the IFF wrote in a statement:
"Assigning any unit of the government such arbitrary, overboard powers to determine the authenticity of online content bypasses the principles of natural justice, thus making it an unconstitutional exercise."
What is 'Fake, False or Misleading'?
"The IT Rules, 2023 do not define what constitutes “fake or false or misleading” information, nor do they specify the qualifications or hearing processes for a “fact check unit," Apar Gupta, non-executive director of the IFF, wrote in an article for The Indian Express.
Besides, vagueness of language can often pave way for limitlessness. Even if the intent is to check 'fake-news' in a reasonable and controlled manner, open-ended terms can be construed by various stake-holders in a variety of ways. Former US President Donald Trump is remembered (not so fondly by some) for describing unsympathetic reportage as 'fake news'.
And my 'misleading' may not necessarily be yours.
IFF's policy director Prateek Waghre, also lamented the absence of checks and balances, and wrote in a piece for TOI that some of the instructions to the intermediaries, such as "make reasonable efforts" further "add to the confusion and hand over more discretion to the executive."
Also How Was this Amendment Brought On?
It is not true at all that the intermediaries have so far had a free run. In fact, as pointed out by Waghre:
"Until October 2022, internet services or intermediaries were obliged to inform their users not to host, store or share certain kinds of information…Amendments made in October, required intermediaries to seek out certain kinds of content proactively, marking a significant shift for intermediary liability."
Last week’s amendments, he added, go further still.
And this happened "even though such an extension of powers cannot be enacted through subordinate legislation," Waghre said.
The ministry derives its subordinate rule-making power from Section 79 of the IT Act, Gupta explained. "This power is meant to fill in details within the legislative intent and directions of the Supreme Court."
The landmark Shreya Singhal judgment, by which the apex court struck down Section 66A, also observed that "an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) (of the Constitution)" should immediately hinder access to such contentious material.
However, as reiterated by Gupta, this in relation to reasonable restrictions under Article 19(2), and "Article 19(2) does not contain the phrases “fake or false or misleading”. He also noted that "not all classes of “fake or false or misleading” fit within reasonable restrictions".
Besides, the ministry in it's own press release said that "it is to be noted that the existing IT rules already required the intermediaries to make reasonable efforts to not host, publish or share any information which is patently false and untrue or misleading in nature."
So why the pressing need to add rules on rules on rules like layers of icing on a multi-storied cake? Like little match-box apartments in a high-rise building?
And isn't all fake news equally detrimental to the well-being of the society? We don't need more restrictions, of course, but one might wonder: why these special curbs for the things that people may say about government activities alone?
What Good is Freedom of Expression If...?
And yes, no-matter how fact-based or imagined, warranted or unwarranted it may be, why does the government get greater insulation from criticism than the average citizen does?
The people of the country have constitutionally been granted the right to scrutinise the activities of the government, debate, discuss, disagree and decide for themselves if a certain model of governance is working for them or not.
In deciding what is misleading and what isn't, doesn't the State run the risk of stripping a citizen of his agency to conclude for himself?
What good is the press if what trickles down to the public is what the government wants them to hear anyway? What good are elections if their results don't emanate from a robust democratic discourse? What good is freedom of expression when it is riddled with obstructions?
In Srishti School Of Art vs CBFC, the Delhi High Court had (as noted by Ashwin Vardarajan in an article for Advocate Gautam Bhatia’s blog) observed:
"This right of the viewer to think autonomously while reacting to the speaker or the film maker, and to make informed choices, without being controlled by the State, also constitutes an integral part of the freedom of speech and expression.”
In the MediaOne case, the apex court too had said:
"A homogenised view on issues that range from socio-economic polity to political ideologies would pose grave dangers to democracy."
Fake news is indeed a menace. But let homogenisation of views not be a consequence of attempts to check it. After all, in the words of present Chief Justice of India DY Chandrachud: "Dissent is the safety valve of democracy."
So What Now?
For the moment, we do not know what the composition of this 'fact check unit' set up by the government would be.
"...we have yet to take a decision on whether it will be a new organisation that has trust and credibility associated with it, or do we take an old organisation and repurpose it to build trust and credibility in terms of a fact-checking mission," Union Minister Rajeev Chandrashekhar was quoted by ANI as saying.
And trust and credibility, of course, are welcome objectives.
But given as we already have social media users being blocked out for their tweets; journalists in jail for their reportage; MPs disqualified after criminal defamation conviction over electoral banter...Do we really need more rules and restrictions?
"The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved."Supreme Court in Sakal Papers (P) Ltd. & Ors. v. Union of India