The Bombay High Court's verdict last Friday, striking down the central government's amendments to the Information Technology Act, 2021 to establish a 'fact-checking unit', is music to the ears of anyone who wants to see freedom of speech and media freedom preserved in the country. The case had gone to a third judge, Justice Dr. Atul Chandurkar after the division bench of Bombay High Court comprising Justices Gautam Patel and Neela Gokhale delivered a split verdict in the matter in January. In April 2022, the Ministry of Electronics and Information Technology introduced amendments to the provisions of the IT Act, 2021, which included guidelines for intermediary platforms and a digital media code of conduct. Under this, the government will be empowered to set up fact-checking units (FCU) to check content on digital media and ask social media to remove what it finds as 'false, fake or misleading' about the activities of the central government. Media platforms are bound to remove content within 36 hours of receiving such notice. Failure to do so will result in loss of 'safe harbour protection' afforded to them as third parties which indemnifies platforms from responsibility for posts made by subscribers or users.
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The Bombay High Court ruling was given in response to petitions filed by political satirist Kunal Kamra and organizations such as the Editors Guild of India and the Internet Freedom Foundation challenging the validity of the 2023 amendments within a week of its passing. After the plea to stay the amendments was rejected, the Centre constituted a fact-finding committee on March 20. However, the very next day, the Supreme Court intervened in the matter and ordered that the formation of the committee be put on hold until a final decision was taken by the third judge of the Bombay High Court, Justice Atul Chandurkar. The Supreme Court also observed that the petitions involved serious constitutional principles of freedom of speech and expression. While one judge of the division bench held that the amendment amounted to censorship and lacked constitutional grounds for curbing freedom of expression, the other judge upheld the amendment, opining that it aims to prevent the spread of false information about the government and as such that it does not prevent fair criticism. But going by past practice, governments often rely on vague and open-ended language and loopholes to arbitrarily abrogate rights and liberties. And it is the use of such terms that the judges who rejected the amendments have highlighted in their judgements. It has been found as subject to subjective interpretations, limiting the freedom of speech and expression and providing a loophole for restrictions beyond the scope of articles in the Constitution which deal with freedom of expression.
When terms like fake, false and misleading are all vague and overbroad, it is not logical for the state itself to sit in judgement about itself. The judge refused to accept the government's argument that the amendments would not prevent political criticism; Any assurances given by one government are not necessarily honoured by another government. The court responded that the government's argument that those who have complaints against the decision can file an appeal before a constitutional court does not offer sufficient protection. Apart from this, the fact that none of these restrictions on digital media were applicable to print media was also a violation of the right to equality. The adage that delay in dispensation of justice would itself constitute denial of justice applies here as well. If a piece of content is not published at the right time, it will be denied a chance to carry its effect. In fact, petitions challenging the parent law, the IT Act of 2021 on which the 2023 amendments have been made, are pending in the Madras and Delhi High Courts. Meanwhile, the fact-finding committee formed by Tamil Nadu had also also stayed by the Madras High Court pending the Bombay High Court's verdict. While there is every possibility that the Centre go in appeal against the new verdict, the judgments of the Bombay High Court in the mean time come as a silver lining amidst the dark clouds caused by the government's efforts to deny democratic rights.