The Bombay High Court stated that the petition filed to challenge the recent amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021) by stand up comic Kunal Kamra is maintainable.
A division bench comprising of Justice GS Patel and Justice Neela Gokhale that the locus of the petitioner would not be examined as the challenge is based on freedom of speech and expression under Article 19(1)(a).
The bench by Justice Patel in response to the argument by the Central government challenging Kamra’s locus said that we are not interested in challenge to locus. The bench said that in any Article 19 case, locus in immaterial; we are not going to shoot the messenger.
Pertinently, the Court expressed a prima facie opinion that the rules don’t seem to offer protection to fair criticism of the government like parody and satire.
The Court also said that the argument that the challenge is pre-mature is also incorrect.
The Central government had said that the notification has not been published yet.
Additional Solicitor General Anil Singh said that the notification has not been notified. Once it is done, they can move at any time. They can move at any time, even during vacation.
“The question being premature is also wrong, because the rules have been notified,”
The case was then listed for consideration on April 27 at 10 am.
The amendments, specifically to Rule 3, provides that the Central government ‘s Ministry of Electronics and Information Technology can notify a fact-checking body which is empowered to identify and tag what it considers false or fake online news with respect to any activity of the Central government.
The telecom service providers and social media intermediaries will then have to take action against such content failing which they would lose the safe harbour protection under Section 79 of the Information Technology Act.
Kamra moved the Court challenging the revised Rule 3(1)(b)(v). He sought a declaration that rule 3(i)(II)(A), (C) to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 is ultra vires section 79 of the Information Technology Act and Article 14 and 19(1)(a), (g) of the Constitution.
The affidavit filed through the Ministry of Electronics and Information Technology (MeitY) stated that false information also has the impact of weakening public’s trust in democratic institutions creating doubts on the intentions of the elected government.
False and misleading information can adversely impact electoral democracy, the Central government stated in its affidavit opposing the petition.
Senior Advocates Navroz Seervai and Darius Khambata with Advocate Aarti Raghavan appeared for Kamra.
Seervai submitted that the affidavit had failed to respond to the “overwhelming questions” raised by Kamra in his petition.
Seervai said that they are saying that the government action cannot be scrutinised. Can they say that in a democracry? People in this country are scared, when they shouldn’t be in a rule of law”
He also added that if the Union government was not willing to make a statement that the rules will not be notified till a set period, then the court ought to intervene and stay the implementation, till the petition is finally heard.
Additional Solicitor General Anil Singh and Advocates Aditya Thakker and DP Singh appeared for the Union government.
Singh argued that the rules were yet to be notified hence there was no urgency for either hearing on the petition or staying the rule. He added that once the rule is notified, the petitioner could always approach the Court.
The Court however decided to hear the petition in this week on the limited question of whether the rules ought to be stayed or not.
“The order will be extremely time limited and interim. Even if we are inclined to accept the arguments of Mr. Seervai, there will not be an open ended stay. It will be time bound with an end date”, the Court declared.