INSUBCONTINENT EXCLUSIVE:
MUMBAI: The Bombay HC has ruled that if the effect of a rule or law is unconstitutional, it has to go
Senior counsel Navroz Seervai appearing for stand-up comedian Kunal Kamra had made daylong submissions to argue that the rule for setting up
fact check units (FCUs) is "insidious" and would have a chilling effect on free speech at a time when social media is all pervasive.Seervai,
citing judgments of the Supreme Court and US Judges, said, "it is not open for the Centre to say the challenge raised (to FCU) is
premature...it is a loss of statutory safe harbour-available worldwide-for intermediaries and a takedown (of content) is inevitable." The
amendment by the Centre is as if "Rome has spoken..
There is to be no debate on it," said Seervai
He argued that the rule denies safe harbour to social media platforms and other digital intermediaries unless they play ball with the
He added, "Whichever government."It "strikes at the heart of the use of internet for purpose of social media," said Seervai
My way or the highway." He said, "False speech is as much speech as truthful speech and is protected and any attack on that is ultra vires
of constitutional mandate.'' The intermediaries, essentially commercial organisations, are "least concerned beyond a point of what they
host." "It is in their interest not to cross swords with the government" and may end up doing self-censorship, he added.The HC noted that no
petitions were filed by intermediaries
It stands out that neither have they bothered or dared to file a petition," said Seervai
He said the rule would fall foul of Article 14 for discrimination, and on principles of natural justice it seeks to make the government a
"judge in its own cause"; he said the Centre is silent on this aspect in its reply
Justice Patel orally said, "This (such rule) would not have been necessary in days of print." He added, "The government cannot do without
It is the way they transact business," and added, "it is truly the fear of the unknown."Kamra was the first to challenge the amendment made
to Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, amended this April, under the IT
Act.Later two more challenges were filed by the Editors' Guild of India and Association of Indian Magazines and an intervention plea was
filed by the New Broadcast and Digital Association representing 27 television channels who concurred with Kamra that the rule violates
constitutional principles and fundamental rights
Senior counsel Arvind Datar for the channels said in the absence of defining what is false, fake or misleading, the law has to be struck
down as 'free speech' is so wide it can't be taken away by Parliament
"There would need to be a Constitutional amendment" for such a curb, he said.Seervai said the government is not intended to a cover under
Article 19 (2) (reasonable restrictions on free speech) for curtailing rights of citizens under Article 19 (1)
Earlier, Justice Patel said, "let's take a hypothetical or maybe not so hypothetical situation
We are soon going to enter 2004 and we will see campaigns and rallies
Suppose an online person questions the statements made in such a rally; is it the business of the government to look into it and say it is
wrong?"The hearing went on all day and is to continue on Friday
At the end of long submissions, Justice Patel said to Seervai, "The chilling effect that you speak of and I am not talking about the AC in
my courtroom, is that of self-censorship
If they are able to justify the amendment, then we will see
If not then we will see that too.''
