Arguments for and against the amendment to the IT Rules

Source: The post the Arguments for and against the amendment to the IT Rules has been created, based on the article “A case of nothing but patent censorship” published in “The Hindu” on 3rd October is 2024.

UPSC Syllabus Topic: GS Paper2- Governance-Important aspects of governance, transparency and accountability

Context: The article discusses a ruling by Justice A.S. Chandurkar of the Bombay High Court, declaring an amendment to the IT Rules unconstitutional. This amendment gave the government excessive control over online information. The court emphasized the importance of free speech and the need for protection against censorship.

For detailed information on Amendment to IT Rules and regulating fake news, read this article here

What did the amendment to the IT Rules propose?

The amendment to the IT Rules proposed the following:

1. Rule 3(1)(b)(v) imposed obligations on intermediaries like social media platforms.
2. The amendment created a Fact Check Unit (FCU) to identify content related to government business as fake, false, or misleading.
3. Intermediaries were required to remove flagged content or risk losing their “safe harbour” protections under Section 79 of the IT Act, 2000.

What were the arguments for and against the amendment to the IT Rules?

1. Arguments for the Rule:
2. Government’s Position: The rule was not coercive. Intermediaries were free to contest the loss of safe harbor in appropriate legal proceedings.
3. No Protection for False Speech: The government argued that there is no constitutional protection against spreading fake or misleading information. They claimed the rule fell within their authority to regulate online expression.
4. Arguments Against the Rule:
5. Excessive Power: Petitioners argued the rule gave the government too much power to determine what is fake or misleading, breaching free speech protections under the Constitution.
6. Lack of Less Intrusive Measures: The petitioners also pointed out that the government ignored the possibility of adopting less restrictive alternatives to combat misinformation.

How did the judges react?

1. Justice G.S. Patel: He found Rule 3(1)(b)(v) unconstitutional, calling it vague, overly broad, and disproportionate to its purpose. He highlighted that the rule created a “chilling effect” on intermediaries, directly affecting citizens’ free speech. Patel emphasized that intermediaries faced a difficult choice—sacrificing user content to avoid losing legal immunity (safe harbour).
2. Justice Neela Gokhale: She disagreed, arguing that the potential loss of a safe harbour for intermediaries did not directly threaten citizens’ freedom of expression.
3. Justice A.S. Chandurkar: He broke the tie, supporting Patel’s view. Chandurkar stressed that the rule would likely pressure intermediaries to comply with government directives, limiting users’ right to free speech, and thereby compromising democratic values.

What does this mean for free speech?

1. The ruling supports the view that the state should not determine the acceptability of speech.
2. It emphasizes that free speech is protected under the Constitution, except for specific restrictions listed in Article 19(2), such as defamation or public order.
3. The government’s attempt to regulate false speech was not supported by any constitutional provision, making the rule an overreach.

Question for practice:

Examine how the amendment to the IT Rules and the creation of the Fact Check Unit could impact the balance between government regulation and free speech protections in India.