Amended IT rules follow ‘Rome has spoken’ diktat: Kamra to HC

Kamra’s counsel claimed that the amendment enables the Central government to constitute a fact checking unit (FCU) to identify fake or misleading news on social media platforms and direct intermediaries such as Facebook and Twitter to take down such content failing which they will lose the “safe harbour” (legal safety) for third party content

MUMBAI: If the effect of a rule, or law is unconstitutional “then it has to go” regardless of “how laudable or high the motives are”, the Bombay high court said on Thursday while hearing a petition filed by satirist Kunal Kamra challenging the amended Information Technology (IT) Rules.

“They are following the diktat ‘Rome has spoken’ which implies that whatever the government speaks is final and no one has the right to express their views,” Seervai said, adding the government is underestimating the intellect of the citizens under the garb of safeguarding them. (HT PHOTO)

Kamra’s counsel claimed that the amendment enables the Central government to constitute a fact checking unit (FCU) to identify fake or misleading news on social media platforms and direct intermediaries such as Facebook and Twitter to take down such content failing which they will lose the “safe harbour” (legal safety) for third party content.

Senior advocate Navroz Seervai, representing Kamra, said the “market of free thought” would be under threat as the amended rules followed the diktat “Rome has spoken” through which the Centre could curtail the citizens’ right to freedom of speech.

“They are following the diktat ‘Rome has spoken’ which implies that whatever the government speaks is final and no one has the right to express their views,” Seervai said, adding the government is underestimating the intellect of the citizens under the garb of safeguarding them.

In legal parlance, parens patriae means an authority who is regarded as the legal protector of citizens unable to protect themselves.

A division bench of justice Gautam Patel and Neela Gokhale on Thursday commenced hearing on the petitions filed by Kamra, Editors Guild of India, Association of Indian Magazines, and News Broadcast and Digital Association. Seervai informed the court that counsels for the petitioners would address the court on six issues, distributed amongst them to avoid repetition.

Kamra’s counsel further said that the Centre is trying to act as a nanny, or parents by deciding what content they (people) should access. “It’s like saying my way or the highway.”

The bench then said, “No matter how laudable or high the motives are, if the effect is unconstitutional then it has to go.”

The HC also questioned the need for amending the rules and whether the Press Information Bureau had become ineffective to oversee dissemination of information to the citizens.

The Centre’s affidavit in response to the petition had not thrown any light on this aspect, it said.

“This is actually the case because you do not understand the extent of the realm, reach and power of technology. This would not have been necessary in case of print. You just do not understand what the internet can do. Governments cannot do away with the internet as that is where they carry out their business. But it comes with its limitations. This is more like the fear of the unknown. And this is why the government has come up with this (FCU). Whether it is legitimate or not is what we have to decide,” the bench said.

The Centre in its affidavit had said that identification of misleading or false content by FCU, which would be under the ministry of electronics and information technology, would not lead to automatic deletion of such content and the complainant could pursue legal remedy and the competent court would be the final arbiter in the matter.

Hearing on the petition will continue on Friday.

Kamra has challenged Rule 3(1)(II)(A) and (C) of the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, stating that this would, in effect, amend Rules 3(1)(a) and 3(1)(b)(v) of the IT Rules, 2021, and was in violation of not only Supreme Court judgments but was also contrary to the accepted norms by foreign courts with regards to freedom of speech.