Usi ka shahar, wahi muddai, wahi munsif, hamen yakeen tha hamara kusur niklega (your city, you are complainant, you are judge, I was confident that I will be declared guilty). These lines of Urdu poet Ameer Qazalbash explain the essence of recent IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 which empower the Union government to decide unilaterally what is fake, false or misleading news, and take action against alternative media engaged in criticisms of governmental policies.

Governmental influence on mainstream media is perceived as a significant factor in the rise of alternative media in various forms including independent websites, blogs, social media accounts, podcasts, and other forms of digital media. When governments or powerful entities exercise control over what information is disseminated through mainstream media channels, it leads to a lack of diversity in viewpoints and a narrowing of the range of opinions represented. This can create a vacuum that alternative media outlets may seek to fill, providing alternative viewpoints and coverage that may be overlooked or deliberately suppressed by mainstream media.

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It is pertinent to note that not all alternative media sources are created equal, and many may not adhere to the same journalistic standards and practices as mainstream media outlets. Additionally, alternative media can also be susceptible to bias, propaganda, and misinformation, and readers should exercise critical thinking skills and fact-checking when consuming news and information from any source. But the question which entails probe is whether restrictions can be imposed on alternative media on the ambiguous grounds of ‘fake’, ‘false’ or ‘misinformation’, which are not mentioned as grounds in Article 19(2) of the Constitution.

The recent amendment has incorporated a provision of a factcheck unit to identify fake, false or misleading online content related to government. Against such content identified by this unit, intermediaries, such as social media companies or net service providers will have to take action or risk losing their safe harbour protection under section 79 of the IT Act which allows intermediaries to avoid liabilities for what third parties post on their website.

Further, the amended rules could bypass the procedural requirement to issue take down orders as provided under section 69A of the IT Act. The Rules also go against the spirit of the verdict of the Supreme Court in Shreya Singhal vs. Union of India (2015), which explicated clear guidelines for blocking content. The Court in this case also reiterated that any restrictions on media freedom must be strictly based on the grounds mentioned in Article 19(2) of the constitution.

Certainly, we need a mechanism to check “false news,” “fake news” or “misleading news” but the question here is can the Union government alone be an arbiter on fact checks? The apprehension is greater because most of these alternative media portals have evolved to voice different opinions rather than articulating only popular opinions of the mainstream media. These media groups are critical to the policies of the government and many are already besieged by governmental process. Takedown notices have been issued by the government for critical opinion or commentary on social media platforms, with several having to comply with them and only a few such as Twitter contesting them in courts. Therefore, empowering the government exclusively to decide whether news is fake, false or misleading without any judicial oversight or right to appeal appears to be problematic. The government can’t make “the government” prosecutor, judge and executor all at the same time. This will corrode the very essence of the principle of natural justice i. e. nemo judex in sua causa (no one can be judge in his own cause).

A constant threat to lose safe harbour immunity will necessarily have a chilling effect on the freedom of speech and expression, a right that is put on an unassailable foothold than other freedoms guaranteed in the same Article. Article 19 did not expressly provide for freedom of media but in a series of leading cases viz. Sakal Papers Ltd. v Union of India, Bennett Coleman and Co. v. Union of India and Express Newspapers (Bombay) (P) Ltd. v. Union of India, the Supreme Court while recognizing the importance of the press held that freedom of the press is the integral part of Article 19(1)(a).

The court has held that “In today’s free world freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and informal education possible on a large scale particularly in the developing world.”

Shreya Singhal v. Union of India, which quashed section 66A of the Information Technology Act, 2000 declaring it unconstitutional was another delightful affirmation of the value of free speech and expression. In the opinion of the court, Section 66A was vague, incapable of precise definition and hence was also against the basic tenets of criminal law. The expressions “grossly, offensive, or menacing” used in the section are too vague and hence there is no manageable standard by which a person can be said to have committed an offence.

The most recent is the verdict delivered by Chief Justice of India Justice D Y Chandrachud wherein the apex court gave a decisive blow to the government in favour of free speech and media freedom. While declaring that critical views on government policy cannot be construed as anti-establishment, the bench led by the CJI struck down the Centre’s order revoking the licence of the Malayalam news channel Media One. The legality of IT Amendment Rules 2023 is already challenged before the Bombay High Court. This is perhaps the first time a court will be dealing with a legal question where online speech is being restricted by the government by directing intermediaries to take due diligence and moderating online content as per government’s version of the truth. All eyes are once again on the judiciary to save one of the darling articles of the Constitution i. e. Article 19(1)(a).

(The writer is Professor of Law and ViceChancellor, NLU Tripura. The views expressed are personal.)