Mumbai: Comedian Kunal Kamra has termed the central government’s recent amendments to the Information Technology rules as “obstructing natural justice, contradicting the right to freedom of speech and expression”, and possibly “compelling political satirists to self-censor fearing action”, in his petition to the Bombay High Court challenging the changes.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, notified on 6 April, restrain social media “intermediaries” from publishing content about the government which its own fact-check unit has identified as fake. The government is in the process of setting up such a unit to flag false or misleading information.
The Bombay High Court Tuesday asked the Ministry of Electronics and Information Technology (MeitY) to respond to Kamra’s petition.
The petition states that as a political satirist, Kamra relies on social media platforms to share his content and the new rules can potentially lead to content posted by him to be arbitrarily blocked, taken down, or his social media accounts suspended or deactivated, harming him professionally.
ThePrint has a copy of the petition, which was filed through senior advocate Navroz Seervai, advocates Meenaz Kakalia and Arti Raghavan, and the Delhi-based Internet Freedom Foundation, an NGO that works on issues such as censorship, free expression, and online privacy.
“The impugned rules require social media intermediaries to censor or otherwise modify content that relates to the central government, if a government-mandated fact-checking body directs them to do so. It is submitted that the impugned rules are manifestly arbitrary, as they entail the central government acting as a judge and prosecutor in its own cause…” the petition says.
The amendments notified last week, which several Opposition leaders have slammed as “draconian,” make it obligatory for “intermediaries” to not publish or share any “false information” about “any business of the central government”.
The ministry had released a proposed draft of the amended rules for suggestions and objections from the public on 17 January. Kamra has, however, alleged that the ministry proceeded to notify the final rules with only minor and inconsequential changes.
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‘Infringe on freedom of speech and expression’
Kamra has argued that the amended rules infringe on the right to freedom of speech and expression.
In his petition, he cites how previous restrictions on the right to freedom of speech and expression have been held to be unconstitutional “on grounds of over-breadth and vagueness” and says the phrase “in respect of any business of the central government” in the amended IT rules is “over broad and vague”.
The rules, Kamra contends, make the central government “the sole arbitrator of truth and obliges private parties to impose its version of truth on all users”.
He argues that the amended rules do not even fall under Article 19(2) of the Constitution which outlines “reasonable restrictions” on freedom of speech and expression, as they fail “the test of proportionality”.
“The third limb of the proportionality standard requires that the least restrictive alternative be chosen. There are a range of less restrictive alternatives — such as, for example, government-issued clarifications or corrections with respect to information the government believes is incorrect with ‘respect to its business’…,” Kamra’s petition states.
‘Class legislation, against principle of natural justice’
Kamra further states that, with the new rules, political satirists like himself will be compelled to either self-censor or restrict their engagement with political commentary, fearing action.
The petition points out how the amended IT rules can lead to gross abuse, as material critical of the government will be particularly vulnerable to be flagged as false by the government’s own fact-checker.
The new rules, he says, are akin to a “class legislation” as they grant only the central government the power to have private entities censor or modify content.
“Neither other governments, nor importantly, individuals, are granted this right. It is respectfully submitted that this is the very definition of class legislation — with the central government constituting the privileged class — which Article 14 (right to equality) is bound to prohibit,” Kamra argues in his petition.
The rules also contradict the principle of natural justice, Kamra contends, as they do not offer the user any opportunity to be heard before making a decision about certain content being fake, false or misleading.
(Edited by Nida Fatima Siddiqui)