In the pleas challenging the IT Rules amendment, the centre defended its fact-check unit and told the Bombay High Court that not preventing fake or false news would violate the fundamental rights conferred by Article 19(1)(a) of the constitution, Livelaw reported.

The HC on Monday began hearing arguments in the petitions against the amendment filed by comedian Kunal Kamra, the Editors Guild of India, the Association of Indian Magazines, and the News Broadcast and Digital Association.  

Solicitor General Tushar Mehta emphasised that the government’s fact-check unit identifies content as fake but did not remove it. He said the right to know and the right to not be misled are equally important as the right to freedom of speech and expression.

Notably, the fact-check unit allows the government to identify “fake news” about itself on social media and order its take down.

Mehta said, “Another man's right of reputation, another man's right of knowing truth, another man's right of not being misled by fake or false news…It is my (government's) constitutional obligation to ensure that the recipient also enjoys his right not to be misled, his right to get true information, and I'll have to balance both competing fundamental rights.” The court will continue to hear the matter on Tuesday. 

Background

In March, less than a day after the central government notified the fact-check unit under the amended IT Rules, the Supreme Court stayed its operation. The bench of Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra said, “The challenge to the validity of 3(1)(b)(5) involves serious constitutional question and the impact of the rule on free speech and expression would need to be analysed by the high court.”

The top court had also observed that adjudication was pending by the high court. On March 11, the Bombay High Court rejected Kamra and the guild’s case in a 2:1 judgement, with Justices AS Chandurkar and Neela Gokhale supporting the government’s argument in contrast to Justice Gautam Patel.  

As quoted by Bar and Bench, Kamra’s counsel Darius Khambata said the fact-check unit has a “chilling effect on free speech”. “No intermediary challenged these rules. Why? Because they will protect their interests. They will happily be chilled. Justice Gokhale also said we had a case to make…It is a question of Caesar judging Caesar.” 

Advocate Shadan Farasat, representing the Editors Guild of India, said: “The judges have proceeded on the assumption that the government is a good boy. The critique business of the government is why Article 19(1)(a) exists…How will investigative journalists work at all? It is through several sources in the government. Now a central authority will stamp out all other voices.”

However, solicitor general Tushar Mehta emphasised that “If someone criticises the prime minister. It would not fall under this [fact check unit].”

The amendments have been widely criticised by press groups, opposition leaders and journalists. 

Newslaundry has reported on length on the controversies surrounding the amendment and why it’s a blow for press freedom. Read about it here.

To know how the amended IT Rules translate to “greater opacity” in surveillance and impact RTI, read here.