Challenge to the IT Rules 2023

Comedian Kunal Kamra argues that the Rules will lead to censorship and overregulation of online content.

On April 6th 2023, the Ministry of Electronics and Information Technology (MeitY) issued the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Rules 2023). These rules direct social media intermediaries (such as Facebook, Twitter, etc.) to remove any news related to the ‘business of the Central Government’ that was deemed ‘fake, false, or misleading’ by a fact-checking unit established by the Central Government.

Comedian Kunal Kamra filed a Writ Petition in the Bombay High Court on April 10th, 2023, challenging the Rules. He claimed that the IT Rules 2023 are in conflict with Section 79 of the Information Technology Act, 2000 (IT Act) and Shreya Singhal v Union of India (2015). Section 79 of the IT Act is a ‘safe harbour’ provision for social media intermediaries. It protects them from liability for user-generated content. According to Section 79(3), intermediaries must remove content upon receiving a notification from the Central Government. Mr. Kamra pointed out that Shreya Singhal emphasised that such notifications should be issued through a court order. The IT Rules 2023 enables the Central Government to avoid the involvement of the Court, and act as both the ‘Judge and the Prosecutor’. This is a large deviation from the prescribed procedure in Section 79.

Further, he submitted that the IT Rules 2023 violate Articles 14,19(1)(a) and 19(1)(g) of the Constitution as they are contrary to the principles of natural justice, restrict freedom of speech and prevent him from engaging in political satire.   

Challenged On the Grounds of Speech and Expression

In Shreya Singhal, Section 66A of the IT Act was struck down because it suffered from the ‘vice of vagueness’. Mr. Kamra claims that the phrase ‘business of the Central Government’ in the IT Rules 2023 is ‘overbroad and vague’.The restrictions on speech invariably crosses the scope of reasonable restrictions to freedom of speech under Article 19(2). (Recently, the SC ruled that these restrictions are exhaustive. Read more). He expressed concerns that the inclusion of such broad and imprecise terms would lead to users’ apprehension to express themselves freely on these platforms. This self-censorship will lead to excessive regulation and suppression of lawful speech. Moreover, social media intermediaries might opt to remove information to avoid the risk of losing their ‘safe harbour’ protection.

Challenged On the Grounds of Freedom to Carry Out Profession 

Mr. Kamra argued that the IT Rules 2023 violate his right to carry out his profession under Article 19(1)(g) as a political satirist. He feared that his content was likely to be hand-picked by the Central Government and subject to the ‘fact check’ unit, potentially leading to the loss of his social media access. He speculated that other political satirists like him will indulge in self-censorship or avoid political commentary. 

Challenged On the Grounds of Violating Natural Justice

The IT Rules 2023 does not stipulate the creation of a grievance redressal cell, or any such platform to appeal the flagging or removal of any content by an intermediary. Mr. Kamra argues that this would allow the government to flag any content critical of its actions or policies. The lack of an opportunity for users to present their case violates the ‘right to be heard’ under Article 14. He argued that widening the authority of the Central Government encroached upon the domain of the courts, essentially making it the sole arbiter.

Union’s Response 

On April 21st, 2023, the Union filed its reply affidavit. They termed Mr. Kamra’s petition ‘premature’. They stated that the Rules were issued in ‘public interest’ to prevent the spread of ‘false news’. They argued that the fact-checking will be carried out on the basis of evidence. Further, they claimed that all aggrieved persons will have the remedy to approach a Court if their information is flagged and taken down. 

The challenge is being heard in the Bombay High Court by a Division Bench Bench comprising Justices Gautam Patel and Neela Gokhale. On June 7th, 2023, the Association of Indian Magazines (AIM) and Editors Guild of India filed a separate Writ Petition challenging the IT Rules 2023 in the Bombay High Court. On the same day, the Centre assured the Bombay High Court that it would not establish the fact-checking unit until July 10th, 2023.