The Bombay High Court’s recent verdict raises burning questions – should the government be at all involved in such activities; are Government-appointed agencies capable of carrying out such vetting exercises; and would it not be better to entrust such tasks to independent bodies and news outlets themselves through an ombudsman?

While this may be notched up as a battle won by petitioners Kunal Kamra (stand-up comedian), the Editors’ Guild of India and the Association of Indian Magazines, the war may be a long one. That would be despite Justice Atul Chandurkar of the Bombay HC scotching the Government’s move with stern opinions and observations.

“The amendments are violative of Article 14 and Article 19 of the Constitution of India,” Justice Chandurkar said. He was the ‘tie-breaker judge’ in this case after a division bench of Justices Gautam Patel and Dr Neela Gokhale delivered a split verdict in January 2024.

Nabbing Mischief Mongers Or Censoring Information?

The authorities are standing their ground, with the Ministry of Information and Technology saying “authentic information” needs to be ascertained and disseminated after fact-checking by a Government agency, just “so that potential harm to the public at large can be contained”.

That brings us to the moot point: the ‘Government agency’ itself, the Fact Checking Unit.

Who will man this Fact Checking Unit and what are their credentials? How acceptable will this panel be to the concerned parties?

Can they take on the massive workload that will come in, given that the nation has thousands upon thousands of news disseminating sites, numbers that are only growing with the proliferation of social media sites? 

What happens if their verdict is challenged?

Soliloquy: What of social media platforms that host the content, what are their responsibilities and liabilities?

To answer the last question first, the amended rules mandate that social media intermediaries such as X, Instagram and Facebook would either have to take down content or add a disclaimer once the Government-appointed FCU identifies such content on its platform.

New Brew In Town: Storm In A Teacup

Just by itself, this little sub-clause has managed to raise a storm. Content creators claim the rules are ‘ultra vires’ to Sections 79 of the Constitution, which safeguards intermediaries from action against third-party content, and Section 87(2)(z) and (zg) of the IT Act 2000.

Further, this violates rights that grant citizens “equal protection under the law” under Article 14 & Freedom of Speech under Articles 19(1)(a) & 19(1)(g) of the Constitution, they argue.

Solicitor General Tushar Mehta rubbishes this thought, as he clarified in earlier hearings in the case. Intermediaries like X, Instagram and Facebook, etc. are not at liberty to “do nothing once content is flagged as fake, false or misleading by the FCU”.

If a social media or news website continues to host flagged information, it will have to defend its stand in court, he says.

Advocate Navroz Seervai on the other hand disavows this chain of thought, arguing that the Government already has in place the Press Information Bureau, “which flags information about the Government’s business, (especially) that which it believes to be fake, false or misleading”.

Arguing that not one case has been highlighted by the Union, Seervai claims FCUs may be used to throttle targeted information streams. Who decides right and wrong, and how acceptable will that ruling be?

Finally, paramount are questions no one has asked and no one has cared to answer – what is the incarceration liability; and who will address, and how soon, the debates that stem from this?

Global Mixed Bag: Confusion Over Fake News Fight

Admittedly, fake news and its fallout are impacting nations globally, in terms of their decision-making and democratic processes.

In a report, the University of Nebraska found that barring Japan – where fake news scandals are limited to newspapers and tweeted messages that have no outside influence – fake news is becoming a challenge worldwide.

The proliferation of digital and social media platforms allows for broader distribution of information to a global audience, making the need to counter fake news more acute.

To counter this rising trend, and ensure accuracy and objectivity, many are opting for legal measures to “monitor and cleanse” news reports, including China, Egypt, France, Germany, Israel, Malaysia, and Russia.

Others such as the UK and Argentina have an independent commission for verification of fake news and a process to rebut the same.

Sweden and Kenya are addressing the issue in a more general way by educating citizens about the dangers of fake news.

While it is a case of “to each his own”, there is no instance of Governments turning into judge, jury and executioner to monitor mischievous or fake news.

Most nations have Constitutions in place, and even follow unwritten laws and edicts on this issue.

All agree on one thing – it is acceptable to let 10 criminals go scot-free, if only to ensure that not one innocent person gets unjustly punished.

India has always adopted a similar approach to enforcement; there’s no reason to dramatically change tack and track in this matter.

The Author is a veteran journalist and communications specialist. Views expressed are personal