Recent court decision in India on the right to free speech on social
media
The 31st January decision of Justice Gautam Patel of the Bombay High Court in a bunch of petitions, popularly known as the Kunal Kamra’s case, stands out for its compelling articulation of the constitutional fundamentals in relation to the right of free speech on “social media.”
The learned Judge has reiterated the sacrosanctity of the inviolate constitutional guarantee of free speech.
Its not to be tinkered with or read down, except for the reasonable restrictions thereon as envisaged in Article 19(2), (6) of the Constitution.
The affirmation of this constitutional right and its eloquent defence against State encroachment by the Judge is reassuring.
Even though his decision on the subject is not yet binding, because of a split verdict by the Division Bench.
The context of the decision is the amended Rule 3(1)(b)(v) of the IT Rules 2021.
Widely perceived as arbitrary and unjust.
3(1)(b) the intermediary…shall make reasonable efforts by itself.
Its to cause the users of its computer resource to not host, display, upload, modify, publish, transmit, store, update or share any information in respect of any business of the Central
Government identified as fake or false or misleading.
Failure to comply with the due diligence obligation would invite penal consequences for the errant intermediary under Rule 7
Fact Check Unit (FCU)
The effect of these provisions is to confer unfettered powers on the Fact Check Unit (FCU) to control the digital content in matters connected with the business of the Central government without specifying the contours of the government’s business.
Declaring the amended Rule unconstitutional, Justice Patel held that the amendment results in a form of censorship of user content that is vague and overbroad.
This will destructive to the right to criticise and debate.
It does not disclose reasonable standards and objective criteria to determine the validity of the decisions of the FCU as the sole decision maker.
That the amendment is not within the boundaries of reasonable restrictions envisaged in Article 19 (2), (6) and that the impugned amendment was unconstitutional for infracting the rule of non-arbitrariness.
Non-discrimination in Article 14 absent, “clear guidance” and non-application of the Rule to the print media.
Invoking, amongst other principles, the doctrine of proportionality and the absolute necessity of the measure to achieve the State’s goal, the Judge held the amended Rule as ultra vires Article 19(1)(a), 19(2), 19 (1) (g), 19 (6), Article 14 and Section 79 of the IT Act.
COMMENTS