This is the third in a series of articles. Read the first and second parts. “Not a single proportionality test is satisfied [by the proposed amendment]. Can you say it's a state aim to ensure that there is filtering of information?” asked Senior Advocate Arvind Datar while challenging the constitutionality of the Indian government’s plan to give a government-appointed unit power to fact-check government-related information online. Across three days last week, multiple parties challenging the law before the Bombay High Court argued that it arbitrarily stifles free speech rights online, held under Article 19(1)(a), at the cost of keeping Indian citizens informed and engaged on dissenting views. The government has since promised to stay the law’s notification until July 28th. Appearing for one of the challengers—the News Broadcast and Digital Association—Datar continued, “can any democracy say that it is a legitimate state aim that they will decide what the people should know as far as the business of the government is concerned? What is the rational connection [between the amendment and the objective it seeks to achieve]?” The proportionality test devised by the Supreme Court in its verdict affirming privacy as a fundamental right evaluates the legitimacy of government infringements on fundamental rights. They should: Be sanctioned by law; Be necessary in a democratic society, and for a legitimate aim; Be proportionate to the need to infringe on the right; Have procedural guarantees protecting against abuse of the infringement; Have sufficient safeguards protecting against state abuse of the infringement, with this…
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