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“What Is Fatal to the Amendment Is the Absence of Any Definitions”: Bombay HC Hears Fact-check amendment

“The rule itself gives us no canalization, no guidelines about what can and can’t be done,” Justice Patel observed.

This is the second of a series of articles. Read the first part here

“What is fatal to the amendment is the absence of any definitions,” observed 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. “They have not defined ‘business of central government’, what is ‘fake’, what is ‘false’, what is ‘misleading’,” Datar added, while appearing in the News Broadcast and Digital Association’s challenge. 

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. 

Introduced through an amendment to India’s platform regulation rules, the IT Rules, 2021, platforms will lose safe harbour or protection from liability for third-party content, for failing to take down the flagged ‘fake’ information. Safe harbour is held under Section 79 of the IT Act, 2000. 

Past laws were struck down on the lack of definitions alone: Referring to a past Madras High Court verdict in a similar matter on land grabbing laws, affirmed by the Supreme Court, Datar recalled: 

“The word ‘land grabbing’ was not defined [in an order by the Tamil Nadu government to tackle the issue]. It was a serious social problem, particularly in the outskirts of Chennai and other cities where the political mafia had grabbed land. The government issued a G.O. [government order], constituted a special police cell and created a special court to deal with this menace. Yet, the High Court struck it down because it said that the government did not take the trouble to define land grabbing…If your Lordship is satisfied that the absence of a definition of ‘business of central government’, ‘fake’, ‘false’, ‘misleading’ [is sufficient], on the basis of the Madras High Court judgment and the Supreme Court judgment, that is enough to strike the amendment down.”

Such arguments have been separately raised by the Supreme Court in Kartar Singh (1994), as Datar noted: 

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“…It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined…Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application…”

Article continues below, you might also want to read:

Fact-checking government business is ‘manifestly arbitrary’ and cannot survive judicial tests: “The test for manifest arbitrariness is whether you can make out a determining principle underlying a particular legislation or a rule,” explained Advocate Gautam Bhatia, appearing for the Association of Indian Magazines. “Our submission is that…this amendment fails on that ground, because it singles out the business of the Central government [to be fact-checked]. They seek to justify that singling out on the basis that the Central government might be in possession of certain information that it is in the best position to correct. But, that logic applies across the board to state governments, corporations, and so on. So…there is an absence of determining principle which makes the amendment manifestly arbitrary.”

Should the Centre have defined government ‘business’ in the rule?: The government had defined its ‘business’ in an affidavit filed in the case, although not in the amendment itself. Addressing Datar, Justice G.S. Patel, joined by Justice Neela Gokhale, questioned whether it was possible for courts hearing such challenges to validate the rule based on clarifications made in government affidavits.

“Nothing stopped [the government from including] an explanation [in the amendment] saying for the purposes of this rule, the business of the Central government shall mean this, but not this,” Justice Patel observed. 

Datar flatly disagreed with clarifications appearing in affidavits alone, arguing that the language should have been included in the amendment itself. 

“The affidavit doesn’t bring out any precision or clarity [on government business],” Datar observed. “It is not the business of the counter-affidavit of a Secretary or a Joint Secretary to explain, ‘we said this in the notification, which actually meant this’. That is impermissible. You can’t say, ‘A plus B is equal to C in the notification, but actually I don’t mean C, I mean C minus something [in the affidavit]’. That is not acceptable [either]. You amend the notification, [for example instead] say that rules of business will only mean [content on] international security, or some terrorist act.”

Can party horsetrading constitute government business? Bench hypothesises: “The rule itself gives us no canalization, no guidelines about what can and can’t be done,” Justice Patel observed once again while hearing arguments by Advocate Shadan Farasat appearing for the Editors Guild of India. “I’m just asking [for example], is a particular political action, to take Maharashtra [where politicians are] moving from one party to another party, is that the business of the government, or we don’t know?”

“My lords, the definition is so broad that it could very well include it,” Farasat drily replied. 

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I'm interested in stories that explore how countries use the law to govern technology—and what this tells us about how they perceive tech and its impacts on society. To chat, for feedback, or to leave a tip: aarathi@medianama.com

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