While hearing the challenges to amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, the Bombay High Court on Friday questioned if it was permissible in law for a statute to have unbound, limitless discretionary authority.
Bench of Justices GS Patel and Neela Gokhale made the observation with reference to Rule 3, of IT Rules amendments, which provide that the Cente can form a Fact Checking Unit (FCU) which is empowered to identify and tag what it considers false or fake online news with respect to any of the government’s activities.
The Court questioned if a statute could have limitless discretionary authority to take action when terms in rules are undefined. “‘Fake’, ‘false’ and ‘misleading’ have slightly different colour. I do not know and cannot make out what are the boundaries of these three words in amendment or the word ‘business’. Is it permissible in law for statute to have unbound discretionary authority like this? On its own plainly read, what are the limits and boundaries of these four words?” the Court questioned.
The Fact Checking Units that are being set up by the government are being challenged on the unconstitutionality of the provisos, by advocates representing Kunal Kamra, Editors Guild of India, the Association of Indian Magazines and the New Broadcast and Digital Association.
Not binary
Court also wondered how the FCU was going to know whether a statement made was true or false. “I am not sure whether a court in civil action can say this (a statement is true or false). It may say it is not believable. What is source of FCU’s constitutional power? I am not sure even a civil court could authoritatively pronounce on truth or falsity. It may pronounce on likelihood or probability. This is not a binary. It can’t be a binary,” Justice Patel expressed.
The Bench elaborated with examples. “In newspapers, if you look at criticism of government figures on the state of economy. Figures may come from official sources. Analysts may have their own figures. Is it fake news? What happens to editorial content online? You may find any editorial extremely hard-hitting. For example, India’s relations with China. We are concerned about authority conferred on FCU,” the Court said.
The Bench began final hearing in the petitions filed by Kamra, the Editors Guild of India, the Association of Indian Magazines and the New Broadcast and Digital Association on July 6.
Published on July 7, 2023
