The Bombay High Court on Thursday said that if the consequences of a law are unconstitutional, it has to be done away with no matter how laudable the motive for its introduction was, reported Bar and Bench.

A division bench of Justices Gautam Patel and Neela Gokhale made the remark while hearing a batch of petitions filed by stand-up comedian Kunal Kamra, the Editors Guild of India and the Association of Indian Magazine and regional channels challenging of the new amendment to the Information Technology Rules.

Under the amendment notified on April 6, the Centre can set up a fact-checking unit that can flag online information it considers false or misleading. Social media intermediaries also have to censor or modify content flagged by the unit.

At Thursday’s hearing, senior advocate Navroz Seervai, appearing for Kamra, argued that the government, with the news rules, is declaring that it will ensure that social media covers only what the government wants and what it terms as the truth, making everything else censured, reported The Hindu.

Seervai also asked why the government has little faith in their citizens. “Do they [the citizens] need to be treated by a nanny state?” he argued. “Does the government have so little faith and confidence in the public that they say ‘we have to be like a mother to them, or like a nanny, and shield them’?”

To this, the High Court said: “No matter how laudable or high the motives are, if the effect is unconstitutional then it has to go.”

The bench also asked why an amendment is needed when there Press Information Bureau already exists.

“They are saying FCU [fact-checking unit] is not introduced now, but PIB had existed since long,” the court said. “Where do we find an explanation in replies as to why that structure is inadequate and why you need amendment? Whenever PIB issues a clarification, every news channel and paper carries it.”

The judges, however, also observed that the government may have come up with the amendment because of the power and extent of the internet, reported Bar and Bench.

“Governments cannot do away with the internet as that is where they carry out their business,” the bench said. “But it comes with its limitations. This is more like the fear of the unknown. And this is why the government has come up with this. Whether it is legitimate or not is what we have to decide.”

The bench expressed concern about the possible outcomes of the amendment ahead of the 2024 Lok Sabha elections.

“Suppose an online person questions the statements made on the campaign trail by a political spokesperson, calls it out and if FCU [Fact Checking Unit] says remove it, how can it do that,” the High Court remarked, reported The Hindu. “Is that the business of the government? Can a site hosting this lose safe harbour if the government’s FCU flags it as false and they refuse to remove it?”

The Centre, in April, had told the High Court that it had amended the Information Technology Rules, 2021, because false and misleading information could harm electoral democracy.

The Union Ministry of Electronics and Information Technology had said that misinformation has the potential to fan “separatist movements and intensify social and political conflict, while also weakening public trust in democratic institutions”.

On June 7, the ministry had said it will not notify the fact-checking unit till July 10.

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How the Centre’s amendments to IT Rules will throttle press freedom