Mumbai High Court Flirting with Truth

The bench of Mumbai High Court which is hearing the complaint against the recent IT rules regarding fake news is making comments which make good headlines in a Newspaper but are irresponsible and may even be termed naive and biased.

On 14th July, news headlined “Can’t bring a hammer to kill an ant; Bombay High Court calls IT rules ‘excessive’ “

It was noteworthy that the same headline was used my multiple publications such as, Hindu, Deccan Herald, The Print etc.

Obviously it appeared that all these editors found that the words of the Judge was like a “Quotable Quote”. Was it a coincidence that all these editors thought of the same head lines or was it a press release sent out to all these publications by one of the petitioners or on his behalf by some organization?.

This is not the first of the quotes of the bench which have got wide publicity. earlier reports quoted

“IT rules Amendment Prima facie lack necessary safeguards to protect Satire”

“No matter how ludable the new IT rules are, if the effect is unconstitutional, they must go”

“Government is not a repository of truth that cannot be questioned”

The Court further went on to comment

“It is difficult that one authority of the Government is given absolute power to decide what is fake, false and misleading….” ..

“There is an assumption that what the FCU says is undeniably the the ultimate truth”.

‘No person is claiming a fundamental right to lie”…

“..a person can be anything they want (on the internet) is not necessarily impersonation”.

These are all the opinions of the individual judge/s and not supported by facts. In a way the Judges are lieing themselves when they are making these comments.

The current status of the case is captured in this video

The petitioner Mr Kunal Kamra is a political activist who can claim anything in his peition. But it is inappropriate for the Judges of the Bench to make comments as if it has already made its decision even before the trial concludes.

The way the judges are blurting out their views reminds the behaviour of the Supreme Court bench which heard the Nupur Sharma case indicates that this trial is a farce and the Judges have already made up their mind on the outcome.

The Court by its conduct is misleading the public by making unwarranted comments.

In our opinion just as I have the right to say that anything published about me online is false, the Government also has the right to say what is told about it in the digital media is not correct or false.

The Court cannot take a stand that any false statement can be made on the Government and the Government has to be a mute spectator.

For example, if any publication says that a particular judge is corrupt, has taken bribe for giving out a decision, does the judge not have a right to give a counter statement in the press besides launching a “Contempt” proceeding?

Similarly every citizen as well as the Government has the right to counter the truthfullness of a false statement first by a counter statement and this right is in addition to the right to file a case in a Court of law. What the counter statement does is to give the knoweldge to the publisher that the content is disputed.

If the publisher then decides that the content is fine and is part of the free speech, he can very well not do any thing on the counter statement. It would be ethical to publish the counter statement on the same publication but even this is not mandatory.

What the notification states is the right of the Government to make a public statement that a certain information as published is false. Currently this is only regarding the information about any Government department. There is no compulsion that the information has to be removed forthwith.

Only God knows how can the Court consider this “Right to Self Defence” as incorrect and undesirable.

It is also wrong to say that any “FactCheck call” will make the Intermediary vulnerable to punishment. Punishment if any will come only if a Court decides in a case that the false information casued a wrongful harm to some body.

The Court is completely wrong to presume that every Fact Check call is an automatic punishment on the Intermediary.

The Court has also asked repeatedly why this rule is for digital media only and not print media. I hope the Court will remember that the Print Media works under a different system where there is a publisher and editor to take the responsibility to the content posted by a reporter. On the digital media the reporter is himself the editor and the publisher and it needs a different set of rules. There is also a “Press Council” to monitor which is not available for digital media including you tube publications.

In order to defend the argument of the political petitioner, the Court has gone to the extent of saying that there is “No Impersonation” if a person presents himself as somebody else on the internet. This is pure and simple “Forgery” and the Court defends electronic forgery. This directly counters Section 66C and 66D of ITA 2000/8.

I will recall the words “Vinashakale viparata Buddhi” for this statement.

The Judge does not seem to know what are the implications of his statement.

In the video above one of the advocates for the petitioner has suggested that “Satire” by definition is stating a falsehood and hoodwinking the public to believe the untruth and later call it as a bloff and laugh it off. However until some body challenges the falsehood prevails and damages the social fabric.

The Cambridge dictionary only says Satire is a way of “criticising people or ideas in a humorous way”. It does not give license to say in digital writing some thing false and let it go viral just to excuse one self when cornered claiming it to be a “Satire”.

In the Advertisement industry, there is an ethical way of publishing articles which are paid for and are considered Advertorials. Such content always contain a note in some corner which says it is an advertisement.

Similarly of some content has to be considered a “Satire”, it should declare it to be so either in the beginning or in the end. On the other hand no body should be allowed to say falsehood and wait for the public to believe it as true and when challenged, state that ” I only wanted this to be a satire”.

This is absolutely unacceptable even if the Mumbai High Court has a counter view point.

The two judges of the bench hearing the case have already created enough damage to their reputation as independent judicial functionaries and should strictly refrain from making any further comments. Their views are known and they themselves are better than the advocates of the peritioners in defending the petition and they should straight away pronounce their judgement.

It is a waste of time and money to carry out such trials which have no purpose in the society. The Government should call out the evident bias that the bench is displaying and demand a new bench to be constituted for carrying on the trial.


About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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