In February 2021, the Indian government introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2021, commonly known as IT Rules 2021. However, the government has now introduced an updated version called the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, which is drawing significant attention from the media and civil society groups. In this essay, we will discuss the IT Rules, 2023 and its impact on freedom of expression in India.

Overview of the IT Rules 2023

The IT Rules, 2023 contain provisions that allow the government to establish a “fact-checking unit” to identify false information related to any business of the central government. This unit has the power to scrutinize online comments, news reports, and opinions about government officials and ministries and instruct online intermediaries to censor them. These rules also allow censorship by online social media companies, ISPs, and file hosting companies.

Constitutionality of the IT Rules, 2023

The IT Rules, 2023 were created under Section 79 of the Information Technology Act, 2000. However, the rules go beyond the established restrictions and contain no definition of “fake or false or misleading” information. The lack of clarity in the rules creates an unconstitutional power for government censorship. According to the Supreme Court’s Shreya Singhal judgment, intermediaries can only take action if they have actual knowledge from a court order or are notified by the appropriate government about unlawful acts. However, the IT Rules, 2023 go beyond this established restriction.

Impact on Freedom of Expression

The IT Rules, 2023 do not define what constitutes “fake or false or misleading” information or the qualifications or hearing processes for the “fact check unit.” The absence of protection for a “fact-check unit” creates an arbitrary and discretionary power for the Union government. The Press Information Bureau’s existing unit has been criticized for its lack of competence, and the IT Rules, 2023 provide no safeguards against such incompetence.

The proposed amendments have been criticized by the Editors Guild, Digipub, and the Indian Newspaper Society. The lack of meaningful consultation before the notification of the IT Rules, 2023 is a cause for concern.

The Impact on Democracy

The Indian Constitution guarantees its citizens the freedom of speech and expression. However, the IT Rules, 2023 may stifle the same. The rules provide for a “fact-checking unit” with broad powers to censor online content that the government deems fake or misleading. Such censorship will have a chilling effect on dissenting voices and may lead to self-censorship. The proposed rules could be misused to target political opposition, civil society, and other critics of the government.

Why In News

The Indian government introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 [IT Rules, 2023], which have been a topic of controversy due to their potential impact on freedom of expression and constitutional validity.

MCQs about Constitutionality of India’s IT Rules, 2023

  1. What are the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023?
    A. New rules introduced by the government
    B. Rules that have been in place since 2000
    C. Rules that were struck down by the Supreme Court
    D. Rules that only apply to social media companies
    Correct Answer: A. New rules introduced by the government
    Explanation: The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 are new rules introduced by the government, as stated in the essay.
  2. What is the government “fact check unit” allowed to do under the IT Rules, 2023?
    A. Identify false information related to any business of the central government
    B. Censor any content it deems false or misleading
    C. Take action only if notified by the appropriate government
    D. None of the above
    Correct Answer: A. Identify false information related to any business of the central government
    Explanation: As stated in the essay, the government “fact check unit” is allowed to identify false information related to any business of the central government.
  3. What is the impact of the IT Rules, 2023 on freedom of expression?
    A. The rules protect freedom of expression
    B. The rules have no impact on freedom of expression
    C. The rules grant unconstitutional power for government censorship
    D. The rules provide safeguards against government censorship
    Correct Answer: C. The rules grant unconstitutional power for government censorship
    Explanation: As stated in the essay, the lack of clarity and safeguards in the rules creates an unconstitutional power for government censorship, impacting freedom of expression.
  4. What is the concern with the lack of meaningful consultation before the notification of the IT Rules, 2023?
    A. The government may have missed important details in the rules
    B. The lack of consultation violates the Constitution
    C. The lack of consultation is a cause for concern because the IT Rules, 2023 impact freedom of expression
    D. There is no concern with the lack of consultation
    Correct Answer: C. The lack of consultation is a cause for concern because the IT Rules, 2023 impact freedom of expression
    Explanation: As stated in the essay, the lack of meaningful consultation before the notification of the IT Rules, 2023 is a cause for concern, particularly given the impact the rules have on freedom of expression.

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