The ‘fact check’ is that Indians will have little choice

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George Orwell’s iconic novel 1984 introduces readers to Oceania, a tyrannical state with a state-mandated language, Newspeak. As described by Syme, a lexologist at the Ministry of Truth, citizens are prevented from “thoughtcrimes” when “every concept that can ever be needed, will be expressed by exactly one word, with its meaning rigidly defined and all its subsidiary meanings rubbed out and forgotten”.

This dystopian fiction is providing inspiration to the Ministry of Electronics and Information Technology (MeitY) which has created powers to determine “fake or false or misleading” Internet content about “any business of the Central Government”. Intermediaries such as social media platforms (Facebook and Twitter) and Internet service providers (Airtel and BSNL), will have to censor (on orders from the government) reports about the government. The reasoning behind these changes, as in the press note, is for a “Open, Safe & Trusted and Accountable Internet”. But is this claim Newspeak?

Also read: Explained | Will platforms have to take down ‘fake news’?

The first claim for an “open” Internet may be examined by having a closer look at clause 3(i)(II)(C) of the IT Amendment Rules, 2023, which contain these powers that were notified on April 6, 2023. The determination of “fake or false or misleading” information about the central government will be by a “fact check unit of the Central Government”. Hence, it will be acting as a judge in its own case.

No safeguards

Natural justice requires a transparent process, where a person is provided a fair chance of a hearing and given a legal order. No such safeguard exists in the IT Rules, which could result in a black box of government censorship. At best, press releases and tweets by the government will rally citizens to its cause without providing legal reasoning or the remedy of a legal challenge. Further, some aggregate numbers will be provided in response to parliamentary questions. This may become the new definition of “open”.

Coming to the claim of keeping Indians “safe”, the rules are for the benefit of “any business of the Central Government”. Reasonably, one could admit that false information about the central government may result, at times, in public injury, but it is undeniable that the direct beneficiary is the central government itself. How may this be exercised?

Also read: Indian Newspaper Society seeks withdrawal of new rules on fact-checking

Precedent exists of the Press Information Bureau (PIB) Fact Checking department itself committing errors for journalistic reporting that is critical of public departments even when this was based on official documents. With the new powers, such a determination by a fact check unit will result in a swift take down, making it inaccessible not only on social media but also on the website of the news portal. Hence, it will prevent readers from developing a critical understanding through a contestation of facts, that is a natural outcome of a democratic system. As Justice Mathew observed in State Of U.P. vs Raj Narain (1975), “...but the executive is not the organ solely responsible for public interest. It represents only an important element in it; but there are other elements. One such element is the administration of justice. The claim of the executive to have exclusive and conclusive power to determine what is in public interest is a claim based on the assumption that the executive alone knows what is best for the citizen”. As in the IT Rules, the central government exclusively knows what is best to keep us safe.

There are no details

To make a “trusted” Internet, such fact checking comes without any details on the composition of the “fact checking body”. This is important as the design of regulatory institutions, when not insulated, or formed with financial and functional autonomy, makes them subservient to government and even political interests. This undermines the very basis of how trust in government is built through scrutiny, given that the executive branch enjoys immense powers of the sword and the purse. This has been explained by the Supreme Court in R. Rajagopal vs State Of T.N. (1994) as, “Our system of Government demands... constant vigilance over exercise of governmental power by the press and the media among others. It is essential for a good Government.”

However, under the present system, the Union Government will become the sole arbiter of truth; and when it says trust us, Indians will have little choice.

The basis of accountability

Finally, the very basis of “accountability” lies in remedial actions that are implemented. This means neither an artificial measure of placation to demonstrate action nor a disproportionate or aggressive penalty. Quite often, when set in its proper context, “accountability” as a phrase is used to correct government and large corporations. How will the IT Rules achieve it when they will target the very institutions that work towards it?

The very mission for journalists is to report facts and speak truth to power. This leaves us to wonder what the slogan “Open, Safe & Trusted and Accountable Internet” means in a Digital India.

Some clues may be provided by the rules of Newspeak which banned the use of the word ‘free’, allowing it to “only be used in such statements as ‘This dog is free from lice’ or ‘This field is free from weeds’.”

Tanmay Singh is the Senior Litigation Counsel at the Internet Freedom Foundation. Gayatri Malhotra is an Associate Litigation Counsel at the Internet Freedom Foundation