Judge, Jury, and Executioner

You found me guilty

And now my terms begin………

So goes the unforgettable Jim Reeves number, "Guilty" of 1963, an elegy for unrequited love. I remember falling in love forever with this song the first time I heard it during my student days in the late 1970s from my young YMCA hostel mate Manoj Stephanos who sang it soulfully strumming his guitar. But, now, I'm reminded of the legendary American country singer’s baritone lines, not by anything related to love but by the latest amendment to the Information Technology Rules, 2021 (ITR).

The amendment brought on April 6th by the Ministry of Electronics and Information Technology (MeitY) certainly would be one more nail in the coffin of freedom of expression and democracy in India. It would also further dent the country's image when it wallows at the bottom of almost every global index on freedom and democracy. And, as one more reminder of the ongoing Orwellian newspeak, the authorities claim that the repressive amendment is aimed at checking fake news and upholding media ethics! “War is peace, freedom is slavery, and ignorance is strength.”

The most controversial provision in the new amendment is anointing the central government-run Press Information Bureau (PIB) as the official fact checker. The PIB would now sit in judgement to notify what it deems “fake” content on social media platforms regarding central government schemes or departments. Once anything is found “fake”, the platform that carried it would lose its “safe harbour” status. This means that the Social media platform would be liable to be prosecuted for carrying content posted by users if PIB found it to be fake. Until now, these platforms had enjoyed safe harbour status, which made them not accountable for whatever was posted on them by users as the former were considered only as intermediaries as per IT Rules 2000. The new amendment ends their legal immunity. Who can contest that the PIB is shaping up to be a super censor, akin to those faceless bureaucratic minions in every district of the country to filter and censor every line published in the press during the dreaded Emergency? At least for now, only social media comes under this censorship and not the mainstream media or their online wings. But, the state is an eternally power-hungry beast that, once tasted blood, would be craving more. It also invites the charge of the government following double standards in the media field with one set of rules for the mainstream and another discriminatory set for social media.

Can any nation call itself a democracy if a government organisation sits in judgement over what is fake content in the media and that too on news or views on matters related to the same government? Especially when many of PIB’s earlier “fact checks” were proved completely baseless. What could be a better example of the fox guarding the henhouse?

A consolation offered by Rajeev Chandrasekhar, Union Minister of State for Electronics and Technology, is that the platform that is found to have fake content would not be ordered to take it down. But that is too specious an argument. If the government finds content fake, how many platforms would carry it if they would face legal action and would have to go through the judicial procedure to prove otherwise? Especially when platforms would not be obligated to the many users who post their content on them. So, in effect, it would have a chilling effect on posting anything critical of the government? And on the safe harbour status, Chandrasekhar, himself a media Mughal, assures that the accused platform would lose the status only if it does not address the complaint promptly. Recall Henry Ford’s famous response to the complaint that his Model T car came only in a single colour, black, “Any customer can have a car painted any colour that he wants, so long as it is black."

When the IT Act was brought in 2000, India had become the first in South Asia and 16th in the world to introduce cyber laws. But since then, in the name of noble objectives like making it to suit changing technology, making it more ethical, safeguarding privacy and dignity, or checking fake information, the Act has been amended multiple times. The result was the Act assuming more teeth that led to the constitutionally-granted fundamental rights like free speech.

The amendments of 2008, which became rules in 2011, brought in various Security Practices Rules, Cyber Cafe Rules, and Intermediary Guidance Rules, which allowed the government to block content, extract sensitive personal information, etc. Critics pointed out that many of them violate free speech and privacy.

The Supreme Court famously intervened to strike down some of the draconian provisions in 2015 in the public interest case filed by lawyer Shreya Sighal. The apex court struck down the infamous Section 66A of the IT Act in 2015, which permitted misuse of rules and arbitrary arrests in the name of “offensive” online messages. The landmark verdict by the division bench consisting of Justice F.S. Nariman and J Chelameswar was a great achievement for free speech. Singhal is the great-granddaughter of Congress leader and former Union law Minister HR Gokhale and granddaughter of MC Bhandare, a former Congress parliament member, Governor, and lawyer.

Indian citizen’s civil rights received another major boost in 2017 when the Supreme Court recognised the right to privacy as a constitutionally-guaranteed fundamental right in the writ filed by the now 97- year-old K S Puttaswamy, a retired High Court judge of Karnataka against the central government making Aadhar, mandatory for all citizens. The verdict was unanimously delivered by a seven-member constitutional bench headed by Chief Justice J S Khehar. The judgement was authored by the present Chief Justice of India, DY Chandrachud, who upheld Indian democracy recently by lifting the ban on the Media One tv channel and barring the state from denying citizens freedom of expression under the plea of “national interests.”

The new amendment of IT Rules has come on the heels of the much-publicized punitive action initiated against the BBC in the aftermath of its airing of the documentary on Gujarat riots that held Prime Minister Narendra Modi for the carnage. This is besides falling behind in most global democracy indices since Modi took over in 2014. India’s rank fell from 100 to 108 in the Electoral Democracy Index of 2023 by the V-Dem Institute at the University of Gothenburg, Sweden. The world’s biggest democracy’s position was behind countries not famously known for democratic practices, like Tanzania, Singapore, or Nigeria. Surely, Pakistan is two slots behind India. It classified India as a “backsliding democracy” and one of the “worst autocracies of the world” in the last decade. This finding that the entire world has been moving towards autocracy in the past decade- 72% of the global population living under autocracies and freedom of expression declining in 35 countries- is hardly a consolation for India’s pathetic position.

The latest Democracy Index by the London-based Economic Intelligence Unit (EIU) of The Economist magazine ranked India 53rd among 167 countries and classified it as a “flawed democracy.”

India fell to its worst rank in history -150 out of 180- in the Global Press Freedom Index of 2022 prepared by the Paris-based Reporters Without Borders.

The only facile argument from the government’s side against this was the propaganda that India was targeted by an international conspiracy. But how and why could all the much respected global agencies conspire against India, especially when India has recently taken over as the President of G20, the super community of the world’s most powerful nations?

Interestingly, V-Dem Institute lists conditions to help democracy bounce back in countries. They include 1. Mass mobilization against incumbent governments 2. Unified opposition working with civil society 3. Judiciary reversing an executive takeover of citizens’ rights 4. Critical elections. The Institute cites the success of Indian farmers’ agitation to repeal anti-farmer laws in 2021 as a step forward for democracy. Will our middle class and even the mainstream media, which ignored the farmers' agitation or found it a nuisance, agree?