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Synopsis

During the hearing of the plea filed by stand-up comedian Kunal Kamra challenging the amendment to the IT Rules establishing a fact check unit, Senior Advocate Navroz Seervai appearing for Stand Up Comedian submitted before the Bombay High Court that a state is treating the citizens of the country like a nanny.  

"Are the citizens of the country to be treated in such a manner that the government has some opinion of all the citizens of the country? Do they need to be treated by a nanny state? Does the government have so little faith and confidence in the public that they have to tell the court we have to nanny the citizens and must be mothered and shield them?" Seervai submitted. 

The high court was hearing a plea filed by Stand Comedian Kunal Kamra challenging the amended IT Rules establishing a fact check unit. 

Senior Advocate Seervai also submitted to the division bench of Justice GS Patel and Justice Neela Gokhale that the petitioner had challenged the constitutionality of the rules under Article 19(1)(a), Article 19(1)(g), Article 14 and principles of natural justice.

He also emphasized that when a court is hearing a constitutional challenge to a provision the court is required to consider the effect of the challenge even if whatever the government says is true. 

The division bench responded to Seervai and said, 
"It doesn’t matter how high your motives were, it is the effect. If the consequence of the provision is unconstitutional it must go," the bench said.

He pointed out that the government had made a false notion that only truth is protected under 19(1)(a) and not false speech
"One aspect which we intend to deal with the frontal end is the false notion put for by the government in its affidavit that only the truth is protected by 19(a) and not falsehood. I want to say that it is a false theory not supported by case law in India and abroad. False speech is as much speech as truth speech and is protected by 19(1)(a)," Seervai submitted.

Seervai added that only after 73 years of independence, the government realised that it was under a constitutional obligation to regulate information and ensure that citizens get correct information.

Stand Up Comedian Kunal Kamra has approached the Bombay High Court challenging amended Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021).

Kamra has challenged the provision that empowers the government to fact-check social media posts through the fact-checking unit of the Central Government and take the posts down from social media.

Case Title: Kunal Kamra vs Union of India