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    Fact-Check Unit Hearing: Petitioner Kamra Challenges Alleged Right to Accurate Information

    Navroz Seervai, legal counsel for satirist Kunal Kamra, submitted specific fallacies in the Union of India’s argument in the Fact-Check Unit or FCU case being heard before a third referral judge at the Bombay High Court. Referring to judgements like Kaushal Kishore vs. State of Uttar Pradesh & Ors. and Amish Devgan vs Union Of India, Seervai challenged the claims made by the government like an alleged right to accurate information.

    The decision by the third judge Justice A S Chandurkar based on these hearings will help the original two-judge Bench arrive at a majority view. Until then, the Supreme Court of India has stayed the notification issued by the Ministry of Electronics and Information Technology (MeitY) for the formation of the FCU. Petitioners Kamra, the Editors Guild of India and the Association of Indian Magazines, on April 15 began presenting their arguments before the high court.

    Union claims a right to accurate information: Seervai challenged the government’s claim of a ‘fundamental right to accurate information.’ The government in its affidavit that contained the heading “citizens right to know about the functioning of business, right to know accurate and true information, be protected and shielded from fake and untrue information,” argued that the right to know accurate and true information is a fundamental right implicit under Article 19(1)(a).

    “Firstly, that’s [the argument that such a right is implicit in Article 19(1)(a)] nowhere to be found. So, they are misreading 19(1)(a) completely and this is contrary to the assertions ever made or ever accepted by any judgment since 1950. But they are making it,” said Seervai.

    He also pointed out that the union “impermissibly and incorrectly” conflated the State with the government of the day when stating that “the rule is not to protect the state.” Referring to the Kishore Kaushal case Seervai said it shows there is enough protection to the State. Seervai stated that Article 19(2) excludes the government and that as per the Amish Devgan case, the Supreme Court has said that the one thing which the government cannot do and has no business to do is to get into the truth of falsehood of speech as far as citizens are concerned.

    [[Reading out the following argument of the Union of India:]]

    “The state [by which they mean government] is under a constitutional obligation to ensure that through regulatory mechanism, the citizens of this country get information content which is true and correct and are protected from receiving deceptive and intentionally propagated and better information which is patently false, untrue.”

    Seervai said the government pushes for a nanny state while showing low faith in the people, their intelligence, robustness, reasonableness, discernment, and a conflation of the state with the government, while claiming absolute knowledge or absolute truth.

    Rule should not be specific to the central government: The impugned rule constitutes “a classic textbook case of impermissible class legislation” said Seervai and fails the two-pronged test for valid classification under Article 41.

    “If the problem sought to be dealt with… is to protect people and institutions and organizations and political entities from the curse of fake, false and misleading information emanating on the Internet, then there can be no possible justification for restricting it only to the central government because this would and should equally apply to the 28 or 30 states that we have in this country, to municipalities, to public bodies and indeed to all citizens,” said Seervai.

    Rule gives the illusion of choice: Seervai said the argument of a right to contest before the grievance officer appointed by the intermediary is based on a wrongful interpretation that there will be an automatic take-down once something is identified as false or misleading by the FCU.

    “So one, really, there is no recourse, let alone a recourse to an independent arbiter like a court. [Further,] it is worse than this, because the same limitations that apply to the party who has been told ABCD apply to the grievance officer. Just consider, just as the intermediary or the user will not know ABCD and does not, how will the grievance officer? Just as I am kept in the dark, he also is kept in the dark. What will he decide on? …Even presuming that a grievance officer, genuinely bona fide, puts aside self-interest, puts aside the fact that he is a part of an organization and comes to some conclusion they talk of a right to go to the grievance appellate but that is also constituted by government, of the government. From every conceivable angle, there is the most egregious violation of the principle of natural justice.”

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    The post Fact-Check Unit Hearing: Petitioner Kamra Challenges Alleged Right to Accurate Information appeared first on MediaNama.

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