14 February 2024

Absolute Truths and Absolutist Control

On India’s “Fact Check Unit” over Social Media

Last week, the Bombay High Court delivered its judgment in Kunal Kamra v. Union of India, comprising a split verdict on the constitutional validity of the Information Technology Rules, 2023 (“IT Rules/Rules”), which install an institutional regime for determining – and warranting takedown by social media intermediaries – of content relating to the Central Government deemed “fake, false or misleading”. This determination would be made by the Fact Check Unit (“FCU”), an entity operating under the Central Government, likely consisting entirely of its own appointees. This regime was challenged on three main grounds – first, its violation of citizens’ free expression due to “fake, false, or misleading” speech being constitutionally protected; second, the pedestalization of state-related information, such that it enters public discourse with a single, truthful formulation, as being an illegitimate and disproportionate measure; and third, the violation of natural justice in enabling the state to determine truth and falsity concerning itself. The two judges – Patel and Gokhale, JJ. – disagreed on all three claims.

In this post, I analyze the two judgments, highlighting the twin origins of the judges’ disagreements:  first, their distinct conceptions of the legitimacy of state power in prescribing a singular version of online truth, alongside their estimation of the social dangers – as well as citizens’ agency – in navigating falsity on the internet; and second, their opposing views on the state’s likelihood to abuse its truth-determination powers, which originates in their distinct understandings of the existence of absolute truths and falsities. I propose Gokhale, J.’s judgment, which upholds the Rules, to demonstrate an unthinking belief in the state’s genuine pursuit of combatting misinformation with negligible safeguards, resting on simplistic notions of the existence – as well as the social lives – of truths and lies.

State-Led Determination of Truth and Falsity – A Legitimate Goal?

The underlying theme of the case concerned the legitimacy of using state power to prescribe singular versions of the truth, which become final and unquestionable, with any material deviating therefrom warranting removal from social media. The state proposed this to be applicable only to its “own business”, i.e., the “business of the Central Government” as stated under the IT Rules, a term the petitioners proposed to be vague and overbroad, bringing within its fold any material the state deems undesirable. The state cited several studies on the dangers of social media falsehoods, touting its truth-determination interventions as essential to enable a peaceful social climate, for it is – it claimed – the parens patriae, responsible for protecting citizens from incorrect information.

Patel, J. – striking down the IT Rules – held the parens patriae assumption constitutionally impermissible, for it envisioned a passive citizenry that must be protected, kept from falling into error, and safeguarded from incorrect information (¶158, 213). He also noted that the Rules were simultaneously underinclusive and overinclusive: if their objective was to protect citizens from social media misinformation, confining such misinformation to the “business of the Central Government” would insufficiently pursue this objective, and if the purpose was solely to communicate correct policy-related information related to the state, the inclusion of protected speech within the Rules’ fray – such as dissent, criticism and satire – in no way furthered it (¶179, 185). Further, he held that state-related information did not warrant pedestalization to a distinct class, such that a separate regime be installed to ensure its dissemination in an uncorrupted, truthful manner. The state, he noted, has the “biggest megaphone and the loudest voice”, and should use that instead to participate in the ideas’ marketplace, making its truths compete with all its other versions (¶213). He displayed suspicion towards the width of the impugned term – “business of the Central Government” – pointing to its immense elasticity, which can span from “police, defence, health and medicine” to statements attributed to state officials, to a plethora of information that none can objectively lay down (¶182).

Gokhale, J., however, disagreed, holding that the parens patriae formulation was, in fact, correct, given the immense dangers posed by social media misinformation. The state had a duty to “create better conditions for citizens to sift facts from fake”, and to enable them to “make informed decisions” based on “unadulterated information” (¶58). She noted the rise of deepfakes on social media, studies documenting the rise in fake news on the internet, as well as persons’ susceptibility to believe in and develop opinions based on falsities (¶54).

Despite the social dangers posed by online misinformation, however, it was apparent that mere falsity is not a ground the Constitution sanctions to proscribe speech, for the eight grounds under Article 19(2) (which concern the state’s security, foreign relations, contempt of court, etc.) – the Supreme Court has consistently held – are exhaustive, and cannot be expanded through the judicial route. Patel, J., based on this proposition, held the Rules violative of citizens’ free expression, for they restricted expression in pursuit of a constitutionally unsanctioned objective (¶154). Gokhale, J., seeking to prevent this conclusion – arising likely from her belief in the heightened social dangers of misinformation – held that speech containing falsity, especially reckless falsity, did not constitute a part of the right to free expression in the first place, rendering redundant the assessment of the Rules’ restrictions (¶41).

The judges’ disagreements, therefore, originate in their distinct beliefs in citizens’ agency, alongside the state’s corresponding duty to secure a pure, incorruptible online discourse. While Patel, J. expresses suspicion towards the expansion of state power to dictate the truth, it is Gokhale, J.’s estimation of the dangers arising from misinformation that causes her to uphold – through much acrobatics – the FCU’s truth-determination powers.

Absolute Falsities, Absolute Truths, and the Likelihood of Abuse

Gokhale, J.’s emphasis, as would be apparent, lies primarily on falsities (and fakery), leading the reader to occasionally forget that the Rules bring another subset of information within their fold: misleading information. Gokhale, J., in repelling the argument of the Rules’ invalidity owing to their overbreadth and vagueness, holds – based on the existence of supposedly objective truth and falsity – that a sense of true and false is possessed by all, which are exactly the standards the FCU is entrusted to apply:

  1. Truth is the opposite of false and truthfulness or falsity of information may be relative, however, a fact cannot be fake. Fake is something which is nonexistent. Here, a question of subjective interpretation of fact does not arise, because the very fact itself is non-existent.

She holds, therefore, that uncontested, absolute truths exist, for “a fact cannot be fake”. Patel, J., on the other hand, notes that while some statements can be labelled objectively false (such as 2+2=5), most lie in the hazy terrain of being neither true nor false, which are “expressions of opinions, hopes [and] desires” (¶119). Even for information that is supposedly objectively true, such as the factum of the state releasing data concerning the economy, poverty, or health, such data’s contesting versions, which question the official state narrative, necessarily abound. In case the FCU is empowered to forbid these contesting versions, it would constitute speech absolutism, and all counter-points would simply be forbidden (¶126). The word “misleading”, which is susceptible to even greater abuse, was also upheld by Gokhale, J. through the creation of an intent-based standard, tasking the FCU to assess whether the impugned content was uploaded by the user maliciously (¶37).

The possibility of the existence of truths and falsities in absolutes, therefore, constituted the primary disagreement between the two judges, having substantial ripple effects towards their views on entrusting the FCU with this determination. For Patel, J., it was the unlikelihood of information appearing as objectively true or false that aroused his suspicion about the FCU’s genuine ability to enquire into and to prohibit such information. On the other hand, Gokhale, J.’s construction of the Rules as targeting absolute falsities, which was evinced by her grand and simplistic claim that “truth is the opposite of false” and that “a fact cannot be fake”, was the primary ground for attributing a sense of objectivity to the FCU’s tasks, making it a reliable arbiter of truth.

In her analysis, however, a realistic assessment of online discourse, as well as the width of the term “misleading”, are starkly absent. While there are some facts that are necessarily true (such as the earth revolving around the sun, mathematical additions, etc.), such unquestionably true facts generally do not constitute a substantial chunk of online discourse, and even when they do, the invocation of opposing untrue information risks little cognizable harm. This is because the ideas’ marketplace is likely to consist of proponents of such necessarily true facts, and a commonsensical social sense of truth is likely to develop around them. Such facts, especially when revolving around the state itself, may not need the extraordinary protection of an institutional regime.

Further, the term “misleading” – even if qualified with Gokhale, J.’s malice-based requirements – confers on the FCU largely unconstrained power to remove social media content. Any refusal to toe the state’s official line can be deemed misleading, which may span from differing views on the country’s economic growth, prevailing authoritarianism, or judges’ biases. As noted by Patel, J., “[e]very single counter point on government business can conceivably fall within the word ‘misleading’” (¶126). Gokhale, J.’s trust in the FCU, however, allayed her concerns with such abuse, causing her to uphold even this tangibly overbroad term.

Conclusion

The judgment in the IT Rules’ challenge, therefore, is an illustration of competing judicial ideologies, with one judge comfortably entrusting the state with powers to prescribe online truth, and another expressing immense disbelief with the genuineness and necessity of such a measure, which was likely to be used for oblique ends. Patel and Gokhale, JJ. also view the state-citizen dynamic from opposing ends – while Patel, J. prioritizes citizens’ agency in perceiving, interpreting, and acting on online information, Gokhale J. holds the state the parens patriae, legitimizing its objective of protecting citizens. The clearly constitutionally unsanctioned nature of restricting falsity per se, however, substantially tilts the case in the petitioners’ favour, apparent from Gokhale, J.’s acrobatics – which include denying false speech the status of a right – to uphold the Rules. It is hoped, therefore, that subsequent judgments of the Bombay High Court (and the Supreme Court) hold the Rules invalid, enabling a relatively free online discourse, while prompting an inquiry into lesser rights-restrictive ways of combatting misinformation.


SUGGESTED CITATION  Kalra, Kartik: Absolute Truths and Absolutist Control: On India’s “Fact Check Unit” over Social Media, VerfBlog, 2024/2/14, https://verfassungsblog.de/absolute-truths-and-absolutist-control/, DOI: 10.59704/54581b17916817b0.

3 Comments

  1. Igor POPOVIĆ Fri 16 Feb 2024 at 08:51 - Reply

    Dear Kartik,

    thank you for introducing us with the judgment and for presenting the overview of two different points of view.

    From my side, I am more aligned with judge Patel belief. Fake, false or misleading (FFM) content should not be per se prohibited, but only if they lead to the application of other concepts (e.g. hate speech or election fraud crimes)

    I do have two questions for you (sorry if I missed the answers in your post):

    1) what is the actual authority of the FCU after they classify certain consent as FFM? Do they have an authority over social media/users to oblige companies/users to take the content down?

    2) What was the outcome of the case? Two split judges imply that the law was upheld as constitutional?

    Thank you

    IGOR

    • Kartik Kalra Fri 1 Mar 2024 at 07:26 - Reply

      Hi Igor, thank you so much for reading the piece! The judges, in fact, differed on the FCU’s jurisdictional powers as well – Patel, J. noted that a failure to abide by the FCU’s directions would ultimately make the intermediary liable for loss of safe harbour, while Gokhale, J. stated that the loss of safe harbour has to be decided in a court of law, and the intermediary can choose to disobey the FCU’s directions if it desires, as long as it is ready to defend its stance in court. Patel, J., however, also noted that the political economy of the intermediary business is such that none would actually desire contesting the state’s directions if it could translate into a potential loss of safe harbour, noting that no intermediary moved court, and it was only persons using social media – such as journalistic and editorial guilds – that had done so to contest the IT Rules, 2023. In this way, he considered the FCU’s directions – for all practical purposes – to be final and binding on the intermediary, which necessarily have to be followed.

      On the second issue of what happens now, the Bombay High Court has constituted a tie-breaker bench headed by another judge, who will decide whether the Rules are valid or not – you can read about it on https://indianexpress.com/article/cities/mumbai/bombay-hc-third-judge-opinion-split-verdict-pleas-amended-it-rules-9151045/.

      Warm regards,
      Kartik

      • Igor Popović Wed 20 Mar 2024 at 08:16 - Reply

        Dear Kartik,

        Thank you for the explanation on both points. Re the first one, I would align with Patel about the mandatory nature of rules.

        Once again, thanks for bringing this interesting piece.

        Kind regards
        Igor

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