Does India’s New Attempt At Regulating News Pass Constitutional Muster?

“There is as yet no liberty if the power of judging be not separated from legislative power and the executive power”– Charles de Montesquieu, The Spirit of the Laws, 1748

The Constitution of India makes several nods acknowledging the doctrine of Separation of Powers between the different pillars of our democracy. However, one tends to notice this only when there is a breach of this most basic principle.

Valid arguments do of course exist against strict observance in a welfare state such as our own. For example, legislative power should not be allowed to proceed unchecked, and the Judiciary may interfere where a law transgresses a line drawn by the Constitution. Similarly, the Judiciary may be required to make rules for its own functioning.

The Executive is responsible for implementing laws as made by the Legislature- called ‘Acts’, and is also often required to make laws- called ‘rules’ where specifically prescribed in the Act. It is thus logical that such rules should be in furtherance of the ‘Act’ itself, and can’t go beyond the scope of the Act.

On 6 April 2023, the Indian Government notified amendments (“Amendment“) to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Guidelines“), available here. As part of the Amendment, the Government has amended Rule 3(1)(b)(v) of the Guidelines – which now makes it incumbent upon the intermediary to state in its Terms of Service that its users should not transmit information regarding any business of the Central Government that is identified to be false, fake, or misleading by a fact check unit of the Central Government to be specified by the Ministry of Electronics and Information Technology (“Ministry“).

Not only is the intermediary required to publish the aforementioned, it is also required to make “reasonable efforts” to ensure that its users do not host, display, upload, modify, publish, transmit, store, update or share any such information, a fantastically nebulous term, that will likely lead to a great deal of anxiety and sleepless nights in the industry.