Time for the Rule of Truth to Trump the Rule of Law

The government recently amended the Intermediary Rules under the Information Technology Act. As such, media and social media intermediaries will have to take down any information about the “business of the central government” that has been “fact-checked” and found “false” or “misleading” by a designated government agency. The failure to adhere to the take-down obligation will result in the intermediary losing its “safe harbour” and legal immunity from any third-party action, and would also be separately actionable under the IT Act for violation of the rules. While it is tempting to understand and reason the desirability and validity of this amendment, perhaps there is another frame to place it in.

Law draws its legitimacy from its promise to best approximate the truth. The State adores the law, for it has great use for this promise of approximation. The language of the law has many convenient devices – presumption, [legal] fiction, finality, closure and even justice – that help steer attention away from, and on occasion, undermine, the truth. The State has also appropriated and co-opted the idea of the argument, which belongs in the domain of truth, so much so that our imagination locates it more in the arena of the law.

Recent Indian legal history is a fascinating study of the creative employment of these devices in substituting in place of truth what the State states. Aadhaar approximates the truth of who you are to what has been entered in the database. Similarly, the NRC does that to where you were born and where your parents were born (which should not have been remotely relevant). The law on grant of bail under the Unlawful Activities Prevention Act and the Prevention of Money Laundering Act similarly approximates the truth to what the prosecution claims.

Also read: The New IT Rules Herald India's 'Single Source of Truth' Governance

The IT Rules amendment is another item in that series. This amendment is made to the intermediary rules that came in 2021 and brought in an entire regulatory regime and ethics code for all online news media, which the Bombay and Madras high courts found fit to stay, following legal challenges filed by digital news organisations contending that these amounted to government interference in and violation of press freedom.

The present measure attempts to approximate the truth on the falsity of any information to what the government’s fact-checking unit says. The justifications for this measure are easy – the government knows the best about its own business and can provide the best approximation of the truth, and it is designed to reduce misinformation in circulation and advance the cause of informational justice.

Challenges to this amendment have already been filed, and the courts will no doubt hear familiar arguments premised on freedom of speech, the Supreme Court's past precedents on why the government should not be in the business of regulating or controlling the press, constitutional supremacy, chilling effect, unreasonableness of the restriction, and the rule of law. The top court may also hear arguments from some quarters on why social media platform autonomy is desirable for the fulfilment of the right to free speech. The State is likely to chant reasonable restrictions, misinformation campaigns leading to issues of public order and national security.

However, the courtroom is unlikely to expose the full extent of the malice in the measure. For instance, there is already legislation that deals with informational justice and the truth about the “business of central government”. And that is the Right to Information Act. This government’s constant endeavour to discipline and dismantle that law to increasingly hide and decreasingly reveal information is the opposite of the “constant endeavour” that it is supposed to press under Section 4 of that act. This obvious duplicity will never feature in the judgment that decides those challenges. The law has again approximated the truth of what is the object of a legislative measure to what the state states in that law.

What is also striking is the choice of the legal device used – even when less drastic options exist.  The amendment could have, for instance, made it necessary for the intermediary to factor in and consider as relevant, the government “fact-check” in determining whether to take down content; or it could have mandated the intermediary to presume the fact-check result is correct unless it records reasons why it has considered the presumption to have been rebutted. These nicer options are somehow exclusively used when the State is the decision maker.

Having said that, the measure does betray a feeling of control-deficit within the government. This indicates that there may perhaps be spaces for the process of public reason which remain unhacked. These may very well contain the means to rescue the truth from the law and its institutions, which continue to privilege what the State states over the truth by bestowing trust that must only be earned. The rule of law has thus far been central to the idea of democracy. It is perhaps time for the rule of truth to take over.

Prasanna S is a Delhi-based lawyer.

This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been republished here. To subscribe to The India Cable, click here.

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