Naavi.org

While one section of the political parties propagate the view that Democracy is under threat in India, I have one question to ask the community whether the threat to Indian democracy is from our top Court itself?

Presently the Supreme Court is hearing a petition regarding the same sex marriage where the Constitution bench is trying to interpret the institution of marriage, what makes a person man or woman , what is the concept of marriage etc.

Supreme Court thinks that the questions it is addressing are questions of law. But it appears that the questions being addressed are questions of the Society. The institution of marriage is a societal order and the laws related to marriage address some peripheral issues that correct aberrations.

However, what the Supreme Court is trying to do is to interpret the societal concept of marriage itself and whether there is any rule that it has to be between two persons of different gender and why law should not be made to recognize same sex marriage.

In my view irrespective of the final decision that the five wisemen arrive in the end, the society will consider this an intrusion on its societal norms.

In the past Supreme Court was arrogant enough to interfere in the customs of the Shabarimala temple. Often it interprets the constitution though the Court itself is a creation of the constitution. There are judges who say that what is written in the constitution is not sacrosanct but what the judges interpret is sacrosanct. Supreme Court has created its own rule that certain parts of the Constitution is beyond the powers of the Constitution makers themselves since they form the “Basic Structure” forgetting that if some body had the power to create the basic structure, the same body should also have the power to change it.

Some time back some legislators changed the basic structure of the constitution to add words such as “Secular” into the preamble. No body argues whether this was or was not an alteration of the basic structure. Supreme Court needs to ponder over this.

In Physics there is a law called “Principle of Uncertainty” which says that we cannot measure the position and velocity of an electron simultaneously. If we try to measure the velocity, the position will change and if we try to measure the position, the velocity will change.

Similarly Supreme Court is a creation of the Constitution and if it interprets the Constitution, the inherent power of the Supreme Court will change. Supreme Court is not “God” and create its own interpretation of the Constitution under which its own existence remains.

Our Constitution makers gave some powers to the Supreme Court and left some powers to the legislature. There was no conflict in this arrangement since the executive and the judiciary had different roles. The executive would make the laws and the Judiciary would interpret.

However this system has been corrupted with the approach of the Judiciary that it assumes powers to interpret the constitution itself. Tomorrow if the legislature wants to change the Constitution, can Judiciary come in the way?

Sooner this aberration is corrected, it is better for the Indian society.

Though the Judiciary can pat its own back and say they are upholding the constitution by taking complete control of what should be there in the Constitution and What should not be there and how any word in the constitution has to be interpreted, we are aware when it comes to the Crunch, the Supreme Court does not support the real democracy.

We are all aware of what the Supreme Court did when Mrs Indira Priyadarshini alias Indira Gandhi imposed Emergency. Now we are seeing that the Supreme Court is silent on the Police atrocity in Punjab illegally arresting the Times Now Crew members including a lady journalist and held them custody for several days hoisting false cases.

This is the same Supreme Court which was willing to sit in the midnight to hear the petition of a terrorist. It saw human rights in that context but not in the context of Bhawana of Times Now.

It is therefore time for Supreme Court to voluntarily put a restriction on itself and respect the Constitution of India. Respecting constitution of India includes not usurping the power to re-write the Constitution.

But “Self Regulation” against absolute power is against human instinct and it requires a philosophical level maturity for any human being or an organization of human beings to voluntarily give up powers when no body can challenge them in usual course. Supreme Court needs to prove that it has reached that level of maturity to impose a self regulation on itself and vow not to impose itself above the Constitution and the Society.

I hope that the “Same Sex Marriage” case is a fit occasion for the Supreme Court to publicly announce that Supreme Court is part of the Society and does not interpret societal issues from its limited interpretation of words in a law and also that it respects the Constitution and the power of the legislature to make the Constitution even if it is not to the liking of a few lawyers.

In the absence of a national referendum on the same sex marriage issue, we need to wait for the people to vote in the Parliamentary election where Same Sex Marriage legislation becomes part of the manifesto of one of the political parties. Alternatively the Supreme Court should order a referendum on this issue through the Election Commission itself.

If the Constitutional Bench of the Supreme Court considers itself the “Constitution Re-Writing Bench” then we have dark days for Indian Democracy ahead of us not from the bad laws that the Government may make but by the bad interpretation of the law that the Supreme Court makes.

Today, we are exercising our right under the Constitution by exercising our franchise in the Karnataka State Elections. Of course, this is a vote for the Assembly election and not for the Parliament. But even the state assembly is part of the Constitutional structure of the Country and hence the vote in the state assembly is a vote for the strengthening of the Constitutional structure of India of which the Supreme Court is a part.

On this august occasion, the above thoughts crossed my mind and I wanted to share it with the citizens of India who are the real custodians of the Indian Constitution.

I hope that the Supreme Court takes this as a friendly advise from a senior citizen of India who has his own rights under the Constitution far beyond what any institution created by the constitution can assume for itself.

Naavi

Social Media developed over a period as a way of individual expression that could reach others on the Internet. Website itself was the first incarnation of this tool of expression. It was however a data publishing platform controlled by a person or an organization. Blogs were another version of the same with a greater focus on individual opinions.

When Twitter and FaceBook evolved, they became a platform for collection of views from different persons and probably like a friendly congregation for exchange of views.

Over a period businesses and thereafter the political influencers realized that thee social media platforms like Twitter and Face Book could be used to create opinions in the society for a given cause by consistently posting the information about a particular idea.

As we progressed, these opinion makers started using fake accounts or robotic accounts to post the views more to create numbers of likes or forwards/re-tweets. These unfair ways of creating fake accounts and fake messages got a boost with AI lead content creation and the Large Language Models which could read a message, create a related message either in support or in opposition and post them all like “Algo Posting”.

The Language models like ChatGPT which learn out of the content available on websites pick up this data and there is an amplification effect as the higher numbers of a similar opinion gets into the learning of the ChatGPT kind of software and in due course they become the popular view point on a topic. Just as today we refer to Google search when we want some information and believe what comes out to be true, the society will start believing what ChatGPT provides as a view point in most of the cases without realizing that ChatGPT learning has been poisoned through fake reports.

A few days back, the Democratic party President in USA namely Mr Joe Biden who became the President of USA by what mostly believe through manipulation of postal ballots had a discussion with both Google and Microsoft at the Whitehouse on the dangers of AI.

Probably he would have asked for their help in ensuring that Democrats win the next presidential election by manipulating the Search Engines and Language model responses.

As this doubt raises in the society, whether it is true or not, a perception gets created that what we see or hear in the web space is unreliable. It is not only the text information that can be manipulated by fake account handles but also the deepfake videos that may be put out. In situations like Elections, if a fake video message goes viral in the last minute, there is no way it can be countered by the other party in time.

Hence, perceptions will get crated and actions initiated on false perceptions before it can be corrected.

We in India is presently in hotspot and this kind of deepfake videos and deep fake voice messages can be expected in the Karnataka Elections in the last week of campaigning.

As far as the public is concerned, we put put a warning that they should not implicitly trust What’sApp messages or FaceBook posts or YouTube videos. But most of the people congregate to groups of like minded persons and every one in the group keep posting information that is non controversial and is acceptable to most of the members. As a result the groups become an “Echo Chamber” with every member rei forcing the views of the other person.

This echo chamber effect is dangerous from the point of view of the society as it has the effect of polarizing the groups based on their different political affiliations.

In order to guard against this effect, groups need to ensure that opposing view points need to be allowed to be expressed within the group subject to the conversation being civil and friendly.

Group admins need to balance out the expressions with appropriate moderation so that extreme views are not expressed to hurt other members of the group.

Currently the messaging groups are designed either to be broadcast type where only admins post or where any of the members can post without pre-moderation. Some platforms provide for editing and deletion but some donot. As a result some times views which even the person posting wants to genuinely regret and wants to withdraw remain on the platform causing damages all round. Admins may have the right to remove a content but it will become “Censorship”.

Hence a new system is required in the groups of WhatsApp or similar platforms for creation of “Breakout Rooms” where special occasion discussions which are outside the main theme of the group could be discussed.

Group admins also need to ensure that every member is identified on the group platform and no forward of messages in the group to outside groups takes place without moderation. If the breakout rooms are “Read Only” type, then it may be possible to restrict forward from the breakout rooms.

Alternatively, during situations like an impending election, the “Forward” facility may even be temporarily suspended so that views of the members of a private chat group remain within the group and does not leak to the outside world.

Probably these and more thoughts need to be debated when we discuss the new “Digital India Act” and build a “Trusted Internet Space”.

Naavi

Mumbai high court was instrumental in initiating the Section 66A removal from ITA 2000 in the Palghar girl’s case due to a wrong interpretation of the section.

A situation has come now where the petition of Mr Kunal Kamra is before the High Court and it is being pressed for immediate decision citing some urgency that “Free Speech in India is under threat”.

In the Palghar case, two girls who had “Liked” a FaceBook post were arrested by the Police and the issue under scrutiny in the Court was whether the “Clicking of the Like” button was equivalent to endorsing the view in the Post and also whether the Post was defamatory warranting an arrest of the two girls. The case got traction because the affected parties were Muslims and went all the way to Supreme Court which held that the arrest followed the Section 66A and had a chilling effect on freedom of expression an ordered the removal of the entire section without even making an attempt to “Read Down”.

A similar trigger happy situation is building up in the current case and a wrong decision may be made by the Court and it may issue at least an interim stay creating a wrong perception. Such a decision will put the Court under low light as ignorant of the law.

In the interest of preserving the reputation of the Court, it is necessary for us to highlight that the Intermediary Guidelines does not amount to a damage to the right to freedom of expression and the petition is based on a malicious propaganda.

I have explained the reasons in my previous articles and does not need a repetition.

However, I would like to highlight an article that has appeared today in Business Standard reproduced below.

Please note the article towards the end, lists the French and Australian Laws to a similar effect.

I urge the Government to take note of the International efforts to bring credibility to the media by weeding out Fake News and ensure that the Court does not come in the way of the efforts in this direction. If the Court allows the petition of Mr Kunal Karma it will indicate that the High Court is making a mistake similar to the Palghar Case and create a wrong precedence.

I wish lawyers in Mumbai bring this to the notice of the Court so that justice does not remain blind to the actual fact.

Naavi

In order to bring clarity to the impact of the Intermediary Guidelines on the activities of any Intermediary, we seek the views of all Cyber Law Aware professionals to take a few minutes to answer the 10 point poll below.

I will be happy if you can comment on this article indicating how many responses are true? which are false? and Why?

If possible, we shall send this survey result to the Mumbai High Court which will be hearing the petition of Mr Kunal Kamra. The High Court has sought an affidavit from the Government before April 19 to rule on the constitutional validity of the rule.

The ruling on this petition upholding the petition will have the effect of removing “Defamation” from the laws in India and will give a free license to any body to utter falsehood in the Social Media and any expectation of discipline in public speech would amount to “Self Censorship” and curtailment of “Freedom of Expression”.

In effect any ruling in favour of the petitioner would provide him immunity against Sections 499/500 of IPC.

We feel that such a decision is ultra vires the powers of the High Court as it will create a privileged position for Mr Kunal Kamra in law.

If upheld, every citizen of India will not only be free to make fun of every other person but also make fun of Courts or Judges because that also would be “Free Speech”.

Such a decision would create chaos in the Society and create a law and order situation in the country.

Hence the consequences of a hurried decision in this case including an interim stay would be considered as damaging the fabric of natural justice to the society.

I would like the Court to consider that the society is not an aggregation of criminals whose rights to free speech needs to be protected. Society is also an aggregation of honest peace loving citizens who are in larger numbers who have a right to truthful news.

Hence the Right of that part of the society which gets annoyed and disturbed by falsehood is as much important as the rights of the few stand up comedians who may be activists trying to use “Comedy” as a cover for their activism.

I request Cyber Law Specialists to give their views on the following questions:

Background:

Intermediary Guidelines issued under Section 79 of ITA 2000, Part II, Rule number 3(1)(b) states “the intermediary shall inform its rules and regulations, privacy policy and user agreement to the user…and shall make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that,— ..deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature 1[or is identified as fake or false by the fact check unit at the Press Information Bureau of the Ministry of Information and Broadcasting or other agency authorised by the Central Government for fact checking or, in respect of any business of the Central Government, by its department in which such business is transacted under the rules of business made under clause (3) of article 77 of the Constitution];

Based on the above the following interpretations follow:

Number	Question	Answer
1	The obligation of the Intermediary is to keep the user informed about the Do’s and Dont’s in the interest of the society	True/False
2	Reasonable efforts mean that the notice is prominently displayed and an affirmative confirmation is obtained from the user.	True/False
3	Take reasonable efforts to cause the user not to host, display, upload modify, publish, transmit, store, update, or share information does not mean forced taking down of content	True/False
4	Sub section 3 (1) (b)(v) means that the notification should include that the user does not intentionally communicate any misinformation which is patently false and untrue or misleading	True/False
5	Sub section 3 (1) (b)(v)means that the published policy and Terms of Service should include a note that the user does not intentionally communicate any misinformation which is identified as fake or false by the fact check unit at the Press Information Bureau of the Ministry of Information and Broadcasting or other agency authorised by the Central Government for fact checking or, in respect of any business of the Central Government, by its department in which such business is transacted under the rules of business made under clause (3) of article 77 of the Constitution	True/False
6	Sub section 3 (1) (b)(v) does not mean that the Factcheck unit to be appointed by the Government will issue Takedown notices	True/False
7	The FactCheck Unit at the Press Information Bureau or other agency authorized by the Central Government is primarily meant for fact checking in respect of any business of the Central Government	True/False
8	The FactCheck Unit at the Press Information Bureau or other agency authorized by the Central Government may be entrusted with the fact checking also in respect of any private website	True/False
9	The FactCheck can be clarified even by departments of the Government in respect of their specified business	True/False
10	The FactCheck unit presently run as a Twitter Hashtag #PIBFactCheck or any new unit to be designated under the guideline does not bar any other organization to run a similar service in the private sector.	True/False

‘Centre judge & prosecutor in its own cause’ — why Kunal Kamra has challenged amended IT rules in HC (msn.com)

Mr Rajeev Chandrashekar, MOS, MeitY in a recent interview, has reiterated that large part of misinformation in the media is against the Government and hence there is a need for a Government factcheck body which has been indicated in the recent Intermediary Guidelines.

The Editor’s Guild press note which has been widely circulated and supported by the Internet Freedom Foundation however implies in its communications to the effect that …

“The FactCheck unit proposed by the Government as part of PIB will issue take down notices and cause a chilling effect on the freedom of information”.

Taking a cue from this, a case has been filed in the Mumbai High Court that the notification is unconstitutional and has to be withdrawn. Without further verification, the High Court has proceed to register the case and issue notices.

To make it clear to all, I would like to state that :

The Intermediary guidelines only make it obligatory for Intermediaries to publish a notice, which in turn mandates its users not to post fake information on the user’s content space. It does not mandate take down of the content.

When the user is having a notice of the content being flagged as false because of the FactCheck publication or otherwise, it is left to his discretion to either retain the content or remove it.

The consequence of continuing to keep such content and not removing it or not providing a rejoinder, is that the user would be liable to be charged in a Court of law by any affected party.

If the misinformation is about the Government, then the affected party is the Government and it would either approach the Committee under section 69A of ITA 2000 or a Court for direction on the removal of the offensive content.

Public are also free to approach Section 69A authority instead of the Court at his choice.

The takedown obligation arises for the intermediary only whes such a competent body issues a notice to the Intermediary to take down the content either permanently or temporarily.

The order of the Section 69A authority is reviewed in 2 months and hence the order to take down if any is temporary. However injunction given by the Court often remains permanent until it is revoked by another challenge. When there is no challenge to the order of the injunction (Refer the case of Zone-H.org where an article of Naavi on bloggers news net was taken down incorrectly through a Supreme Court injunction) for whatever reason, the injunction remains permanently.

When an order is issued by a Court or a Competent authority, the matter is already under scrutiny of a judicial body and it is open to the Intermediary to Challenge the takedown order by representing itself as a party to the dispute.

If it takes such a stand, it would mean that it takes ownership of the content and defends it to the effect that “The content is true and the platform supports the user. Also it implies that the platform’s content check team is satisfied that the FactCheck is itself incorrect and hence the platform would not take down the material”.

Such a contention has been taken earlier by Twitter though it means that the platform is challenging a Judicial or a Quasi judicial or a Competent authority of the Government.

I wonder why the Editor’s Guild and more so the Internet Freedom Foundation is falsely interpreting the guideline and it’s fake view is being parroted by other publications including INS. This only appears to be a conspiracy to create a false narrative and mislead the public. Such organizations irrespective of their name associated with the media needs to be brought to book for their own misinformation campaign.

I wish that members of the Editor’s Guild and INS review their decision and come up with an apology for their mistake.

I also urge the Mumbai High Court to call out this fraud of a section of media when the Court takes the petition filed by the stand-up comedian (Kunal Kamra). It should also impose a stiff penalty on the petitioner for a speculative case.

The Court has the opportunity to consult Cyber Law Experts in Mumbai and understand the true import of Section 79 and the status of Intermediary Guideline as a suggestion to the Intermediary to notify the User to do or not do some thing.

If the Court is satisfied that the contention provided in this article is correct, it should state in its order that the Court is satisfied that the Intermediary Guideline does not amount to a take down order or causing a Chilling effect on the freedom of expression.

The Mumbai High Court was once wrong in the Palghar Girl’s FaceBook case where it ruled the “Publication” wrongly as a “Message” and came to the conclusion that Section 66A was an affront to the Freedom of Expression which finally got endorsed by the Supreme Court as Shreya Singhal Judgement and resulted in the deletion of Section 66A which was not a section related to publishing but was related to a Message (SMS or E Mail).

At the time Palghar Girl’s case was adjudged and Shreya Singhal judgement came out, (and even now), ITA 2000 did not have any restrictions on the publication of such messages. It had only restrictions related to publication of a content which was “Obscene” under Section 67,67A and 67B. Any publication of a content which was defamatory or otherwise false etc was not covered by Section 67 and hence could be challenged only under provisions of IPC. Section 66A was a section which addressed a pointed attack through a message on a person who could be threatened or annoyed etc., who could invoke relief under Section 66A through prosecution. This had no relation to “Public Speech” and hence the contention that it caused a “Chilling effect on Freedom of Expression was wrong”.

(PS: In the current context of the Intermediary guidelines, the Shreya Singhal case has been quoted for a different reason namely the upholding of Section 79 (1) and 79 (2) of ITA 2000/8 and reading down of 79(3))

I wish some of the Cyber Law Experts in Mumbai would implead in the suit and provide the necessary clarification to the Court even if the Government fails to do so effectively.

Naavi

The Copy of the latest Intermediary Guidelines