Editorial 1: A case of nothing but patent censorship

Context

The Bombay High Court ruling on the amendment made to the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is a verdict in defence of the right to free speech.

Introduction

On September 20, 2024, Justice A.S. Chandurkar of the Bombay High Court broke a tie that emanated out of a previously split verdict and delivered a ruling in defence of the right to free speech. He declared unconstitutional an amendment made to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules). This law, had it been allowed to stand, would have given the Union government an Orwellian carte blanche to decide for us how any news about its operations ought to be carried on the Internet.

The provision in question

• Rule 3(1)(b)(v): casts an onerous obligation on intermediaries — companies that facilitate the use of the Internet, ranging from our service providers to social media platforms.
• If the Union government’s “Fact Check Unit” (FCU): which had been created under the amendment, identified any reporting on the government’s business as fake, false, or misleading, intermediaries were required to make reasonable efforts not to host, display, upload, or publish such information.
• Cost of ignoring a directive: they stood to lose their “safe harbour” — an immunity from liability which is integral to the design of the Information Technology (IT) Act, 2000 and the protections it offers both to businesses and to the larger public’s right to free expression.
• The Problem of Fake Information and State’s Role: There can be little doubt that fake and misleading information on the Internet is a problem.
  • Its proliferation, given the medium’s influence, ought to be a matter of serious public concern.
  • To that end, the state has a legitimate interest in ensuring that it finds solutions towards its tackling.
  • But any measure that it takes has to be found within the Constitution’s boundaries. 

 

Petition and response 

• The rule breach: The petitioners in the Bombay High Court argued that the introduction of Rule 3(1)(b)(v) indubitably breached those walls of protection.
• The state power, through the amendment, effectively appropriated the power to determine what information was fake or misleading.
  • It did so in a manner that maintained no fidelity to the slew of restrictions that the Constitution otherwise permits on free speech.
  • What is more, the state, they added, had failed to so much as acknowledge that there existed other, less intrusive measures that could have been adopted to counter the problem. 
• Centre’s arguments: In response, the Union government made two primary arguments.
  • First, it argued that the law was anything but coercive, and that an intermediary was by no means compelled to act on the FCU’s instructions.
  • To the contrary, intermediaries were always at liberty to contest a loss of safe harbour in appropriate proceedings.
  • Second, no person enjoyed a licence to spread fake or misleading information and there was no constitutional protection that could be accorded to untrue speech.
  • Therefore, according to the state, the Rule fell well within the government’s powers to regulate online expression. 

Division Bench’s Split Verdict

• The judges on a Division Bench of the High Court had come to differing conclusions on the Rule’s validity in January.
• Justice G.S. Patel found the provision ultra vires. In his reading,
  • the Rule was vague and overbroad;
  • was disproportionate to its avowed objective;
  • and imposed on intermediaries a chilling effect that had a direct bearing on a citizen’s right to equal treatment and free speech.
• Justice Neela Gokhale disagreed. She concluded that the intermediary’s loss of safe harbour provided no direct threat to a citizen’s right to freedom of expression. 
• Tie-breaking opinion and safe harbour: The tie-breaking opinion rejected the Union government’s defence of the Rule.
  • In doing so, it deferred to Justice Patel’s opinion on the importance of safe harbour and the chilling effect that the Rule was likely to have on intermediaries. 

 

Intermediaries and safe harbour 

• Section 79 of the IT Act, right from its inception: contained an exemption, releasing intermediaries from liability for any third party information hosted by them so long as they discharged due diligence in observing their duties under the law.
• This safe harbour: would however, be lost if the intermediary had “actual knowledge”, or received any communication, among others, from a government agency, that their resource was being used to commit an unlawful act. 
• The logic here was simple enough: to allow entities such as Facebook, X, and WhatsApp to act free from the responsibilities vested in traditional publishers.
  • After all, these platforms merely hosted and transmitted material and did not by themselves act as writers or producers of that content.
  • Therefore, if they were to face liability for what others posted on their sites, the threat of prosecution would be so severe as to effectively incapacitate the Internet’s very working. 
• Free speech: This basic foundational reason for safe harbour immunity also worked parallelly in promoting free speech on the Internet.
  • Often, the intermediaries themselves do not have any direct interest in the information disseminated by users on their platform.
  • But should they cede to external pressure, it is the users’ right to free expression that is at stake. 
• In the case of Rule 3(1)(b)(v), were the FCU to write to an intermediary pointing out that some information about the central government on its portal was fake, the company’s choice would have been limited.
  • It could have either taken down the information flagged, or it could have stood up for the user’s right to free speech, sacrificing, in the process, its own safe harbour. 
• Hobson’s choice for intermediaries: “No intermediary is quixotic enough to take up cudgels for free speech.
  • Compromising one particular chunk of content is a small price to pay; better the user content is thrown under the bus than having the bus run over the entire business.” 

Government’s second argument and free speech doctrine

The government’s second argument was easier to dismiss.

•  Limitations: No doubt, the traditional idea that the right to free speech ought to be built on a notion of a marketplace of ideas — where one believes that an open clash of views would lead to the correct, truthful opinion coming out — has its limitations.
• Recruitments: Free speech, properly understood, depends on a number of attendant requirements.
• Its exercise can be hampered, among other things,
  • by a person’s access to resources,
  • economic and social conditions, and
  • varying equations of power and authority. 

Free speech and restrictions 

• Defining tolerance limits: But insofar as our jurisprudence on free speech has been built on any doctrine it is this it is not up to anyone, least of all the state, to determine what kinds of expression ought to be tolerated.
• Article 19(2): The only restrictions available are those explicitly contained in Article 19(2) of the Constitution, which includes matters such as defamation, public order, friendly relations with foreign states and the security and integrity of India. 
• Our guarantee of free speech: contained in Article 19(1)(a), can be traced to both instrumental and intrinsic values.
  • The first, for example, because an uninhibited discussion of ideas, is likely to lead to better politics.
  • The second because free speech matters not only for the results it produces but also for the recognition it accords to citizens as equal moral beings.
  • That is, that our dignity and our autonomy as human beings depends on our ability to exercise a right to free conscience and free thought. 

Neither of these justifications advocate absolutism. There are legitimate grounds on which free speech can be reasonably constrained. Those grounds, in our case, are contained in Article 19(2). 

Conclusion

There is here no clause sanctioning a limitation on speech that is false, misleading, or untrue. Yet, through the Rule, the government seized a power to act as the ultimate arbiter on what manner of information about its own actions ought to be seen as constituting the truth. In doing so, it failed to locate itself within any of the permissible categories expressly stipulated under the Constitution. Therefore, the law, as the Bombay High Court has correctly recognised, is nothing but patent censorship. Allowing it would erode the fundamental principles embedded in the foundation of our democracy.

Editorial 2: The net result will be poor doctoral research

Context

Using NET scores as the sole criterion for PhD admissions in India is a step backwards.

Introduction

The use of the National Eligibility Test (NET) as a primary criterion for PhD admissions in India has sparked significant debate within the academic community. Traditionally, the NET has served as a qualifying examination for Junior Research Fellowships (JRF) and in determining eligibility for assistant professorships. However, its growing role in determining PhD admissions raises hard questions about its efficacy in identifying true research potential.

Limitations of the NET

• The nature of the test, which is entirely multiple-choice question based (MCQs), predominantly assesses lower-order cognitive abilities such as memory and recall.
• This approach, while useful in certain contexts, falls short in evaluating the critical thinking and analytical skills essential for successful doctoral research.
• PhD research demands
  • a deep engagement with complex ideas,
  • the ability to critique existing knowledge, and
  • the creativity to contribute to original research.
• Limitations of factual approach: These skills, crucial for academic success, are largely overlooked in the NET’s current format.
  • In disciplines such as literature, social sciences and the humanities, where interpretation and analysis are key, the emphasis on factual recall through MCQs reduces intricate subject matter to trivial questions.
  • For instance, asking candidates to identify specific details from literary texts or historical events does little to gauge their ability to engage with broader theoretical concepts or develop nuanced arguments. 

Disadvantage for marginalised communities 

• Vulnerable sections more prone: The consequences of this approach are particularly pronounced for students from marginalised communities.
  • As reported by this daily, the reliance on NET scores disproportionately disadvantages these students, who often face greater barriers in accessing the resources needed to prepare for such examinations.
• Cost burden: The high cost of coaching, which has become almost essential for passing the NET, exacerbates this inequality.
• Talent exclusion: As a result, many talented students from these backgrounds may be excluded from pursuing PhD programmes — not because of a lack of intellectual capability but because of systemic barriers that the current admissions process fails to address. 

Will affect institutional autonomy 

• Threat to autonomy: The centralisation of PhD admissions through the NET poses a significant threat to the autonomy ofhigher educational institutions, which have traditionally played a pivotal role in selecting candidates based on unique criteria such as
  • research proposals,
  • interviews, and
  • discipline-specific tests
• Faulty approach: This one-size-fits-all approach undermines the diversity and innovation that are essential to academic research.
• Need for integrity in autonomy: The autonomy of universities to shape their research programmes and recruit candidates who align with specific institutional and disciplinary needs is crucial in maintaining the integrity and the quality of higher education in India. 

Concern over centralisation

• Erosion of autonomy: Recent experiences with centralisation, such as the introduction of the Common University Entrance Test (CUET) for undergraduate admissions, have already sparked fears about the erosion of institutional autonomy.
• Reducing role of universities: The new directive takes this centralising approach further, diminishing the role of universities in shaping their research programmes and faculty recruitment.
• Concern of homogenisation of innovation: Critics argue that such centralisation could lead to a homogenisation of academic standards, thereby stifling the innovation and the diversity that are the lifeblood of scholarly research. 

Preparation for Doctoral Research

• Low sills: The current system, by laying emphasis on such a limited range of skills, fails to prepare students for the demands of doctoral research.
• PhD candidates are expected to:
  • contribute original insights to their fields,
  • publish in peer-reviewed journals, and
  • engage in scholarly discourse.
• Need for critical analysis: These tasks require not only subject knowledge but also strong analytical abilities, creativity, and effective communication skills.
• NET’s incompetence: The NET, however, does little to foster these competencies, instead encouraging rote learning and a superficial engagement with the subject. 

Global Lens on PhD opportunities

• Brain drain: As India aspires to become a global leader in education and research, it is worth considering why so many students are increasingly opting to pursue PhDs abroad.
• Gaps in Indian system: The exodus of bright minds to foreign institutions can be seen as a response to the limitations of the domestic system.
• Need for standardisation: the emphasis on standardised testing such as the NET may stifle the creativity and the critical thinking that are nurtured in more holistic and flexible admission processes elsewhere.
• Over centralisation: If the current trend continues, with a rigid, centralised approach to PhD admissions, we may see even more students seeking opportunities overseas — where their research potential is evaluated more comprehensively, and where academic environments are more conducive to fostering innovation and diversity in scholarship. 

 

Way forward: A narrowing of inquiry 

Further, the growing reliance on NET scores as the primary criterion for PhD admissions could inadvertently narrow the scope of research in India. Research thrives on diversity — of thought, methodology, and perspective. By funnelling all PhD aspirants through a standardised test that values rote memorisation over critical thinking, we risk cultivating a generation of scholars more adept at passing examinations than at pushing the boundaries of knowledge. This narrowing of academic inquiry threatens to limit the development of original ideas and innovative research that are critical for progress in any field of study. 

Conclusion

The challenge, then, is not merely to select candidates who can excel in standardised tests, but to cultivate a system that recognises and nurtures the full range of talents required for ground-breaking research. By doing so, India can retain its brightest minds and ensure that its higher education system remains dynamic, inclusive, and globally competitive. To maintain its position on the global academic stage, India must embrace a more holistic approach to PhD admissions — one that values creativity, critical thinking, and the ability to contribute to the complex, multifaceted world of academic research and one that ensures student engagement,