Opinion: It isn’t surprising that guidelines on fake news were scrapped – they were bad in law

In an attempt to contain the spread of fake news, the Ministry of Information and Broadcasting on Monday issued new guidelines aimed at punishing offending journalists by suspending their accreditation privileges. But the circular was withdrawn less than 24 hours on Tuesday, with reports claiming that Prime Minister Narendra Modi had intervened to make it clear that “ the matter should only be addressed in the Press Council of India.”

According to Monday’s circular, once a complaint of fake news had been received by the regulators, the accreditation of the journalist in question would be “suspended till such time the determination regarding the fake news” was made by the Press Council of India for print media and the News Broadcasters Association for the electronic media.

Journalists accredited by the Press Information Bureau have privileged access to Parliament, government offices and official events.

If the charges were confirmed, the journalist would lose accreditation for six months for the violation, one year in case of a second and permanently in case of a third.

The prime minister’s swift intervention isn’t surprising. After all, the guidelines were bad in law. To begin with, they overturned the cardinal principle of justice that a person is innocent until proven guilty. They also failed in basic tenets of lawmaking, in the sense that they were arbitrary in scope and disproportionate in penalty. As a consequence, they violated Constitutional principles and undermined the freedom of press that is intrinsic to the freedom of speech and expression guaranteed under Article 19 (1) (a) of the Constitution. Should the guidelines actually have been implemented, they would certainly have been challeged in court – and overturned.

Here are some of the key flaws of the guidelines.

1. Bad lawmaking

When it comes to framing laws and guidelines, there it a clear process to ensure that they do not suffer from arbitrariness, which is a factor in determining Constitutionality. The first step is to hold consultations with stakeholders, which the Ministry of Information and Broadcasting did not do. Startlingly, the idea of holding consultations seemed to have dawned upon Information and Broadcasting Minister Smriti Irani only after the prime minister intervened. In a tweet on Tuesday, Irani said those who have suggestions could meet her.

Besides, any guideline that has a punitive aspect has to define a violation in clear terms. However, no law in India defines what constitutes “fake news”. When the subject of violation itself is not defined, what parameters would the regulatory agencies have used to confirm a case of fake news? This would have led to arbitrary and highly subjective analyses of news items to determine if they were fake. The first part of any law is always the definition of key terms as this is where most disputes usually occur.

2. Violating basic principle of criminal justice

The provision in the guidelines to suspend the accreditation of the journalist in question once a complaint had been registered undermined the basic principle of the justice system that a person is innocent until proven guilty. The guidelines did not state whether any initial screening would be conducted to weed out motivated and patently false complaints before it was sent to the regulatory agencies.

Even if the journalist was later absolved of charges, there was no way to undo the penalty that had been imposed when the complaint was registered. The initial suspension could be retrospectively cleared in the records, but the actual suffering of the suspension could never.

3. Violation of freedom of press

While the press release on Monday said that the Press Council of India and the News Broadcasters Association would deal with the complaints, it did not state whether these agencies had been consulted before the scheme was framed. The government set the parameters of the penalty and has merely asked the regulators to implement it. This scheme could only be seen as an encroachment of press rights by the state. The Press Council of India and the News Broadcasters Association are envisaged as self-regulatory bodies consisting of members of the profession. Hence, any regulatory guidelines have to come from within and not be imposed from outside.

Since the guidelines provide no clear answers to questions such as objectives of the guidelines and the definitions of the subject mentioned, it would squarely fall under what the Supreme Court has termed as “arbitrary and unreasonable” restriction. The Supreme Court has often held that restrictions imposed on the fundamental rights guaranteed under Article 19 of the Constitution must not be “arbitrary, unbridled, uncanalised and excessive” and also not unreasonably discriminatory. The “uncanalised” part is crucial here, as the guidelines were clearly unguided and without proper rules and norms.

The penalty under the guidelines would have violated press rights because suspension of accreditation would lead to denial of access to certain events like government press conferences and Parliament. This inhibits the right to know, a key part of right to free speech, expression and press.

If it had thought the process through, the government should have moved Parliament with amendments to the Press Council of India Act by incorporating the definition of “fake news”, the process of determining what a “fake news” is and included penalties by elaborating on the hearing and appeal processes. By merely framing guidelines for accreditation through a press release, the Ministry of Information and Broadcasting tried to circumvent the parliamentary process essential to safeguarding fundamental rights.