Why Bombay High Court termed IT Rules amendment 'unconstitutional'?

Justice AS Chandurkar, in his opinion against the amendments to the IT Rules, cited multiple constitutional violations, including overreach on free speech and equality, as well as the vagueness of the rule's scope.

In Short

• Bombay High Court strikes down IT Rules amendment
• Amendment allowed Centre to set up Fact Checking Units
• Judge cites violation of freedom of speech, equality

The tie-breaker judge of the Bombay High Court, Justice AS Chandurkar, on Friday struck down the amendment to the IT Rules that empowered the Centre to set up a Fact Checking Unit to debunk ‘false news’ about the government. His 99-page opinion highlights violations of constitutional provisions and other concerns.

Here are nine reasons why the bench decided that the IT Rules amendment introduced by the Centre in 2023 does not meet the test of the Constitution.

VIOLATION OF FREEDOM OF SPEECH

The judge said that the right to freedom of speech does not include a “right to the truth,” and it’s not the State’s job to ensure that citizens only receive information that is not fake, false, or misleading, as identified by Fact Checking Units. The challenged Rule 3(1)(b)(v) tries to limit free speech by imposing restrictions that don’t align with the Constitution.

VIOLATION OF RIGHT TO TRADE

A piece of information is not subjected to question under the challenged Rule 3(1)(b)(v) when published in the print media, but it is in digital media is a relevant aspect. There is no basis for determining why information about the central government is considered fake, false, or misleading online but not in print. This violates the right to practice any profession, as guaranteed under Article 19(1)(g) of the Constitution.

VIOLATION OF RIGHT TO EQUALITY

The Fact Checking Units are responsible for deciding whether any information about the central government is fake, false, or misleading. This means the government itself makes the decision, acting as both judge and party. The claim that their decisions can be challenged in a constitutional court does not provide an adequate safeguard against this.

RULE CREATES 2 SEPARATE AREAS

For issues unrelated to the central government, the focus is on making the users aware about false or misleading information. But for issues related to the central government, the focus is on whether social media platforms allow content that the government’s fact-checking team has labelled as fake, false, or misleading.

The amended Rule creates two separate areas: one for non-central government matters and another specifically for central government business.

VAGUE AND OVERBROAD

Since the IT Rules 2021 do not provide clear guidelines on what is considered "fake, false, or misleading," the impunged Rule in question is vague and too broad, making it likely to be struck down.

The impugned Rule beyond the scope of IT Act, 2000

The rule creates new legal provisions beyond the scope of the 2000 Act and doesn't align with what is allowed under Sections 69A or 79 of that Act. It also tries to impose restrictions beyond what the Constitution allows and is clearly unfair because it doesn't follow the 2000 Act's guidelines.

EFFECT OF AMENDED RULE

In this case, the impugned Rule requires social media platforms to avoid hosting information that is patently fake, false, or misleading, but these terms are not clearly defined. If they don't comply, they risk losing legal protection. Since the rule is vague and broad, it could have a "chilling effect" by discouraging free expression.

READING IT DOWN DOESN'T MAKE LAW VALID

Ignoring the word "misleading" in Rule 3(1)(b)(v) and focusing only on "fake or false" information wouldn't be a valid way to fix the rule. The Supreme Court has said that removing parts of a rule like this is not allowed. Simply narrowing the rule’s scope won’t make it valid. The rule is still vague and too broad. Even if one government applies it fairly, there’s no guarantee the next government will do the same.

ASPECT OF PROPORTIONALITY

There are not enough protections to prevent misuse of the rule, which could interfere with fundamental rights. Since the rule cannot be fixed by narrowing its scope, the government's claim that it used the least restrictive way to stop the spread of "fake, false, or misleading information" cannot be accepted.