Bombay High Court strikes down Centre’s amended IT rules

The revised rules violate right to equality and freedom of speech guaranteed by Constitution, says ‘tie-breaker judge’; they had empowered the Centre to set up a fact check unit to identify ‘fake’ news

The Bombay High Court on Friday struck down the amended Information Technology Rules, 2023, which empowered the Centre to set up a fact check unit (FCU) to identify fake, false and misleading information about the government and its establishments on social media.

The “tie-breaker” judge, Justice Atul Sharachchandra Chandurkar, delivered the verdict on Friday after a Division Bench of Justices Gautam Patel and Neela Gokhale delivered a split verdict on January 31, 2024.

Justice Chandurkar said the Information Technology [Intermediary Guidelines and Digital Media Ethics Code] Amendment Rules, 2023, violated “Article 14 (right to equality), 19 (freedom of speech and expression) and 19(1)(g) (freedom and right to profession) of the Constitution”.

The expression “fake, false and misleading” in the rules was “vague and hence wrong” in the absence of any definition, he added. “The impugned Rule also results in a chilling effect qua an intermediary,” the judge said.  

Set up in 2023

In April 2023, the Ministry of Electronics and IT (MEiTY) established the FCU by amending the IT Rules, 2021. Subsequently, political satirist and stand-up artist Kunal Kamra, the Editors Guild of India, the News Broadcasters and Digital Association and the Association of India Magazines (AIM) through the Internet Freedom Foundation filed a writ petition in the Bombay Hight Court against the IT Amendment Rules, 2023, calling them “arbitrary, violating fundamental rights of speech and expression and vague”.

On January 31, 2024, Justices Gautam Patel and Neela Gokhale pronounced a split verdict, while Justice Patel ruled in favour of petitioners, Justice Gokhale had disagreed and upheld the amendment. The case was then placed before Justice Chandurkar, a third judge in February 2024, by the Chief Justice of the Bombay High Court. “There is a disagreement between us. We have passed separate judgments with divergent views. We were not able to concur,” Justice Patel said. 

In March 2024, the Supreme Court stayed the government notification establishing the FCU under the Press Information Bureau.

Defending the FCU, in July 2024, Solicitor-General Tushar Mehta, for the Union government, said the FCU would prevent people from spreading false information. “This approach represents the least restrictive method to counteract fake, false, and misleading information. Private companies and individuals also maintain fact-checking units and the government is similarly justified in providing accurate information to the public. In many instances, the government acts as the adjudicator and beneficiary, such as in land disputes. However, in this context, I do not act as the adjudicator. My (government’s) role is simply to identify and highlight instances of falsehood or misinformation,” he said. 

Representing the petitioners, senior advocate Navroz Seervai in February 2024, stressed upon numerous points that violated human rights under the amended rules. “There is already the Press Information Bureau, a government organisation that flags information about the government’s business, which it believes to be fake, false or misleading. Not one case has been pointed out by the Union since the split judgement, that the absence of the FCU has caused any prejudice to it. This makes out a strong case for why interim relief should be granted.”  

According to the new IT Rules (2023), the government can ask social media platforms such as Facebook, X, Instagram, Youtube to remove any content/ news related to the ‘business of the Central government’ that was identified as ‘fake, false, or misleading’ with the help of FCU. An organisation appointed by the government will be the arbiter of such content, and if intermediaries do not comply with the organisation’s decision, they may lose their safe harbour status under Section 79 of the IT Act, 2000. 

Ruling welcomed

The ruling was welcomed by digital rights groups, who had sharply criticised the the introduction of the fact check unit as an overreach by the government. “Governments should never be in the fact-checking business as that’s the job of independent media and civil society,” Mishi Choudhary, founder of the Delhi-based Software Freedom Law Center said in a statement.  

“We are grateful to the Association of Indian Magazines (AIM) for giving us this opportunity to fight for our fundamental right to freedom of speech and expression in the online space,” the Internet Freedom Foundation, which assisted plaintiffs in the challenge, said in a statement on X, formerly Twitter.  

Kunal Kamra, the comedian who also filed a challenge to the FCU, alongside the AIM and the Editors’ Guild of India, said on X, “They may keep trying, but we the people of India will always uphold the Constitution to humble those who are drunk on power,” alongside an image of the preamble to the Constitution. 

(With PTI inputs)

Published - September 20, 2024 05:44 pm IST