Bombay HC scraps IT rules on govt fact-check unit
The tiebreaker judge noted that the provisions empowered the government to decide what constitutes “false” or “fake” news without clear definitions
The Bombay high court on Friday struck down crucial provisions of the 2023 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, which empowered the government to set up fact-check units (FCUs) to identify and flag false or fake news against the government on social media and other online platforms.
The decision came after a split verdict between justices Gautam S Patel and Neela Gokhale in January, with justice AS Chandurkar on Friday delivering the tiebreaking opinion that sided with justice Patel’s views on all contested points, ultimately ruling against the amendments. Justice Chandurkar held pertinent rules on the establishment of FCUs as unconstitutional and violative of the guarantee of free speech and expression.
The tiebreaker judge noted that the provisions empowered the government to decide what constitutes “false” or “fake” news without any objective criteria, clear definitions or procedural safeguards, which was bound to have a “chilling effect” on freedom of expression.
While quashing the impugned rule by 2-1 majority, justice Chandurkar was unequivocal in his defence of free speech, stating that the amendments granted the government unbridled power over the flow of information, amounting to indirect censorship. He added that the scope and applicability of the expression “fake or false or misleading” under the impugned rule is “vague and overbroad”, besides empowering the government to become the final arbiter in its own cause for deciding which information was “fake or false or misleading”. The judge added that the rule under challenge failed to meet the test of “proportionality” that any restrictive executive function must satisfy.
The judgment is a setback for the government’s regulatory ambitions in the digital sphere, and marks a significant milestone in the ongoing debate over digital freedoms, government regulation and the rights of individuals to express dissent in the online realm. While the Bombay high court ruling is a victory for free speech proponents, the legal battle is far from over. The government is likely to appeal the decision to the Supreme Court, according to people aware of the matter.
To be sure, the press information bureau (PIB) under the information and broadcasting (I&B) ministry created an FCU on November 29, 2019. On March 20, in the run-up to the general elections, the Union government notified the FCU as the agency under the contentious 2023 amendments. This decision came after the reference judge in the Bombay high court had given the liberty to the Centre to notify the FCU. But the notification was stayed by the Supreme Court the following day after petitioners in the Bombay high court case moved it, citing the hearings at the appellate court. The Supreme Court directed that the FCU will not be made operational until the high court finally decides the matter.
The case revolved around the constitutionality of 2023 amendments introduced to the IT Rules, 2021, specifically Rule 3(1)(b)(v), which authorised the central government to establish FCUs tasked with identifying and flagging “false, fake, or misleading” information about the government on social media and other online platforms. The rule also imposed a duty on intermediaries like social media platforms and news websites to take down content flagged by these units, effectively granting the government sweeping powers to determine the truthfulness of online content.
The amendments were challenged by petitioners, including comedian Kunal Kamra, Editors Guild of India, Association of Indian Magazines and the News Broadcasters & Digital Association, on the grounds that these provisions violated the constitutional right to free speech under Article 19(1)(a) and amounted to unchecked censorship, undermining the principle of independent journalism and public discourse. The petitioners argued that the rules provided an overbroad and vague standard for determining what constituted “false” or “fake” news, without any statutory guidelines, safeguards or independent oversight.
The government, through solicitor general Tushar Mehta, defended the provisions by stating that it is best positioned to fact-check misleading and false information about its work. The law officer also argued that the government’s efforts to regulate misinformation are essential in an age of rampant online disinformation, adding there was no constitutional right to spread fake or misleading news.
Initially, the matter was heard by a two-judge bench comprising justices Patel and Gokhale, who delivered a split verdict. Justice Patel deemed the rules unconstitutional, stressing that they granted arbitrary powers to the executive without any checks and balances. Justice Gokhale, however, upheld the rules, arguing that the government’s actions were necessary to combat the rampant spread of misinformation, particularly in a digital age where false narratives can have significant real-world consequences.
Owing to this divide, the matter was referred to justice Chandurkar, whose opinion became the tiebreaker. Justice Chandurkar’s opinion sided entirely with Justice Patel’s stance, holding that the amended rules, particularly Rule 3, violated the constitutional guarantee of free speech and expression.
Noting that the impugned provisions cannot trace their legitimacy to “reasonable restrictions” to the free speech rights, justice Chandurkar supported justice Patel’s view that under the right to freedom of speech and expression, there is no further “right to the truth” nor is it the responsibility of the State to ensure that the citizens are entitled only to “information” that was not fake or false or misleading as identified by the FCU. He further noted that no such fact-checking for materials printed in newspapers or magazines was authorised under the IT rules, thereby imposing unreasonable and discriminatory restrictions in the digital sphere.
According to justice Chandurkar, the exercise proposed under the amended IT Rules would result in a “unilateral determination by the executive” regarding any information with regard to the business of the central government.
“The FCU in a sense is the arbiter in its own cause,” held the judge, adding that absence of any indication as regards the manner of identifying fake or false or misleading information and there being no guidelines whatsoever in that regard renders the expression “vague or false or misleading” to be “vague and overbroad”.
Highlighting that the potential for misuse of these powers posed a chilling effect on freedom of speech and expression, justice Chandurkar held that the impugned rule also results in a “chilling effect” with respect to an intermediary.
“The impugned rule requires an intermediary not to host information that is patently fake or false or misleading which terms are undefined and doing so could result in deprivation of safe harbour...Thus, when the totality of the challenge is considered and all grounds of attack are taken together, the fact that the impugned Rule also results in a chilling effect qua an intermediary would render it invalid,” he pointed out.
As per the IT Act, not following legal obligations laid down by the government can rob a social media “intermediary” of what is known as safe harbour status that provides them immunity from the legal repercussions of the speech made by their users.
Justice Chandurkar also held that the impugned rule does not satisfy the proportionality test especially when it seeks to abridge fundamental rights. “Absence of sufficient safeguards against the abuse of the Rules that tend to interfere with the aforesaid fundamental rights are shown to be absent. Having found that the validity of the impugned Rule cannot be saved by reading it down as urged, the contention raised on behalf of the Union of India of having adopted the least restrictive mode to prevent the spread of “fake or false or misleading information” by relying upon the decisions in that regard cannot be accepted,” his opinion stated.