Setback for Centre as Bombay HC strikes down IT Rules changes for Fact Check Units
Bombay HC strikes down IT Rules changes to set up Centre's Fact-Check units
The Bombay High Court on Friday struck down the 2023 amendments to the Information Technology Rules, which authorised the central government to establish Fact Check Units (FCUs) to counter “fake and misleading” information about its affairs on social media platforms.
Single-judge Justice Atul Chandurkar, serving as the "tie-breaker" after a previous split verdict, ruled that the amendments violated fundamental rights enshrined in the Indian Constitution.
"I have considered the matter extensively. The impugned rules are violative of Article 14 (right to equality), 19 (freedom of speech and expression) and 19(1)(g) (freedom and right to profession) of the Constitution of India," the judge said. The expression "fake, false and misleading" in the Rules was "vague and hence wrong" in the absence of any definition, he added.
The decision followed a split judgment in January 2024 by a division bench of Justices Gautam Patel and Dr. Neela Gokhale.
Justice Patel had struck down the provisions, citing an infringement on free speech, while Justice Gokhale upheld their validity, asserting that concerns over potential bias in the FCUs were "unfounded." Justice Gokhale said the amendments did not impose any restrictions on free speech or entail penal consequences for users.
The 2023 amendments empowered the government to direct social media platforms to remove content deemed fake by the proposed FCUs.
Under the IT Rules, if the FCU comes across any posts that are fake, false, and contain misleading facts about the business of the government, it would flag the same to social media intermediaries. Once such a post is flagged, the intermediary has the option of either taking down the post or putting a disclaimer on the same. In taking the second option, the intermediary loses its safe harbour/immunity and stands liable for legal action.
The controversial rule, challenged by various petitioners including stand-up comedian Kunal Kamra, the Editors Guild of India, and other media bodies, was viewed as giving excessive power to the government to control narratives.
Kamra’s petition argued that the term “business of the central government” was too broad and vague, creating a chilling effect on free speech. He warned that intermediaries would likely remove flagged content to avoid penalties, undermining the platform's safe harbour protections.
Solicitor General Tushar Mehta, representing the central government, defended the amendments, arguing they were not intended to curb criticism or satire but to counter the spread of false information.
This ruling follows the Supreme Court’s earlier stay on the notification establishing the Fact Check Unit under the IT rules.