Bombay high court strikes down IT rule to set up fact check unit
The case was referred to the third judge after a division bench of justice Gautam Patel and justice Neela Gokhale delivered a split verdict on January 31.
MUMBAI: The Bombay high court on Friday struck down provisions that empowered the central government to set up a “fact check unit” to take down online content deemed fake or misleading, as the third judge in his referral verdict ruled against the 2023 amendments to the Information Technology Rules.
The matter was referred to the third judge after a division bench of justice Gautam Patel and justice Neela Gokhale delivered a split verdict on January 31. Justice Patel struck down the 2023 amendments, holding the same to be infringing constitutional principles, whereas justice Gokhale upheld the validity of the rules and dismissed the petitions.
Justice AS Chandurkar on Friday agreed with the view taken by justice Patel that Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2021(that was amended in 2023) was unconstitutional.
Friday’s ruling came on a batch of petitions filed by stand-up comedian Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines, contending that the amended Rules 3(i)(II)(A) and (C) of the Information Technology Rules, 2023, were ultra vires to Section 79 of the Information Technology Act, 2000 and violative of the principles enshrined in Articles 14, 19(1)(a) and 19(1)(g) of the Constitution of India.
The petitioners contended that the rules cast an obligation upon intermediaries of making “reasonable efforts to cause users to not publish, display, upload or share information in respect of business of the central government that is identified as fake, false or misleading by such fact check unit of the Central Government as the Ministry (Ministry of Electronics and Information Technology) may specify.”
According to them, the Rules infringed the freedom of speech and expression, as the term business of the central government was broad and vague, and the vague terms had been used to “create a chilling effect where intermediaries will resort to take down any information flagged by the fact-checking unit, rather than risk losing safe harbour.”
During the pendency of the petitions, the central government had made a statement that they would not notify the FCU and continued the statement till the split verdict. As, after the split verdict, the Central government refused to continue the statement and therefore, Kamra and the associations had applied to justice AS Chandurkar to whom the matter was referred to for final decision, for a stay on notifying FCU.
To be sure, justice Chandurkar on March 11 rejected a plea to stay the amended rules, observing that the apprehension of the petitioners that they would be targeted because of their political discourses or comments, political satire etc. on social media, if FCU was allowed to be notified, was taken care of by the statement made by the Solicitor General of India that “the rule intends only to deal with government business in its strict sense and that it did not aim or attempt to prevent satire, sarcasm or political comments. Political views are not sought to be muzzled.”
A bench headed by Chief Justice Dhananjaya Y Chandrachud later stayed the implementation of rules after the government went ahead to notify the fact check unit, saying there was a “prima facie case” to stay the move.
“The challenge to Rule 3(1)(b)(v) involves serious constitutional questions. The impact of Rule 3(1)(b)(v) on the fundamental rights of freedom of speech and expression protected under Article 19(1)(a) would fall for analysis by the high court,” said the top court’s bench, which also comprised Justices JB Pardiwala and Manoj Misra.