Unconstitutional: Bombay High Court strikes down amended IT rules on fake news

In a setback to the Centre, the Bombay High Court on Friday struck down the amended information technology (IT) rules under which it wanted to set up a fact-checking unit (FCU) to identify fake and false content on social media.

Terming the IT Amendment Rules, 2023 — which amended the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 —“vague and unconstitutional”, the high court said the provision could have a “chilling effect” on individuals and social media intermediaries.

‘Tie-breaker judge’ gives verdict

• The verdict was delivered by Justice AS Chandurkar, a “tie-breaker judge”, after a Division Bench of Justice GS Patel and Justice Neela Gokhale delivered a split verdict in January this year
• Stand-up comedian Kunal Kamra, the Editors Guild of India, the News Broadcast and Digital Association and the Association of Indian Magazines had challenged the validity of the IT rules

The verdict was delivered by Justice AS Chandurkar, a “tie-breaker judge”, after a Division Bench of Justice GS Patel and Justice Neela Gokhale delivered a split verdict in January this year.

While Justice Patel struck down Rule 3, citing concerns about the potential for censorship of user content, Justice Gokhale upheld the validity of the amended rules on the grounds that these targeted misinformation with malicious intent while protecting freedom of speech. Thereafter, Chief Justice DK Upadhyay appointed Justice Chandurkar as a tie-breaker judge.

Stand-up comedian Kunal Kamra, the Editors Guild of India, the News Broadcast and Digital Association and the Association of Indian Magazines had challenged the validity of the IT rules.

When the Central Government itself was aggrieved by “fake, false and misleading” news or content, fact-checking by the FCU would “result in a unilateral determination by the executive (government) itself”, Justice Chandurkar said. The FCU, in a sense, was an arbiter in the government’s own cause, the HC noted.

“The expression ‘fake or false or misleading’ in the absence of it being defined is vague and overbroad and hence liable to be struck down,” it said. The amended rules violated several constitutional provisions, including Article 14 (right to equality), Article 19 (freedom of speech and expression) and Article 19(1)(g) (freedom to practise any profession), the tie-breaker judge said.

Justice Chandurkar declared unconstitutional Rule 3(1)(b)(5) — dealing with the establishment of the FCU, which was supposed to flag misleading or false online content concerning the government.

“If it was found that the impugned (challenged) rule was also vague and broad without any guiding principle to indicate the areas it sought to encompass, the possibility of such a chilling effect being felt would be an additional ground to hold it invalid,” the HC said. The single judge said Rule 3(1)(b)(5) sought to restrict the fundamental right guaranteed under Article 19(1)(a) by seeking to place restrictions that were not in consonance with Article 19(2) of the Constitution.

While Article 19(1)(a) grants the freedom of speech and expression, Article 19(2) allows the government or the legislature to impose “reasonable restrictions” on various grounds on this freedom.

“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 is not fake or false or misleading as identified by the FCU,” Justice Chandurkar said, adding, “The same is impermissible through the mode of delegated legislation.”

(With PTI inputs)