Mumbai: The Bombay High Court Friday struck down a 2023 amendment to the Information Technology Rules that empowered the Centre to set up a fact-checking unit (FCU) to identify “fake and misleading” news against it on social media platforms.
After a division bench delivered a split verdict in January, “tie-breaker judge” Justice Atul Chandurkar said Friday: “I am of the opinion that the amendments are violative of Article 14 (equality before law) and Article 19 (freedom of speech) of the Constitution of India.”
Justice Chandurkar said the amendments also violated Article 21 and did not satisfy the “test of proportionality”. Article 21 protects the fundamental right to life and personal liberty.
In January, the division bench of Justices Gautam Patel and Dr Neela Gokhale disagreed in their verdict on a bunch of petitions that challenged the amended Information Technology (IT) Rules. While Justice Gautam Patel agreed with the petitioners, Justice Neela Gokhale upheld the government’s argument. “There is a disagreement between us. I have held for the petitions and Justice Gokhale has held for the government. So now the matter will be heard afresh by a third judge,” Justice Patel had said at the time.
The matter was then placed before the Chief Justice who assigned it to Justice Chandurkar as the “tie-breaker judge”.
Under the Rules, the central government can flag posts to social media intermediaries if the FCU came across or was informed about any that were “fake, false or contained misleading facts pertaining to the business of the government”.
Once such a post was flagged, the intermediary had the option of either taking it down or putting a disclaimer. If it took the second option, the intermediary would lose its safe immunity and stand liable for legal action.
Comedian Kunal Kamra, the Editors Guild of India and the Association of Indian Magazines filed petitions against the amendments, calling them arbitrary and unconstitutional, and claiming they would have a chilling effect on the fundamental rights of citizens.
The Centre, however, said it was not against any kind of opinion, criticism, satire or humour targeting the government, and the amended rules were meant to only proscribe or prohibit the peddling of fake, false and misleading facts on social media.
Amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were promulgated on 6 April, 2023.
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