Legal
Bombay High Court Nullifies IT Amendment Rules Authorizing Government to Establish Fact-Check Units
On Friday, the Bombay High Court invalidated a provision in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, specifically Rule 3. This rule allowed the central government to establish Fact-Check Units (FCUs) to identify false or misleading information related to the government on social media and digital platforms. The decision came in response to petitions, including one by comedian Kunal Kamra, that challenged the rule’s constitutionality.
Justice AS Chandurkar, serving as the tiebreaker judge, delivered the judgment after the case was referred to him following a split decision by a two-judge bench earlier this year. He ruled that Rule 3 violated Articles 14 and 19 of the Indian Constitution, which protect the right to equality and freedom of speech and expression, respectively.
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The IT Amendment Rules, 2023, were introduced to modify the existing Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The petitioners, represented by Senior Advocates Navroz Seervai and Arvind Datar, contended that the rule was unconstitutional under Section 79 of the Information Technology Act and infringed on fundamental rights guaranteed under Articles 14 and 19(1)(a)(g) of the Constitution. They argued that the FCUs would enable state censorship of discussions critical of the government.
In January, Justices GS Patel and Neela Gokhale delivered opposing opinions on the matter. Justice Patel supported the petitioners, striking down Rule 3, expressing concerns over potential censorship and the shifting of responsibility for content accuracy from creators to intermediaries. He stressed the need for clear, unbiased guidelines and argued that giving special importance to content involving the central government over other subjects violated Article 14.
Justice Gokhale, however, upheld the rule, defending it as a necessary measure to counter malicious misinformation while maintaining freedom of speech. She asserted that the rule should not be invalidated based on concerns of potential abuse and suggested that users whose rights are violated could seek redress in court.
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The case was referred to Justice Chandurkar by Chief Justice DK Upadhyay after the split verdict.
In its defense, the government, represented by Solicitor General Tushar Mehta, argued that the FCUs were not intended to stifle criticism or satire but were focused on ensuring the accuracy of government-related information. Mehta emphasized that the rule applies solely to content based on official government documents. He argued that any “chilling effect” would only target fake news and that the government would not serve as the final authority on content, with intermediaries and courts playing key roles in the process.
However, the petitioners warned that allowing the government to determine what constitutes true or false information would effectively permit state censorship. They argued that the right to accurate information belongs to citizens, not the state, and questioned the FCUs’ ability to serve their stated purpose of keeping citizens informed.
Ultimately, Justice Chandurkar ruled that Rule 3 infringed on fundamental rights, siding with the petitioners.