The Bombay High Court struck down the 2023 amendments to the IT Rules, which had allowed the Central government to establish Fact Check Units (FCUs) for identifying and addressing ‘fake and misleading’ information related to its operations on social media platforms.
Single-judge Justice Atul Chandrukar held that the amendments are violative of Article 14 and Article 19 of the Constitution of India while pronouncing his ‘opinion’ on the split verdict from a division bench comprising Justices Gautam Patel and Dr. Neela Gokhale in January 2024.
In addition, he mentioned that the amendments also violate Article 21 and do not satisfy the ‘test of proportionality’.
In 2023, the government amended Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. One of the amendments, Rule 3(1)(b)(v), granted the government to create FCUs to identify false news online. This rule received criticism and faced legal challenges.
The petition was filed by stand-up comedian Kunal Kamra, the Editors Guild of India, the Association of Indian Magazines, and the News Broadcast and Digital Association.
The petitioners argued that the two rules are ultra vires to Section 79, which safeguards intermediaries from action against third-party content, and Section 87(2)(z) and (zg) of the IT Act 2000.
They further contended that it violates fundamental rights granting citizens ‘equal protection under the law’ under Article 14 and freedom of speech under Articles 19(1)(a) and 19(1)(g) of the Constitution of India.
While Justice Patel had struck down the rules in their entirety, Justice Gokhale had maintained the rules’ legality.
Justice Patel, in his judgment, held that the proposed FCUs under the 2023 amendment to the IT Rules 2021 directly violated fundamental rights under Article 19(1)(g) due to the differential treatment between online and print content. Article 19( 1)(g) of the Constitution of India deals with freedom to practice one’s profession or business and Article 19 (6) enumerates the nature of restriction that can be imposed.
Whereas Justice Gokhale held that the rule was not unconstitutional. She asserted that the concern of the petitioner about the FCU being a biased body, composed of individuals selected by the government and acting at its direction, was ‘unfounded.’ She clarified that there were no ‘restrictions on free speech,’ nor did the amendments imply any penal consequences for users.
After a split verdict, the Chief Justice of the Bombay High Court appointed Justice Chandurkar in February as the ‘tie-breaker’ judge to hear the case and deliver a final ruling on the petitions.
