Bombay High Court Strikes Down Government’s Fact Check Unit as Unconstitutional

The Bombay High Court on Friday dealt a significant blow to the Centre by striking down the amended Information Technology (IT) rules that allowed the government to identify “fake news” on social media through a Fact Check Unit (FCU). The court ruled that the amended rules were unconstitutional.

In a decisive opinion, Justice Atul S Chandurkar declared the amended rule “ultra vires” (beyond the powers) of the IT Act. His judgment follows a split verdict delivered on January 31 by a two-judge division bench, which was tasked with hearing pleas that challenged the amended rules. Justice Chandurkar’s ruling sided with Justice Gautam S Patel, who had also declared the rule unconstitutional in the earlier judgment. Justice Patel, who is now retired, was part of the original division bench that delivered the split verdict.

Justice Chandurkar ruled that the amendment to the IT Rules, 2023, through Rule 3(1)(b)(v), violated Articles 14 and 19 (1)(a) and 19 (1)(g) of the Constitution. Article 14 ensures equality before the law, while Articles 19 (1)(a) and 19 (1)(g) safeguard the right to freedom of speech and expression and the right to practice a profession, respectively.

Justice Chandurkar criticized the terms “fake, false or misleading” as vague and overly broad, arguing that the amended rule did not pass the “test of proportionality.” “Impugned Rule as amended be struck down. All the petitions will be placed before the division bench to be decided,” Justice Chandurkar ruled.

Justice Chandurkar’s opinion will now be presented to a division bench of two judges, who will formally announce the 2:1 majority ruling against the impugned rules. This ruling represents a clear challenge to the government’s efforts to regulate social media content through the Fact Check Unit.

The IT rules, amended in April 2023, required online platforms to take down content flagged as “fake or misleading” by the FCU if they wished to retain their “safe harbour” status, which provides them legal immunity against third-party content. However, the court found this amendment to infringe on the constitutional right to freedom of speech and expression.

Justice Chandurkar also endorsed the view that citizens do not have a “right to the truth” under the right to freedom of speech. He noted that it was not the state’s responsibility to ensure that citizens are provided only with “information” that the FCU deems not fake or misleading.

“The impugned rule sought to restrict the fundamental right under Article 19 (1) (a) (Freedom of speech and expression) by placing restrictions that were not in line with reasonable limitations provided under Article 19 (2),” Justice Chandurkar explained in his opinion. He also stressed that such a restriction could not be imposed through delegated legislation.

In his ruling, Justice Chandurkar further pointed out that there was no clear basis to determine if information about the Central Government’s business, when presented digitally, was fake or false. This determination was absent in cases where the same information appeared in print.

Additionally, he emphasized that the amendment had not been enacted in accordance with the IT Act, 2000. The Centre had also failed to demonstrate that the proposed amendment had been laid before both houses of Parliament as required under Section 87 of the 2000 Act.

Justice Chandurkar also dismissed the Centre’s claim that decisions made by the FCU could be challenged before a constitutional court, stating that such a provision “cannot be treated as adequate safeguard.” He added that the impugned rule could not be salvaged by “reading it down” or limiting its application.

In agreement with Justice Patel, Justice Chandurkar noted that the rule had a “chilling effect” on online platforms due to the threat of losing their “safe harbour” status. This concern, according to the judge, made the rule “invalid” and “liable to be struck down.”

The journey to this ruling began on January 31, when Justice Patel, in a split verdict, sided with the petitioners and struck down the rule, while Justice Neela K Gokhale upheld the government’s stance. Given the split decision, Chief Justice Devendra Kumar Upadhyaya appointed Justice Chandurkar as the third judge to offer a deciding opinion.

The petitioners in this case included stand-up comedian Kunal Kamra, the Editors Guild of India, the News Broadcasters and Digital Association, and the Association of Indian Magazines. They had previously filed an interim application seeking to stay the implementation of the FCU and requested that it not be formed until the third judge had given his final opinion on the merits of the case.

On March 11, Justice Chandurkar refused to grant a stay on the notification setting up the FCU, stating that it was “only a prima facie consideration of the issue” at that stage. He clarified that he would issue his final opinion on the merits of the case later.

Following Justice Chandurkar’s opinion, the High Court dismissed the interim applications, clearing the path for the Centre to notify the FCU under the Press Information Bureau (PIB) on March 20. However, the Supreme Court intervened just a day later, staying the notification pending the final ruling from the Bombay High Court.

With this ruling, the Bombay High Court has now struck down the controversial amendment, leaving the government’s future actions on regulating online content through fact-checking under serious scrutiny. The case will continue to be a significant point of interest as it progresses through the courts, especially in the context of the ever-evolving conversation on regulating social media platforms and safeguarding freedom of speech.