The Bombay High Court on Friday struck down provisions for setting up a Fact Checking Unit (FCU) to monitor social media content, ruling against the 2023 amendments to the Information Technology Rules. The judgment came after a referral was made to a third judge following a split verdict delivered by a division bench on January 31.
The bench, consisting of Justice Gautam Patel and Justice Neela Gokhale, had been divided on the constitutional validity of the amendments. While Justice Patel ruled the 2023 amendments to be unconstitutional, Justice Gokhale upheld their validity. The matter was subsequently referred to Justice AS Chandurkar, who, on Friday, concurred with Justice Patel’s view, striking down the rules as unconstitutional.
The amendments, which empowered the establishment of an FCU, were challenged in court by satirist Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines. The petitioners argued that the provisions, specifically Rules 3(i)(II)(A) and (C) of the IT Rules, 2023, were ultra vires to Section 79 of the Information Technology Act, 2000, and violated constitutional principles enshrined in Articles 14, 19(1)(a), and 19(1)(g) of the Indian Constitution.
The petitioners contended that these rules obligated social media intermediaries to prevent users from publishing or sharing information identified as “fake, false, or misleading” by the Central Government’s FCU. They argued that this requirement infringed on the freedom of speech and expression, as the term “business of the central government” was overly broad and vague. According to the petitioners, this ambiguity would lead intermediaries to remove any content flagged by the FCU, thereby creating a “chilling effect” on free expression.
During the hearings, the Central Government initially assured the court that the FCU would not be notified. However, after the split verdict, the government withdrew this statement, prompting the petitioners to request a stay on the notification of the FCU from Justice Chandurkar, to whom the case had been referred for a final decision.
On March 11, Justice Chandurkar rejected the petitioners’ request for a stay, citing assurances from the Solicitor General of India. The Solicitor General had clarified that the rule was aimed strictly at addressing misinformation related to government business and was not intended to suppress satire, sarcasm, or political commentary. The judge further emphasized that the court could only entertain a challenge based on actual implementation and not mere apprehension of harm.
Justice AS Chandurkar’s final ruling concluded that the 2023 amendments were unconstitutional, aligning with Justice Patel’s earlier stance. The court held that the rules violated the right to free speech and expression, particularly given the vague and broad scope of the term “business of the central government.”
The decision marks a significant victory for advocates of free speech, as it effectively prevents the establishment of a government-controlled fact-checking unit with the authority to flag and remove content on social media. The ruling underscores the importance of safeguarding freedom of expression, especially in the context of political discourse, satire, and criticism.
Sources By Agencies
