The Bombay High Court is set to announce its verdict on December 1, 2023, regarding the contentious IT Amendment Rules, 2023. These rules empower a government-established Fact Check Unit (FCU) to identify and flag misleading, false, or fake information about the Central Government on social media platforms. Following this identification, platforms such as Facebook and Instagram would be obligated to either remove the flagged content or attach a disclaimer at their own risk, as per directives from the Ministry of Electronics and Information & Technology.
The division bench, consisting of Justice GS Patel and Justice Neela Gokhale, has reserved the pleas of political satirist Kunal Kamra, the News Broadcasters and Digital Association, the Editor’s Guild of India, and the Association of Indian Magazines for final orders. The court stated,
“Arguments are concluded. We permit counsels to put supplementary notes of arguments in by October 14. Mr. Mehta says statement (not to notify Fact Check Unit) to extend till pronouncement of Judgement. Judgement to be pronounced on December 1, 2023.”
Solicitor General Tushar Mehta clarified that social media intermediaries cannot remain passive about content flagged by the FCU. In response to Kamra’s petition, the Centre argued that if a platform continues hosting information flagged as ‘false’ or ‘misleading’ by the Government’s FCU, it would have to defend its actions in court.
Senior Advocate Navroz Seervai, representing Kamra, highlighted the lack of remedies available to users whose content is flagged by the FCU. He argued that the Central Government acts as the sole judge in these cases, leaving users with only a writ petition as recourse. Seervai emphasized that terms like “fake,” “fact,” and “misleading” are overly broad, leading to potential arbitrariness and discrimination, thereby violating Articles 14 and 19 of the Constitution.
Seervai also questioned the classification of the government as a unique entity, arguing that the government’s FCU should not possess powers beyond those of other independent FCUs. He concluded that the Rule is ultra vires Articles 14 and 19(1)(a) of the Constitution and should be struck down.
Senior Advocate Arvind Datar, representing the News Broadcasters and Digital Association, countered the government’s claim that the FCU serves merely in an advisory capacity. He stated,
“The SG tried to argue that the FCU is an advisory. It’s not a travel advisory. It is a binding dictat and order.”
Justice Patel raised concerns about the ambiguity surrounding the term “fake” and questioned the kind of disclaimer an intermediary could attach when content is flagged by the FCU.
Datar further argued against the government’s assertion that the Rules serve the public interest, emphasizing that public interest is not mentioned in Article 19(2), which addresses reasonable restrictions.
Kamra’s petition asserts that he relies on social media platforms to share his content, and the Rules could lead to his content being arbitrarily blocked or his accounts being suspended. The bench had previously observed that the new amendment to IT Rules 2022 prima facie lacks the necessary safeguards to protect satire.
The Centre maintains that it is in the public interest for “authentic information” to be verified and disseminated after fact-checking by a government agency to prevent potential harm to the public.
The petitions challenging the IT rules were filed by Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines. They argue that the rules infringe upon freedom of speech and expression, as the term ‘business’ is broad and vague. Responding to these concerns, Solicitor General Tushar Mehta emphasized that the objective was not to curb free speech but to create a balancing mechanism for a medium that was “uncontrollable and uncontrolled.”