In April 2023, the Bombay High Court commenced hearings on the petitions challenging the Fact-Checking Unit (FCU). At that time, the Central Government assured that the implementation of the Rules would be on hold until the High Court reached a decision. This commitment was afterwards extended several times. Upon delivering a divided verdict, the Bombay High Court asked the Central Government to prolong the suspension of the Rules’ implementation for an additional two weeks.
The Bombay High Court on Wednesday delivered a split verdict on a series of petitions challenging the constitutional validity of the new Information Technology (IT) rules, which authorize the central government to establish a Fact-Checking Unit (FCU) for monitoring social media platforms for fake news or misleading information. The decision, which has created a buzz in legal and digital circles, was announced on Wednesday.
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The division bench, led by Justice Gautam Patel, delivered contrasting opinions on the matter. Justice Patel struck down the controversial provision, which was notified in April of the previous year. However, Justice Neela Gokhale upheld the validity of the amendment. This divergence in views has led to the matter being referred to a third judge for a decisive ruling.
The petitions, filed by satirist Kunal Kamra, the Editors Guild of India, the Association of Indian Magazines, and the News Broadcast and Digital Association, specifically challenged Rule 3(i)(II)(A) and (C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023. This rule imposes an obligation on intermediaries, such as social media platforms, to make
“reasonable efforts to cause users to not publish, display, upload or share information in respect of business of the central government that is identified as fake, false or misleading by the FCU as the ministry (ministry of electronics and information technology) may specify.”
Kunal Kamra’s petition argued that these rules infringe upon the freedom of speech and expression, criticizing the term ‘business’ as being overly broad and vague. He contended that this vagueness (lack of certainty) could lead to a “chilling effect” where intermediaries might remove any information flagged by the FCU rather than risk losing their safe harbor protections.
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Furthermore, Kamra stated that the rules effectively make the central government the sole arbiter of truth regarding its ‘business’, compelling private entities to impose that version of truth on all users.
On the other hand, Solicitor General Tushar Mehta, representing the central government, argued that the amendment’s objective was not to curb free speech, opinion, criticism, or satire against the government or the prime minister. Instead, it aimed to create a balancing mechanism to tackle a medium that was “uncontrollable and uncontrolled.” He emphasized,
“The government is not trying to proscribe and prohibit any expression of opinion, criticism, or comparative analysis and the government welcomes them, encourages them and learns from them. The IT rules only put a system in place.”
Mehta further stated that the government did not doubt the intelligence of its citizens and that they could post anything they wanted and criticize the government. However, he clarified that fake, false, and misleading information about the business of the central government would not be allowed.
This split verdict in the Bombay High Court has set the stage for further legal scrutiny and has significant implications for the balance between government regulation and freedom of expression in the digital age. The matter now awaits a conclusive judgment from a third judge, which will be pivotal in determining the future of these contested IT rules.
Case no. – WP(L)/9792/2023 Case
Title – Kunal Kamra v. Union of India
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