Today(20th Sept),The Bombay High Court struck down Rule 3 of the Information Technology Amendment Rules, 2023, which allowed the Centre to create a Fact-Check Unit to regulate fake news about the government on social media. The ruling came after petitions, including one by comedian Kunal Kamra, challenged the rule’s constitutionality.
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MUMBAI: Today(20th Sept), The Bombay High Court invalidated the controversial Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023. This provision granted the Central government the power to establish a Fact-Check Unit (FCU) to identify and regulate false or fake news concerning the central government on social media and online platforms. The judgment came in response to petitions, including one by stand-up comedian Kunal Kamra, who challenged the constitutionality of the rule under the Information Technology Act.
Context of the Case: Split Verdict and Final Judgment
The case, officially titled Kunal Kamra v. Union of India & Ors, had reached a split verdict in January 2023 by a Division Bench comprising Justices GS Patel and Neela Gokhale. This divergence of opinion led to the matter being referred to Justice AS Chandurkar as a tie-breaking judge.
On Friday, Justice Chandurkar delivered his opinion, asserting that Rule 3 violates key constitutional provisions.
“In my view, it infringes upon Articles 14 and 19 of the Constitution.”
-declared Justice Chandurkar while reading out the verdict.
Rule 3 and the IT Amendment Rules 2023
The IT Amendment Rules 2023 revised the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Specifically, Rule 3 granted the Central government the authority to form Fact-Check Units (FCUs) with the aim of identifying and mitigating false or fake news related to the central government across digital platforms.
The petitioners, including Kunal Kamra, argued that these amendments were unconstitutional, violating Section 79 of the Information Technology Act and infringing upon fundamental rights enshrined in Article 14 (right to equality) and Article 19(1)(a)(g) (freedom of speech, occupation, trade, or business) of the Indian Constitution.
Justice Patel’s Ruling: Concerns About Censorship
On January 31, 2023, Justice GS Patel ruled in favor of the petitioners. He struck down Rule 3, raising concerns about the potential censorship it could impose on user-generated content. According to Justice Patel, the rule transferred the burden of ensuring the accuracy of content from the creators to intermediaries, who were not the original publishers of the content.
In his judgment, Justice Patel noted-
“There is a concern that intermediaries may turn into censors, suppressing legitimate debate and criticism merely to avoid liability.”
He also expressed concerns that government information was being prioritized over other sensitive topics, stating that there was no legitimate basis for giving “high value” speech recognition solely to information related to the central government.
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Justice Gokhale’s View: Protecting Against Misinformation
In contrast, Justice Neela Gokhale upheld the validity of the amended rules. She argued that the rules targeted misinformation with a malicious intent while safeguarding the constitutional right to freedom of speech.
“A rule cannot be struck down solely based on the assumption that it might be misused. Petitioners and users have the right to approach the courts if any intermediary actions violate their fundamental rights.”
-Justice Gokhale remarked during her decision.
Tie-Breaker Opinion by Justice Chandurkar
Given the split verdict, Chief Justice DK Upadhyay appointed Justice AS Chandurkar to provide a tie-breaking opinion. After reviewing the case, Justice Chandurkar declared Rule 3 unconstitutional, reiterating that it violated both Article 14 and Article 19 of the Indian Constitution. His ruling brought finality to the issue, striking down the provision empowering the Central government’s Fact-Check Unit.
Petitioners’ Arguments Against Government Control
Senior Advocates Navroz Seervai and Arvind Datar, representing the petitioners, argued that the creation of Fact-Check Units was nothing short of “state censorship.” They emphasized that the FCUs were designed to silence discussions that the government found undesirable, effectively curbing freedom of expression on online platforms.
They also highlighted a critical flaw in the rules: the absence of clear provisions that empowered the FCUs to serve their stated purpose of keeping citizens informed. According to the petitioners, the Fact-Check Units were more about controlling narratives rather than ensuring access to truthful information.
In defense of the rule, Solicitor General Tushar Mehta argued that the Fact-Check Units were not intended to curb legitimate criticism or satire. Instead, they were focused on ensuring accuracy in content related to the government, thereby preventing the spread of misinformation. Mehta emphasized that the rule applied solely to information that appeared in official government documents or communications.
“The Fact-Check Units do not seek to limit free speech but to curb fake and misleading information,”
– Mehta argued.
He acknowledged that there may be a chilling effect, but stated that-
“any chilling effect should only pertain to fake and false news.”
Furthermore, Mehta clarified that the government would not be the “final arbiter” of what constitutes true or false information. Instead, intermediaries would initially assess the content, with courts having the final say on disputes concerning accuracy.
He also asserted that the right to receive accurate information is a fundamental right of the news-consuming public, pointing out that it was the duty of all content creators to ensure that the information they disseminate was factually accurate.
Petitioners’ Counterarguments: Citizens, Not the State, Have the Right to Information
In rebuttal, the petitioners stressed that the right to accurate information belongs to the citizens, not the State. They argued that allowing the government to define what is true or false gives it the power to suppress dissent and control the flow of information.
Senior Advocate Navroz Seervai stated-
“It is the citizens who have the right to information, and they must be the ones to judge what is true and what is false.”
The petitioners also raised concerns that intermediaries could lose their safe harbor protections under Section 79 of the Information Technology Act. They warned that intermediaries would likely censor content more aggressively to avoid legal challenges, thus hampering the free exchange of ideas.
