Why has Bombay HC invalidated Centre’s proposed ‘fact-checking’ unit? | Explained

Justice A.S. Chandurkar struck down the amended IT Rules, 2021, which empowered the Centre to establish a ‘fact-checking unit’ tasked with ordering the removal of false or misleading information about itself. What does the ruling say and what happens next?

On September 20, the Bombay High Court struck down as “unconstitutional” and “vague” the amended Information Technology (IT) Rules, 2021, which empowered the Centre to establish a “Fact Check Unit” (FCU) to identify “fake or false or misleading” online content about the government and its establishments. Justice Atul Sharachchandra Chandurkar delivered the verdict in his capacity as the “tie-breaker” judge after a division Bench comprising Justices G.S. Patel and Neela Gokhale pronounced a split verdict in January, 2024.

What was the law under challenge?

In April 2022, the Ministry of Electronics and IT (MEiTY) introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (2023 Rules), amending the 2021 IT Rules. This amendment vested the Union government with the authority to establish a fact-checking body empowered to classify any information “pertaining to the business of the Central government” as “fake, false, or misleading”.

The amended Rule 3(1)(b)(v) specifically required social media intermediaries to make “reasonable efforts” to prevent users from uploading or transmitting any content flagged by the Centre’s FCU as misinformation. Such flagged content would have to be taken down within 36 hours if the intermediaries wanted to retain their “safe harbour” protection — a form of legal immunity against any third-party content hosted by them. Within a week of their notification, the constitutional validity of the 2023 Rules was challenged before the High Court by Kunal Kamra, a political satirist and standup artist, the Editors Guild of India, and the Association of Indian Magazines.

What did the split verdict stipulate?

Justice Patel opined that the amended rules promoted censorship and did not fall within the ambit of reasonable restrictions permitted under Article 19(2) of the Constitution. He underscored that the absence of procedural safeguards or guidelines effectively made the Union government a “judge in its own cause”. In contrast, Justice Gokhale reasoned that the government is best positioned to provide accurate information about itself and that the rules were intended solely to combat misinformation, without restricting legitimate criticism or political satire. She also dismissed allegations of bias by asserting that the mere fact that the FCU members were appointed by the government did not undermine their independence.

Why did the Supreme Court intervene?

Following the split verdict, the Chief Justice of the High Court appointed Justice Chandurkar to hear the matter afresh and deliver a tie-breaking ruling, in accordance with the High Court rules. Subsequently, the petitioners filed applications seeking an interim stay on the notification of the FCU until the matter was finally adjudicated. However, Justice Chandurkar dismissed these applications on the ground that no prima facie case was made out to stall the establishment of the body. He accordingly referred the applications back to the original bench of Justices Patel and Gokhale for resolution. In an order dated March 13, 2024, Justice Gokhale concurred with Justice Chandurkar leading to the dismissal of the interim stay applications by a 2:1 majority.

On March 20, 2024, the Centre notified the FCU under the Press Information Bureau (PIB). However, the very next day, the Supreme Court stayed the operation of the notification until Justice Chandurkar took a final call on the validity of the amended rules. It reasoned that the challenge raised “serious constitutional questions” relating to the fundamental right to freedom of speech and expression.

Also Read: Unwarranted curbs: On the Centre’s move on a ‘fact-checking unit’

What did Justice Chandurkar rule?

Endorsing Justice Patel’s view, Justice Chandurkar observed that the amended rules suffer from manifest arbitrariness and sought to impose restrictions on freedom of speech and expression beyond those defined under Article 19(2) of the Constitution. He noted that the expressions “fake, false or misleading” within the rules are “vague and overbroad”, leaving ample room for potential misuse.

Highlighting that there was no clarity on how the FCU would identify any information to be patently false or misleading, the judge asserted that the “exercise would result in an unilateral determination by the executive itself”. He also refused to accept the Centre’s claim that the ambit of the 2023 Rules would exclude political comments, debates and satire by reasoning that “any assurance from one Government even if carried out faithfully would not bind a succeeding Government.”

Notably, Justice Chandurkar observed that the mere ability of an aggrieved person to challenge FCU decisions in a constitutional court could not be regarded as an adequate safeguard. He accordingly concluded that amended rules were liable to be struck down, as they created a “chilling effect” on intermediaries by jeopardising their safe harbour protection.

What happens next?

The Union government is likely to appeal the decision before the Supreme Court especially since the 2021 IT Rules are currently under challenge before the Delhi High Court and the Madras High Court. The ruling will also impact the legitimacy of similar fact-checking units established in Tamil Nadu and Karnataka. In November 2023, the Madras High Court had adjourned a public interest litigation petition filed against the State government’s FCU, awaiting the decision of the Bombay High Court.

Published - September 25, 2024 08:30 am IST