Bombay High Court cancels Centre's fact check unit – 'Amendment of rules unconstitutional'.

Bureau Prayagraj. The Bombay High Court on Friday struck down the amended Information Technology (IT) rules that provided for detecting fake news on social media against the government, terming them unconstitutional. In January, a division bench had given a split verdict on petitions challenging the amended IT rules, following which the matter was referred to Justice A S Chandurkar for reaching a conclusion.

The Modi government has suffered a setback from the Bombay High Court on the fact check unit. The court on Friday struck down the 2023 amendment to the IT rules. This means that the central government cannot create a fact check unit. It was these amended rules that allowed the central government to create a fact check unit to identify and refute 'fake and misleading' information about its functioning on social media platforms.

Justice Chandurkar on Friday said the rules violate constitutional provisions. “I have given a deep consideration to the matter. The impugned rules violate Articles 14 (right to equality), 19 (freedom of speech and expression) and 19(1)(g) (freedom and right to practice profession) of the Constitution,” the judge said. He said the expressions “false, false and misleading” in the rules are “vague and hence incorrect” in the absence of any definition.

With this decision, the High Court accepted the petitions filed by comedian Kunal Kamra and others challenging the new rules. These rules also include a provision to set up a fact checking unit (FCU) to identify fake or false content about the government.

The petitions against the IT rules were referred to Justice Chandurkar after a division bench of Justices Gautam Patel and N. Gokhale delivered a split verdict in January. Justice Patel had said the rules amounted to 'censorship', but Justice Gokhale had said they had no impact on freedom of expression. Justice Chandurkar on Friday said he agreed with the opinion given by Justice Patel (now retired).

The central government had on April 6, 2023 implemented amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, including the provision of 'FCU' to flag fake, false or misleading online content related to the government.

The petitioners claimed that both these rules are against Section 79 which protects intermediaries from taking action against third-party content and Section 87(2)(z) and (zg) of the IT Act, 2000. It further argued that the rules violate the fundamental rights of citizens to 'equal protection under the law' under Article 14 of the Constitution of India and freedom of expression under Article 19(1)(a) and 19(1)(g).

In his petition, Kunal Kamra said that he is a political satirist who relies on social media platforms to share his content and the rules may lead to arbitrary censorship of his content. The petitioner argued that the rule amendment may lead to arbitrary censorship of content as these can be blocked, removed, or their social media accounts can be suspended or deactivated. However, the Ministry of Information and Technology claimed that it would be in the public interest that authentic information related to the functioning of the government should be ascertained and disseminated after fact checking by the government agency so as to prevent potential harm to the public at large.