The Bombay High Court ruled as unconstitutional the amended information technology (IT) rules aimed at identifying ‘fake and false’ content against the government on social media on September 20, 2024. The Ministry of Electronics and Information Technology (MeitY) had attempted to set up a Fact Check Unit (FCU) in order to identify fake news on the Internet as a part of the amendment of provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The court deemed these rules a violation of citizens’ rights, effectively quashing the establishment of a FCU to monitor online content. The court hold that the amended IT rules would infringe on the right to equality and freedom of speech, potentially causing a ‘chilling effect’ on individuals and social media intermediaries due to their vagueness and breadth.
Background
Under the Government of India (Allocation of Business) Rules, 1961, the Ministry of Information and Broadcasting (MIB) is responsible for sharing information about government policies, schemes, and programmes. The MIB is supported by several attached and subordinate offices, including the Press Information Bureau (PIB), to effectively carry out these duties. A key part of the ministry's role in promoting public information about the Government of India is addressing and combating the spread of fake, false, and misleading information.
The PIB has taken proactive steps to combat fake news about the Government of India. In November 2019, it launched an FCU specifically aimed at addressing misinformation related to government policies, ministries, departments, public sector undertakings, and other central government entities. The FCU verifies claims regarding government announcements and regulations through a rigorous fact-checking process, helping to dispel myths and false claims while providing accurate and reliable information to the public. The PIB FCU is led by a senior officer at the Director General (DG) or Additional Director General (ADG) level from the Indian Information Service (IIS).
In April 2022, the MeitY promulgated the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (2023 Rules), which amended the Information Technology Rules, 2021.
This amendment granted the union government the authority to create a fact-checking body that can classify any information related to the central government’s business as “fake, false, or misleading.”
The amended Rule 3(1)(b)(v) mandates that social media intermediaries make “reasonable efforts” to prevent users from uploading the content that has been identified by the Centre’s FCU as misinformation. If such content is flagged, intermediaries must remove it within 36 hours to maintain their “safe harbour” protection, which provides legal immunity for third-party content hosted on their platforms.
The Centre notified the FCU under the PIB as the authorised unit for the union government. The Centre stated that the FCU would determine the accuracy of online information related to the central government, labelling content on platforms like Facebook and Twitter as ‘fake’ or ‘misleading’, if necessary. Social media sites and Internet service providers must then remove or block access to flagged content to retain legal immunity.
However, this move faced opposition from stand-up comedian Kunal Kamra, Editors Guild of India, News Broadcasters and Digital Association, and Association of Indian Magazines, who claimed that these rules were arbitrary, unconstitutional, and infringe on fundamental rights. They argued that giving the government sole authority to determine fake news would result in censorship and have a chilling effect on the media. Furthermore, all of them petitioned the Bombay High Court against the FCU stating that these new rules may lead to their contents being blocked or accounts suspended or deactivated and further infringe their right to freedom of expression.
The Case
The case was referred to a division Bench comprising of Justices G.S. Patel and Neela Gokhale. On January 31, 2024, they delivered a split verdict in the case. Justice G.S. Patel was not in favour of the amended rules, while Justice Neela Gokhale upheld the rules.
Justice G.S. Patel, in his verdict, ruled that the government could not forcibly categorise speech as true or false and suppress information it considers as false, as this constitutes censorship. He criticised the FCU, saying it has the power to enforce its unilateral view of truth, describing this authority as having ‘fangs and claws’.
Justice Gokhale presented a contrasting view, deeming it unfair to assume bias towards FCU members solely due to their government appointment. She emphasised that legal recourse is available in cases of bias. The rules, she argued, do not directly penalise intermediaries or users and do not restrict their rights. Justice Gokhale considered the challenge to the FCU’s authority premature, as its character remained unknown. She stressed that citizens’ participation in democracy relies on access to authentic information, unhindered by misinformation, rendering their rights meaningless otherwise. Justice Neela Gokhale, in her verdict, emphasised that citizens’ participation in democracy is only meaningful if they have access to genuine information, untainted by misinformation, falsehoods, or deliberate deceit, to make informed decisions.
Due to a split verdict, a third judge, Justice Atul S. Chandurkar, was assigned on February 7, 2024, by Bombay High Court Chief Justice Devendra Kumar Upadhyaya to rehear the case and break the tie.
Justice Atul Chandurkar refused to grant a temporary stay on the amended rules after the central government revealed that the rules had not been formally published in the official gazette. On March 11, Justice Chandurkar declined to grant a stay on the notification establishing a FCU until he issued his final opinion on the pleas’ merits. He noted that his decision was based on a preliminary consideration of the issue related to interim applications. Following Justice Chandurkar’s opinion, the high court dismissed the interim applications.
An appeal was filed with the Supreme Court (SC) after the interim stay was rejected. However, the Centre notified the 2023 Rules in the official gazette on March 20, 2024, just a day before the SC was set to hear the appeal. With Lok Sabha elections approaching, the rules were crucial for the government’s handling of news related to ‘government businesses’.
A bench headed by Chief Justice of India (CJI) D.Y. Chandrachud on March 21, 2024, stayed the amended Rules until the Bombay High Court reached on a final conclusion.
The court stated that the laws enacted by Parliament are presumed constitutional, but could still face judicial review. The burden falls on petitioners to prove a law’s unconstitutionality. Courts typically avoid staying laws before ruling on their constitutionality, striking a balance between judicial review and Parliament's legislative powers.
Firstly, the rules are not acts of legislation, but rather directives issued by the ministry using powers delegated by Parliament. This changes the threshold for presumption of constitutionality. Secondly, the SC had previously stated that interim stays require an explicit finding of unconstitutionality, which may be inferred from Justice Patel’s detailed 148-page ruling, despite being part of a split verdict, according to Chief Justice Chandrachud’s observations.
After the SC staying the amended rules, the hearing was done in the Bombay High Court by Justice Chandurkar till August 8, 2024. Countering the petitioners, the Centre clarified that the rules target only the spread of false, misleading, or fake facts about government business on social media, and not the opinions, criticism, satire, or humour directed at the government.
The Tie-Breaker Judgment
After the hearing, Justice Chandurkar, in his 99-page opinion on split verdict, agreed with Justice G.S. Patel and held that the amended Rule 3(1)(b)(v) was violative of Articles 14 (equality before law), 19(1)(a) (freedom of speech and expression) and 19(1)(g) (right to practise a profession or trade) of the Constitution.
The impugned rule excessively restricts citizens’ fundamental rights, beyond the reasonable limitations outlined in Article 19(2), making it impermissible through delegated legislation.
The judge deemed the expressions fake, false or misleading in the Rule as ‘vague and overbroad’. Additionally, the judge endorsed Justice Patel’s view that the right to freedom of speech and expression does not inherently include a ‘right to the truth’.
Justice Chandurkar stated that it is not the responsibility of the state to ensure citizens only receive information deemed true by the FCU, specifically information not identified as fake, false, or misleading. He rejected the Centre’s argument that allowing FCU decisions to be challenged in a constitutional court provides adequate safeguard. He held that this alone could not validate the rule or justify limiting its scope.
He concurred with Justice Patel, stating that the impugned rule has a ‘chilling effect’ on both intermediaries, due to the threat of losing safe harbour, and freedom of speech, making it liable to be struck down.
Way Forward
Justice Chandurkar’s opinion settled the matter 2-1 in favour of the petitioners. His opinion presented to a two-judge division bench, which formally announce the 2-1 majority ruling against the disputed rule on September 26, 2024, completing the procedural process.
This may be appealed before the Supreme Court as such similar cases are pending before the Delhi and Madras High Courts too.
Other aspects of the 2021 guidelines are still pending before various high courts, including key provisions that require social media platforms to establish a grievance redressal and compliance mechanism, which includes appointing a resident grievance officer, chief compliance officer, and nodal contact person.
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