MUMBAI: The Bombay high court on Friday struck down provisions that empowered the central government to set up a “fact check unit” to take down online content deemed fake or misleading.
In his referral order, Justice AS Chandurkar opined: “The amendments are violative of Article 14 and Article 19 of the Constitution of India.” His order came on the back of a split verdict pronounced by a division bench of justices Gautam Patel and Neela Gokhale on January 31 wherein Justice Patel had struck down the 2023 amendments to the Information Technology Rules, ruling that they infringed constitutional principles. Justice Gokhale, on the other hand, had upheld the validity of the Rules and dismissed three separate petitions, challenging validity of Rules 3(i)(II)(A) and (C) of the Information Technology Rules, 2021.
The rules enabled the Ministry of Electronics and Information Technology to set up a fact checking unit to identify “fake, false or misleading information in respect of the business of the central government,” and cast an obligation upon intermediaries of making “reasonable efforts to cause users to not publish, display, upload or share such information.”
Read more: Vishal Bhardwaj, Kunal Kamra among contributors to Kanhaiya Kumar’s campaign
After the split verdict the matter was referred to Justice Chandurkar for final decision.
The petitioners, satirist Kunal Kamra, Editors Guild of India, Association of Indian Magazines and the News Broadcasters & Digital Association had challenged the validity of the rules as being ultra vires or exceeding the provisions of the Information Technology Act, 2000 under which they were framed. The petitioners maintained the rules were violative of the principles of equality before the law enshrined in Article 14, freedom of speech and expression contained in Article 19(1)(a) and the right to practice any profession, or to carry on any occupation, trade or business enshrined in Article 19(1)(g) of the Constitution of India.
“Broad and vaguely worded laws have a chilling effect upon the freedom of speech and expression,” said Kamra’s petition and added that the vague terms have been used to “create a chilling effect where intermediaries will resort to take down any information flagged by the Central Government’s fact-checking unit, rather than risk losing safe harbour.”
The said rules, according to the satirist, made the central government the sole arbiter of truth in respect of its business obliging private parties to impose that version of truth on all users. “This provision, therefore, makes the government the sole gatekeeper of the marketplace of ideas and constitutes a clear breach of Article 19(1)(a) (freedom of speech and expression),” the petition added.
On January 31, Justice Patel allowed the petitions, holding that there was no justification why business of the central government should stand on special footing to be distinct from other information available on social media platforms.
Justice Patel had also held that there were no guiding principles for the FCU to follow to identify fake, false or misleading information about the business of the central government. The absence of procedure and lack of opportunity to set up a counter case rendered the rules bad in law and violative of principles of natural justice, he had ruled.
On Friday, the referral judge concurred with the views expressed by Justice Patel. “I agree that the impugned amendment of 2023 to Rule 3(1)(b)(v) is ultra-vires Article 19(1)(a) and Article 19(2) of the Constitution,” said justice Chandurkar.
The right to freedom of speech and expression was not restricted to “right to the truth” and free speech on the internet being an integral part of Article 19(1)(a), any restriction on it must conform to restrictions imposed by Article 19(2) and must be reasonable, he added. The freedom of speech and expression cannot be curtailed on the premise that such fundamental right was to ensure that every citizen received only ‘true’ and ‘accurate’ information as determined by the Government. It was not open for the State to coercively classify speech as true or false and compel non-publication of the latter,” justice Chandurkar reiterated.