Bombay High Court strikes down IT Rules amendments of 2023 as unconstitutional

The Bombay High Court, by a 2:1 majority on Thursday, formally struck down amendments to the Information Technology (IT) Rules, 2021, which had allowed the Central government to establish fact-check units (FCUs) for censoring news on its activities. [Kunal Kamra v. Union of India & Ors and connected petitions]

The Bench of Justices AS Gadkari and Neela Gokhale passed the verdict in petitions filed by comedian Kunal Kamra and the Editors Guild of India. The judgment stated,

“In view of the majority opinion, the rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is declared unconstitutional and accordingly struck down. Petitions are accordingly allowed.”

Last week, Justice AS Chandurkar issued an opinion ruling against the amendments, following a split verdict earlier this year by Justices GS Patel and Neela Gokhale.

Justice Patel had opposed the amendments, while Justice Gokhale had upheld them. This led to the matter being referred to Justice Chandurkar to resolve the tie.

After Justice Chandurkar's opinion was pronounced, the case was placed before the Bench headed by Justice Gadkari for formal pronouncement, as Justice Patel had retired in April this year.

The petitioners challenged Rule 3, which empowered the government to create fact-check units for identifying false online news. They argued that the amendments were ultra vires (beyond legal authority) to Section 79 of the Information Technology Act and violated Article 14 (right to equality) and Article 19(1)(a)(g) (freedom to practice any profession or trade) of the Constitution.