Fact-Check Units under IT Rules, 2023: Can a statute have unbound discretionary authority? Bombay High Court asks

While hearing the challenges to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, the Bombay High Court on Friday questioned if it was permissible in law for a statute to have unbound, limitless discretionary authority..A Bench of Justices GS Patel and Neela Gokhale made the observation while hearing a batch of petitions challenging the IT Rules amendments, specifically those to Rule 3, which provide that the Central government can form a Fact Checking Unit (FCU) which is empowered to identify and tag what it considers false or fake online news with respect to any of the government's activities.The Court questioned if a statute could have limitless discretionary authority to take action when terms in rules are undefined.“‘Fake’, ‘false’ and ‘misleading’ have slightly different colour. I do not know and cannot make out what are the boundaries of these three words in amendment or the word 'business’. Is it permissible in law for statute to have unbound discretionary authority like this? On its own plainly read, what are the limits and boundaries of these four words?” the Court questioned..Appearing for Kunal Kamra, Senior Advocate Navroz Seervai argued on the unconstitutionality of the provision under which the government was going to set up Fact Checking Units (FCUs)..In response, the Court wondered how the FCU was going to know whether a statement made was true or false.“I am not sure whether a court in civil action can say this (a statement is true or false). It may say it is not believable. What is source of FCU’s constitutional power? I am not sure even a civil court could authoritatively pronounce on truth or falsity. It may pronounce on likelihood or probability. This is not a binary. It can't be a binary,” Justice Patel expressed. .The Bench elaborated with examples.“In newspapers, if you look at criticism of government figures on the state of economy. Figures may come from official sources. Analysts may have their own figures. Is it fake news? What happens to editorial content online? You may find any editorial extremely hard-hitting. For example, India's relations with China. We are concerned about authority conferred on FCU. We do not care about what is that FCU,” the Court said..Justice Patel also pointed out instances where legal portals put out information about court hearings on social media handles and if that would be termed as misleading.“If a law reporter in court puts out your arguments and summarizes them, how is it not 'misleading'? Live Law and Bar & Bench put out court hearings. We are in the realm of unknown. I am having difficulty grappling with definitions of those words. I am not bothered about fact-checking. Do these four words have precise definitions?”.The Bench began final hearing in the petitions filed by Kamra, the Editors Guild of India, the Association of Indian Magazines and the New Broadcast and Digital Association on July 6. Seervai will continue with his submissions on July 14..Government has come up with Fact-Check Unit owing to fear of unknown: Bombay High Court