Five reasons why Bombay High Court struck down IT Rules Amendment on Fact Check Units

The Bombay High Court’s Justice AS Chandurkar on September 20 struck down Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Rules Amendment), which empowered the Central government to establish Fact Check Units (FCUs) to regulate 'fake news' about its business finding it be violative of fundamental rights [[Kunal Kamra v. Union of India and Ors and other petitions].

This rule required intermediaries including social media platforms to ensure that users do not share information that is "patently false and untrue or misleading" regarding the Central government’s business. It enabled the establishment of FCUs to identify such misleading information.

The petitions, including one filed by stand-up comedian Kunal Kamra had challenged Rule 3.

Justice AS Chandurkar delivered the verdict after the matter was referred to him following a split verdict in the matter by a Division Bench of Justices GS Patel and Neela Gokhale in January this year.

In his ruling, Justice Chandurkar agreed with Justice GS Patel’s stance in the split verdict. This decision overrode the view of Justice Neela Gokhale who had upheld the amendment.

Below are five reasons why Justice Chandurkar found the amendment to be violative of the Constitution.

1. Violation of fundamental rights

Justice Chandurkar held that Rule 3 was violative of right to equality under Article 14 and freedom of speech and freedom to carry on trade and profession under Articles 19(1)(a), and 19(1)(g) of the Constitution and was ultra vires the Information Technology Act, 2000.

On the point of freedom of expression, Justice Chandurkar fully aligned with Justice Patel's stance that Article 19(1)(a) guarantees freedom of speech but does not include a "right to the truth."

Justice Patel had held that any restrictions on speech must be reasonable and comply with Article 19(2), and concluded that the rule improperly classified speech without constitutional authority, thus infringing upon Article 19(1)(a).

While Justice Gokhale argued that the rule was consistent with Section 69A of the Information Technology Act (IT Act) and past judgments and that intermediaries would lose safe harbor only if the content exceeded the restrictions under Article 19(2), Chandurkar disagreed.

He concurred with Patel's analysis, stating, “there is no inherent ‘right to the truth’ under Article 19(1)(a)," and that it was not the State's role to dictate the truthfulness of information, ruling the amendments to Rule 3(1)(b)(v) ultra vires Articles 19(1)(a) and 19(2).

2. Discrimination against digital platforms

Justice Chandurkar highlighted that the rule treated digital platforms differently from print media, echoing Justice Patel’s argument that this amounted to discrimination under Article 19(1)(g).

Justice Patel had ruled that information published in print was not subject to similar scrutiny.

Justice Chandurkar agreed with the same.

"There is no basis or rationale for undertaking the exercise of determining whether any information in relation to the business of the Central Government is either fake or false or misleading when in the digital form and not undertaking a similar exercise when that very information is in the print form", he noted.

Justice Gokhale had held that digital platforms' wider reach justified stricter regulation. Chandurkar disagreed, stating that arbitrary classification could not justify unequal treatment under the law.

3. Government cannot be judge in its own cause

Justice Chandurkar strongly criticized the rule for allowing the government to be the final arbiter of “fake news” about itself. He pointed out that the establishment of the FCU created a clear conflict of interest, with the government effectively acting as a judge in its own cause.

“The FCU in a sense is the arbiter in its own cause” which undermines impartiality and fairness.

He cited previous Supreme Court rulings that struck down similar conflicts of interest as unconstitutional.

“Taking into consideration all aspects including that the basis on which the information with regard to the business of the Central Government is to be identified for being categorized either to be fake or false or misleading, the FCU in a sense is the arbiter in its own cause," he said.

The amendment cannot be justified on the ground that the decision by a FCU can be challenged before a Constitutional court.

"The same cannot be treated as an adequate safeguard and it would not be of much consequence in the light of the decision in A. K.Kraipak & others,” Justice Chandurkar held.

He concluded that the government’s position undermines the impartiality necessary for such determination.

4. Vagueness and overbreadth

One of Justice Chandurkar’s primary criticisms was the vagueness of the rule.

Key terms like “fake,” “false,” and “misleading” were not defined, making the rule excessively broad. He argued that such vagueness allowed too much discretion to the FCU, leading to potential misuse.

"The absence of any clear indication of what constitutes ‘fake or false or misleading’ information renders the rule unconstitutional," Chandurkar held.

He echoed Justice Patel’s earlier judgment that the rule was susceptible to misuse and created an “illusion of choice” concerning the business of the Central Government.

Justice Gokhale had dismissed these concerns, suggesting intermediaries could seek clarification from authorities. However, Chandurkar ruled that this lack of clarity in the law itself made lawful content vulnerable to censorship.

5. Chilling effect on digital intermediaries

Regarding the chilling effect of the rule on intermediaries, Justice Chandurkar again sided with Justice Patel who had asserted that the requirement for intermediaries to not host undefined “patently fake or false or misleading” information could lead to self-censorship.

“The fact that the impugned Rule also results in a chilling effect qua an intermediary would render it invalid,” Justice Chandurkar ruled.

Justice Gokhale had downplayed the risk of a chilling effect, arguing that intermediaries had the option to consult authorities before taking down content. Chandurkar disagreed, maintaining that the rule's vagueness made lawful content vulnerable to removal, thus stifling free speech.

Justice Chandurkar also rejected the argument of the Central government that the rule can be read down to prevent it from being struck down.

He said that the rule’s fundamental flaws could not be corrected by interpretation alone.

Justice Gokhale had suggested that a reasonable effort, such as issuing a disclaimer, could mitigate the rule’s impact.

Justice Chandurkar reiterated the importance of not disregarding any term.

“Limiting the operation of the impugned Rule only to fake or false information, thereby ignoring the expression “misleading” which appears in Rule 3(1)(b)(v) would not be an exercise of reading down but would amount to “reading out” the said expression which has been held to be impermissible by the Supreme Court while dealing with a similar submission in Shreya Singhal,” he said.

He concluded that the rule did not meet the proportionality test required to justify curtailing fundamental rights.

Lawyers

Senior advocates Navroz Seervai and Darius Khambata with advocates Arti Raghavan and advocate Meenaz Kakalia appeared for Kunal Kamra

Advocates Shahdan Farasat abd Bimal Rajsekhar appeared for Editors Guild of India.

Advocates Gautam Bhatia and Aditi Saxena appeared the Association of India Magazines.

Solicitor General Tushar Mehta with Additional Solicitor General Devang Vyas along with advocates Rajat Nair, Gaurang Bhushan, Aman Mehta, Advait M Sethana, DP Singh, Sheelang Shah, Savita Ganoo, Anusha Amin, Vaibhavi Choudhary, Devanshu Gupta appeared for the Ministry of Electronics and Information Technology

Senior Advocate Arvind Datar along with advocates Nisha Bhambani, Bharat Manghani, Rahul Unnikrishnan, Drushti Gala and Gautam Jain appeared for various applicants/intervenors.

[Read Judgment]