[IT Rules amendment] Government is not a repository of truth that cannot be questioned: Bombay High Court

While hearing a batch of petitions challenging amendments to the Information Technology Rules of 2023 which provided for formation of Fact Check Units (FCUs), the Bombay High Court on Friday remarked that the government is not a repository of truth that could not be questioned..A Division Bench of Justices GS Patel and Neela Gokhale questioned the power of a government body to decide what is false as well as the need for a government to have such regulations.“One may be right to say that these Rules are excessive. You cannot bring a hammer to kill an ant. But leaving this excessive part aside, I still don't understand what was the concern that necessitates this amendment,” Justice Patel observed..The Court reiterated that governments were answerable to its citizens who could question and demand answers. “In the democratic process, the essence of discourse is that the government is as much a participant as a citizen is. It is not a repository of truth that cannot be questioned. It is a fundamental right to doubt, to question, to demand answers from government and it is duty of government to respond.".The Bench was hearing petitions by stand up comic Kunal Kamra, the Editors Guild of India, the Association of Indian Magazines and the New Broadcast and Digital Association challenging amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.Rule 3 specifically empowered FCUs to identify and tag what it considered was ‘false or fake online news’ with respect to any of the government's activities.The petitioners today concluded their submissions on the constitutional challenge to the amendments. .Advocate Gautam Bhatia for Association of Indian Magazines submitted that the Constitution had not authorised the government to classify and arbiter speech as true or false. He added that the amendment was violative of the parent act, the Information Technology Act. .Senior Advocate Arvind Datar, appearing for the News Broadcast and Digital Association, argued that the amendment did not pass the test of constitutionality due to absence of definitions of phrases. “Rule 3(1)(b)(v) has to be quashed as the government has not defined what is business of government,” he argued.He added that the new Rules introduced through the amendment could not be provided even by Parliament. “In the present case, not a single test is satisfied on proportionality. Can any democracy, that it is a legitimate state aim that they will decide what people should know? What is the rationale connection?” Datar asked. .The Court reiterated that while the fundamental right to speech under Article 19(1)(a) did not include a right to lie, it included a right to be defend the correctness of a statement made.“Government affidavit says if there is no stringency of government rules, intermediaries will run amok. which is not the case at all. Because if PIB tweets something on its social media accounts, what will you do? Nothing,” Justice Patel said. .The Bench also questioned whether FCUs had any boundaries to the exercise of their power. “This power identified by the FCU to find out misleading, fake. I am asking whether a court can do it? We are trying to understand this. Who fact checks the FCUs? I want to know what the boundary is. I do not know what the boundary is. Because then I do not know what is being tested under 19(2).".Solicitor General Tushar Mehta will commence arguments on behalf of the Union Ministry of Electronics and Information Technology (MeitY) from July 29..Why should Fact Check Units under IT Rules 2023 apply only for government business? Bombay High Court asks