Bombay HC Strikes Down Centre’s Proposed Fact-Checking Unit

SUMMARY

In his judgement, Justice AS Chandurkar observed that the units are violative of Articles 14 and 19 of the Constitution

The ruling comes eight months after a two-judge Bombay bench gave a split verdict in a petition filed by Kamra and others challenging the setting up of the FCUs

The IT Amendment Rules, 2023 empower the union government to set up FCUs for identifying “fake, false, or misleading” content online related to the Centre

The Bombay High Court (HC) on Friday (September 20) struck down Centre’s proposed fact-checking unit (FCU) while hearing a plea filed by standup comedian Kunal Kamra.

The Information Technology Amendment Rules, 2023, notified last year, empower the union government to set up FCUs for identifying “fake, false, or misleading” content online with regards to the Centre.

In his judgement, Justice AS Chandurkar observed that the units are violative of Articles 14 and 19 of the Constitution, adding that the expression “fake or false or misleading” is “vague and overbroad” in the absence of any definition.

“Having considered the matter extensively on the points of difference, I would conclude by opining that… Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 is violative of the provisions of Article 14, Article 19(1)(a) and Article 19(1)(g) of the Constitution… The said Rule as amended is ultra vires the Act (IT) of 2000,” said Justice Chandurkar.

He also noted that the “impugned rule” will result in a “chilling effect” on digital intermediaries.

The ruling comes eight months after a two-judge Bombay HC bench gave a split verdict on the petition filed by Kamra and others challenging the setting up of the FCUs. In their petition, the complainants claimed that the IT Rules amendments will put unreasonable restrictions on freedom of speech and expression.

They also claimed that the new mandates will lead to government-led censorship online and empower authorities to be the “prosecutor, the judge, and in that loose sense, the executioner” of what constitutes the ‘truth’ online.

In January, while Justice Patel struck down the rules saying they amounted to censorship, Justice Gokhale upheld the mandates noting that they did not have any “chilling effect” on free speech as argued. Eventually, the matter went to a third judge, Justice Chandurkar, who heard the matter and passed the ruling on September 20.

Notably, the Supreme Court (SC), in March, stayed an official notification announcing the operational status of the Centre’s official FCU. The court observed that the union government could not move ahead on the plan of setting up the unit until the Bombay HC decides on the constitutionality of the matter.