Centre's IT rules amendment unconstitutional, Bombay HC strikes down fact checking unit

The Bombay High Court on Friday struck down changes to the IT Rules brought by the Central government that allowed it to set up Fact Checking Units. The government had made the amendments in 2023 giving it the authority to identify and debunk 'fake and misleading' information related to its functioning on social media platforms.

The petition was filed by standup comic artist Kunal Kamra against the central government for setting up a fact-checking unit via amendment in the IT Rules.

Justice AS Chandurkar said the Information Technology Amendment Rules, 2023, which empowers the Centre to set up fact-check units (FCUs) for identifying fake news online, violates Articles 14 and 19 of the Constitution.

"I have considered the matter extensively. The impugned rules are violative of Articles 14 (right to equality), 19 (freedom of speech and expression) and 19(1)(g) (freedom and right to profession) of the Constitution of India," Justice Chandurkar said, and struck down the proposed IT amendments.

The expression "fake, false and misleading" in the IT Rules was "vague and hence wrong" in the absence of any definition, he added.

The case had gone to a third judge after a division bench of the Bombay High Court in January delivered a split verdict in this matter. The split verdict in January was delivered by a division bench of Justices Gautam Patel and Neela Gokhale.

While Justice Patel struck down the Rules, Justice Gokhale upheld them. Justice Patel had said the Rules amounted to censorship, but Justice Gokhale had said they did not have any "chilling effect" on free speech as argued. It was the third judge's verdict that came today.

In March, the Supreme Court stayed a notification by the Centre announcing the operational status of its official fact-check unit (FCU). The Supreme Court had said the Centre can't go ahead until the Bombay High Court decides on the constitutionality of the matter.

Kunal Kamra and other petitioners had said the amendments would put unreasonable restrictions on freedom of speech and expression.

The petitioners said the provision would lead to government-led censorship online and empower it to be the "prosecutor, the judge, and in that loose sense, the executioner" of what constitutes the 'truth' online.