In a significant ruling, Justice A.S. Chandurkar of the Bombay High Court on September 20, 2024, declared the establishment of the Fact Check Unit (FCU) under the amended Information Technology (IT) Rules, 2023, unconstitutional. He observed that there is no such “censorship” when such material is in print, while it is liable to be suppressed as fake, false, or misleading in its digital form. He opined that Rule 3(1)(b)(v) of the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which empowered the Central Government to form FCUs, is ultra vires Articles 14, 19, and 21 of the Constitution.
In January 2024, the Division Bench of the Bombay High Court issued a split verdict, and consequently, the matter was referred to the tiebreaker judge, Justice A.S. Chandurkar. However, in March 2024, the government notified the establishment of FCU, after Justice Chandurkar refused an interim stay on the notification.
The matter reached Supreme Court on the aspect of interim stay alone. In March 2024, the apex court, while pausing the implementation of FCU, noted that the challenge to the validity of the IT Rules involves serious constitutional questions, and its impact on free speech and expression would need to be analyzed by the High Court. The court however clarified that it was not commenting on the merits of the case.
The Bombay High Court was deciding a batch of petitions, including one filed by stand-up comedian Kunal Kamra, who specifically challenged the power conferred upon the FCU under the impugned rule. The concern raised was that if the FCU came across any post that is fake, false, or misleading regarding any business of the Central Government, it would flag them to the intermediaries for necessary action. In his plea, Kunal Kamra stated that his ability to engage in political satire would be unreasonably and excessively curtailed if his content were subjected to a manifestly arbitrary fact check.
The tiebreaker judge found that the provisions empowered the government to decide what constitutes “false” or “fake” news without any objective criteria, clear definitions, or procedural safeguards, which was bound to have a “chilling effect” on freedom of expression. He added that the scope and applicability of the expression “fake, false, or misleading” under the impugned rule is “vague and overbroad” in the absence of clear definitions. The judge noted that the rule under challenge failed to meet the test of “proportionality” that any restrictive executive function must satisfy.
Though the Bombay High Court ruling is a victory for those who supported free speech, the legal battle on the issue may not yet be over. The writ petition will now be placed before the Division Bench for a suitable decision. It will be interesting to see if the government appeals the decision to the Supreme Court and to keep track of the verdict by the Apex Court in the matter.
