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    Bombay High Court Strikes Down the Amendment to the IT Rules pertaining to the Fact Check Unit

    • 26.10.2024
    • By Rishikaa & Mayank Bhandari
    Saikrishna & Associates

    In a landmark judgement, the Bombay High Court, on 26th September 2024, struck down the amendment to Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules (“IT Rules 2021”) and declared it as unconstitutional. The amendment to Rule 3(1)(b)(v) was notified on 6th April 2023 as per which an intermediary would have to make reasonable efforts by itself or cause its users to not host, display, upload, modify, publish, transmit, store, update or share any information in respect of the business of the Central Government that would have been identified as fake/false/misleading by a fact check unit established by the Central Government. The final decision was pronounced pursuant to the opinion of the third judge to whom the matter was referred after the split decision of the Division Bench of the High Court.

    By way of brief background, on 10th April 2023, a stand-up comedian, Kunal Kamra, filed a writ petition challenging the constitutionality of the amended Rule 3(1)(b)(v) of the IT Rules 2021. Thereafter, the Editors Guild of India and the Association of India Magazines also filed separate writ petitions challenging the amendment to Rule 3(1)(b)(v). As per the writ petitions, the amended Rule 3(1)(b)(v) violated the right to freedom of speech and expression granted under Article 19(1)(a), the right to practise any profession granted under Article 19(1)(g) and equality before law under Article 14 of the Indian Constitution and was ultra vires Section 79 of the Information Technology Act, 2000 (“IT Act”).

    Decision of the Division Bench

    The matter was heard by the Division Bench of the Bombay High Court which delivered a split verdict regarding the constitutionality of the amended rule. Justice G.S. Patel held that the amended Rule 3(1)(b)(v) is unconstitutional under Articles 14, 19(1)(a), and 19(1)(g) of the Constitution of India, as well as ultra vires under Section 79 of the IT Act. On the other hand, the second judge, Justice Dr. Neela Gokhale upheld its validity. The observations of the two judges are briefly noted below:

    • As per Justice Patel, free speech on the Internet is an integral part of Article 19(1)(a) and any restriction on the same must conform to Article 19(2) of the Indian Constitution. However, restricting content based on falsity as proposed by the amended rule is not recognised in Article 19(2). Justice Gokhale opined that the impugned rule was framed to carry out the provisions of the IT Act and the guidelines to be observed by an intermediary. There was no automatic deprivation of safe harbour on grounds beyond Article 19(2) of the Constitution.
    • As regards Article 19(1)(g), Justice Patel opined that the amended rule only impacted the information regarding the business of the Central Government on digital platforms however, the information in print media was not subject to the same level of scrutiny. However, Justice Gokhale opined that the concern regarding the unreasonable and excessive curtailment of content being subject to manifestly arbitrary fact checks was sufficiently taken care of under the scheme of the amended Rule and accordingly, did not violate Article 19(1)(g).
    • Justice Patel also held that by constituting the FCU, the Government became the final arbiter in its own cause and concluded that the Central Government could not serve as a judge in its own cause as it would be violative of the principles of natural justice and Article 14 of the Constitution. However, Justice Gokhale was of the view that since a grievance redressal mechanism exists for both intermediaries and users, a court of law is the ultimate arbiter of grievances in this regard and accordingly the amended rule was not violative of Article 14.
    • As regards the IT Act, Justice Patel stated that there are safeguards available for blocking access by the public under the IT Act and the provision for the creation of FCU was in the nature of substantive law which could not be done through a rule making exercise. Accordingly, the amended rule went beyond the scope of the IT Act. However, Justice Gokhale disagreed with this view.

    Opinion of the third judge:   

    Justice A.S. Chandurkar, serving as the reference judge, confined his opinion to the points of divergence between the Division Bench judges’ verdicts. He agreed with Justice Patel’s ruling and affirmed that the right to freedom of speech does not encompass a right to truth, nor does it impose a duty on the State to guarantee that citizens receive information deemed non-fake, false, or misleading as determined by the Fact Check Unit. Since the restrictions pertaining to falsity were not recognised under Article 19(2), the amended rule placed unreasonable restrictions on the fundamental right guaranteed under Article 19(1)(a). As regards the violation of Articles 14 and 19(1)(g), Justice Chandurkar sided with the view taken by Justice Patel noted above. Justice Chandurkar further opined that the amended Rule 3(1)(b)(v) was ultra vires the IT Act because it was not presented to Parliament in accordance with the requirements outlined in Section 87 of the IT Act. Further, the amended rule creates a substantive law that exceeds the authority of the parent statute.

    In addition to the above, the decisions also discussed the contours of the expression “knowingly and intentionally” and “fake or false or misleading” in the context of the amended Rule 3(1)(b)(v). Justice Chandurkar also held that the amended Rule cannot be saved either by reading it down or on the basis of any concession made in that regard.

    Given the totality of the observations, the amended Rule 3(1)(b)(v) also results in a chilling effect in respect of an intermediary.

    After considering the opinion from the third judge, the Division Bench of the Bombay High Court delivered its final judgment on 26th September 2024 wherein it declared the amendment dated 6th April 2023 to Rule 3(1)(b)(v) of the IT Rules 2021 as unconstitutional and struck the same down.

    Our Take

    This judgement to strike down the amendment to Rule 3(1)(b)(v) is monumental as it upholds the fundamental rights guaranteed under the Constitution. The IT Act allows the Government to take action against any information that is found to be inappropriate or unlawful. For instance, an intermediary is already required to take down content upon receiving actual knowledge, or on being notified by the Government or its agency that any information is being used to commit the unlawful act. Further, the Central Government can issue directions for blocking public access to any information if it is satisfied that it is necessary or expedient to do so, in the interest of inter alia the sovereignty and integrity of India, security of the State, public order or for preventing incitement to the commission of any cognizable offence etc. These measures vitiate the need for establishing an FCU for it to identify false information regarding the business of the Central Government, especially given the lack of an explanation from the government regarding what it means by the expression “business of the Central Government”.

    Having said that, this decision is a setback for the Central Government and it may file an appeal before the Supreme Court challenging this decision of the Bombay High Court.

    This article was first published on Saikrishna & Associates