Ishika Kumar, Pune
On Friday, The Bombay High Court held it unconstitutional and struck down the amended Information Technology (IT) Rules which sought to identify fake and false content on social media against the government.
Justice A S Chandurkar was assigned to the matter as a “tie-breaker judge” post the division Bench in January which delivered a split verdict on the petitions which challenged the amended IT rules. Justice Chandurkar held in the Bombay HC that the IT rules violated certain constitutional provisions through their vague terms, this was held on Friday.
He stated “I have considered the matter extensively. The impugned rules are violative of Article 14 – Right to Equality before the law, Article 19(1)(a) – Freedom of Speech and Expression, Article 19(1)(g) – Freedom and Right to practice any Profession, Occupation, Trade or Business, of the Constitution of India,”. He further propounded that, the expression “fake, false and misleading” in the IT rules was “vague and hence, wrong” especially in the absence of any such definition, he added.
Along with this ruling, the HC also allowed the petitions filed by the stand-up comedian Kunal Kamra and others, which challenge the new rules, including the provision to set up a Fact Checking Unit (FCU), in order to identify the fake or false content disseminated about the government. The petitions are now referred to Justice Chandurkar to break the tie, as this case against the said IT rules comes consequential to a division bench of Justice Neela Gokhale and Justice Gautam Patel. They had delivered a split verdict in January. While Justice Patel had struck down the said rules, Justice Gokhale had upheld them, whereas Justice Patel had said that the rules amounted to censorship. Still, Justice Gokhale had opined that they did not have any kind of “chilling effect’ on free speech or, expression, as it was argued further. Justice Chandurkar on Friday said that he agreed with the opined dialogue provided by Justice Patel, who is now retired.
On the 6th of April 2023, the union government propagated amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules of 2021, including an additional provision for an FCU (Fact Checking Unit) to flag the fake, false or misleading online content concerning the government. Under the particular IT rules, if the FCU comes across any posts in the category of misleading facts and false information about the business and working of the government, it would flag that content and posts on those social media platforms and intermediaries. Once a post of this sort is flagged, the intermediary has the option of either just taking it down or putting a disclaimer/advisory on the same. In case the second option is taken, the intermediary loses its safe harbour or immunity and stands liable to legal action.