Describing it as an infringement on the right to equality and freedom of speech, Bombay high court quashed the amended Information Technology rules enabling the Centre to set up its own fact check unit (FCU) and flag social media content about its functioning as ‘fake, false or misleading’.
Holding the FCU to be unconstitutional, Justice A S Chandurkar of the Bombay High Court – who served as ‘tie-breaker judge’ after a division bench in Jan 2024 delivered a split verdict – described the expression, ‘fake, false and misleading’ as ‘vague and overbroad’.
“The FCU in a sense is an arbiter in its own cause,” said Justice Chandurkar, echoing the view of Justice Patel who had on Jan 31, 2024, struck down the rule as unconstitutional for its vagueness and disproportionality. Justice Patel had differed with Justice Neela Gokhale, on the two-judge bench that heard the matter and arrived at a split verdict, thus bringing it before a third judge. Justice Chandurkar said the FCU rule would have “a chilling effect” on individuals as well as intermediaries; the new rule could have led to loss of ‘safe harbour’ against legal action for social media platforms if FCU-flagged content was not acted upon.
The FCU rule is sans safeguards to prevent its abuse, said Justice Chandurkar, rejecting the Centre’s stand that making the FCU’s findings subject to a legal challenge was a safeguard.
“Under the right to freedom of speech and expression, there is no further ‘right to the truth’, nor is it the responsibility of the State to ensure that citizens are entitled only to ‘information’ that is not fake or false or misleading as identified by the FCU,” the HC said.
The judge also said there was no rationale to undertake an exercise in determining whether information related to the business of the Central govt is either fake or false or misleading when in digital form, but not doing the same when such information is in print.
Justice Chandurkar in a 99 page opinion accepted all major contentions raised by comedian Kunal Kamra and others who challenged its constitutional validity, citing its “chilling effect” on fundamental rights. The judge said he agreed with arguments put forward by senior counsel Arvind Datar and advocates Shadan Farasat and Gautam Bhatia that the rule violated Article 14 (right to equality), Article 19 (1) (a) (freedom of speech), and Article 19(1)(g) (freedom of trade) of the Constitution.
