Mumbai: The Bombay High Court on Friday (September 20) held unconstitutional the amended Information Technology (IT) Rules and struck down the amended rules empowering the Centre to form Fact-Check Units (FCUs) to identify fake and false content on social media against the government.
The verdict has come from the ‘tie-breaker’ judge after a division bench delivered a split verdict
Justice AS Chandurkar, who was appointed as `tie-breaker judge’ after a division bench of the High Court delivered a split verdict on the pleas, including one filed by stand-up comedian Kunal Kamra. challenging the amended IT rules, said that the amended rules violated constitutional provisions.
“I have considered the matter extensively. The impugned rules are violative of Article 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 added that the expression “fake, false and misleading” in the Rules was “vague and hence wrong” in the absence of any definition.
What did the petitioners argue?
Kamra and others had challenged the amended rules, submitting that the amendments in the IT Rules violated Article 14 (right to equality) and Article 19(1)(a)(g) (freedom to practise any profession, or to carry on any occupation, trade or business) of the Constitution and it would put unreasonable restrictions on freedom of speech and expression.
What did the division bench held in January?
A division bench comprising Justice Gautam Patel (now retired) and Justice Neela Gokhale delivered a split verdict in January on pleas challenging the amended IT Rules.
While Justice Patel, who struck down the amended Rules, said that the amended Rules amounted to censorship, Justice Gokhale, who upheld the amended Rules, said that the amended Rules did not not have any chilling effect on free speech.
Justice Patel struck down the amendment to Rule 3(1)(b)(v) of the Rules of 2021 as being ultra vires the provisions of Articles 14, 19(1)(a) and 19(1)(g) of the Constitution of India, section 79 of the Information Technology Act, 2000 and also being in violation of the principles of natural justice.
Justice Gokhale upheld the validity of the amended Rule holding the same to be not violative of Articles 14 and 19(1)(a) of the Constitution of India and not ultra vires the provisions of the IT Act nor was it contrary to the judgment of the Supreme Court. She further held that the exemption under section 79 of the IT Act would cease to operate only if the offensive information as provided in the said Rule affected any restriction under Article 19(2) of the Constitution of India.
Amendment in rules included a provision for an FCU to flag fake and false online content against government
The Centre had on April 6, 2023 promulgated amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including a provision for an FCU to flag fake and false online content against the government to the social media intermediaries, which will have the option to either take down the post or put a disclaimer on the post and in choosing the second option, the intermediary stood to lose its safe harbour/immunity and liable for legal action.