Mumbai: The Bombay High Court has struck down an amendment to the information technology rules that granted the government authority to establish fact-check units (FCUs) to identify and flag false or misleading news about it on social media and online platforms.
Justice AS Chandurkar of the high court on Friday held that Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 was “ultra vires”, and that expressions like “fake, false or misleading” as described in the rule were “vague”. It also did not satisfy the “test of proportionality”, the court held. ‘Ultra vires’ means an action that is beyond someone’s powers or authority.
On January 31, a division bench of the Bombay High Court had given a split verdict on the constitutional validity of the amendment. While Justice GS Patel ruled against the amendment, holding that it was violative of fundamental rights like equality before the law, freedom of speech and expression and right to practice a profession, Justice Neela Gokhale dismissed the petitions against the amendment. The matter was then referred to a third judge as a tiebreaker. The ruling of Justice Chandurkar will be placed before the division bench which will formally announce a 2:1 majority against the IT Rules.
The petitioners include comedian Kunal Kamra, the Editors Guild of India, News Broadcasters & Digital Association and the Association of Indian Magazines.
“In my view, the challenge raised to the impugned rule as not satisfying the proportionality test has to be upheld especially when it seeks to abridge fundamental rights” guaranteed under the Constitution, Justice Chandurkar observed in his 99-page order. “Absence of sufficient safeguards against the abuse of the rules that tend to interfere with the aforesaid fundamental rights are shown to be absent,” he said, siding with the verdict of Justice Patel.
Solicitor general Tushar Mehta for the government and senior counsels Navroz Seervai, Darius Khambata and Arvind Datar for Kamra and other petitioners had argued the case in the high court.
Originally, social and political satirist Kamra had approached the court, challenging Rule 3 (i) (II) (A) and (C) of the IT Rules. These rules are a part of the Information Technology Rules of 2022, which were first notified in February 2021 and were amended in 2022 and empowered the Centre to establish a government-run fact-check unit.
Last year in April, the IT ministry notified the establishment of a state-appointed body to fact-check all government-related content online deemed as misinformation or disinformation.
Under the laws, the government fact-check body would be responsible only for information related to central government schemes and would send relevant notices informing intermediaries of content that has been deemed misinformation or disinformation by it.
Before the court’s ruling, Kamra, through his lawyers, argued that the rules of 2023 are arbitrary and unconstitutional and the amendments do not fall within the scope of reasonable restrictions on freedom of speech provided in Article 19(2) of the Constitution.
Appearing for News Broadcasters & Digital Associations, senior counsel Arvind Datar argued that the rules did not follow the principles of natural justice as there is no provision for show-cause notice before taking action.
Countering this, solicitor general Mehta argued that the rules do not prohibit any expression of opinion or critical analysis against the government, but are only intended to rein in false news.
In its argument, the government also stated that the monitoring was restricted strictly to the business of the central government including its policies, programmes and notifications.
Justice AS Chandurkar of the high court on Friday held that Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 was “ultra vires”, and that expressions like “fake, false or misleading” as described in the rule were “vague”. It also did not satisfy the “test of proportionality”, the court held. ‘Ultra vires’ means an action that is beyond someone’s powers or authority.
On January 31, a division bench of the Bombay High Court had given a split verdict on the constitutional validity of the amendment. While Justice GS Patel ruled against the amendment, holding that it was violative of fundamental rights like equality before the law, freedom of speech and expression and right to practice a profession, Justice Neela Gokhale dismissed the petitions against the amendment. The matter was then referred to a third judge as a tiebreaker. The ruling of Justice Chandurkar will be placed before the division bench which will formally announce a 2:1 majority against the IT Rules.
The petitioners include comedian Kunal Kamra, the Editors Guild of India, News Broadcasters & Digital Association and the Association of Indian Magazines.
“In my view, the challenge raised to the impugned rule as not satisfying the proportionality test has to be upheld especially when it seeks to abridge fundamental rights” guaranteed under the Constitution, Justice Chandurkar observed in his 99-page order. “Absence of sufficient safeguards against the abuse of the rules that tend to interfere with the aforesaid fundamental rights are shown to be absent,” he said, siding with the verdict of Justice Patel.
Solicitor general Tushar Mehta for the government and senior counsels Navroz Seervai, Darius Khambata and Arvind Datar for Kamra and other petitioners had argued the case in the high court.
Originally, social and political satirist Kamra had approached the court, challenging Rule 3 (i) (II) (A) and (C) of the IT Rules. These rules are a part of the Information Technology Rules of 2022, which were first notified in February 2021 and were amended in 2022 and empowered the Centre to establish a government-run fact-check unit.
Last year in April, the IT ministry notified the establishment of a state-appointed body to fact-check all government-related content online deemed as misinformation or disinformation.
Under the laws, the government fact-check body would be responsible only for information related to central government schemes and would send relevant notices informing intermediaries of content that has been deemed misinformation or disinformation by it.
Before the court’s ruling, Kamra, through his lawyers, argued that the rules of 2023 are arbitrary and unconstitutional and the amendments do not fall within the scope of reasonable restrictions on freedom of speech provided in Article 19(2) of the Constitution.
Appearing for News Broadcasters & Digital Associations, senior counsel Arvind Datar argued that the rules did not follow the principles of natural justice as there is no provision for show-cause notice before taking action.
Countering this, solicitor general Mehta argued that the rules do not prohibit any expression of opinion or critical analysis against the government, but are only intended to rein in false news.
In its argument, the government also stated that the monitoring was restricted strictly to the business of the central government including its policies, programmes and notifications.
