The Bombay High Court, in a landmark ruling, struck down the 2023 amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which had granted the Central government the authority to form Fact Check Units (FCUs) to identify and label 'fake' or 'misleading' content related to government activities on social media platforms. The amendments, particularly Rule 3, were introduced to curb the spread of false information online. However, they faced widespread criticism from various quarters, including legal experts, civil rights groups, and public figures, who argued that such powers could be misused to suppress free speech.
The legal challenge to these amendments was led by a group of petitioners, including noted stand-up comedian Kunal Kamra, who contended that the amendments were ultra vires (beyond the scope) of Section 79 of the Information Technology Act, which provides 'safe harbor' protection to intermediaries. Kamra and others argued that the FCUs, by exercising broad powers to regulate content, violated key constitutional provisions—specifically, Article 14, which guarantees the right to equality, and Article 19, which protects freedoms of speech, expression, and the right to pursue any profession. The petitioners raised concerns that the amendments could disproportionately affect digital media, curbing their ability to function independently and stifling dissent against the government.
In January 2024, the Bombay High Court’s division bench, comprising Justices Gautam Patel and Dr. Neela Gokhale, delivered a split verdict. Justice Patel took a critical view of the amendments, asserting that the creation of Fact Check Units amounted to a direct infringement of the freedom of speech and professional rights under Article 19(1)(g) of the Constitution. He emphasized that the rules created a distinction between online content and print media, which could lead to unfair treatment of digital platforms. According to him, such units had the potential to curtail the operations of digital news entities and other online platforms without adequate safeguards.
Conversely, Justice Gokhale offered a more favorable interpretation of the amendments, dismissing the notion that they violated constitutional provisions. She argued that the amendments did not impose any penal consequences on users and were not designed to restrict free speech. Justice Gokhale further noted that the concerns of bias raised by the petitioners were 'unfounded' and lacked substantive evidence. In her view, the amendments were a legitimate tool to combat the spread of false information, which had become a growing problem in the digital age.
Given the split verdict, the case was referred to a third judge, Justice Atul Chandurkar, whose ruling would ultimately decide the outcome. On Friday, Justice Chandurkar delivered his judgment, concurring with Justice Patel’s view. He held that the amendments were indeed violative of both Article 14 and Article 19 of the Constitution, as they granted excessive powers to the government without proper checks and balances. The tie-breaker bench declared the 2023 amendments unconstitutional, effectively striking them down by a 2-1 verdict.
This ruling is a significant victory for free speech advocates and digital media platforms, as it curtails the government's ability to directly influence or control the narrative on social media through the establishment of Fact Check Units. It also reinforces the principle that any attempt to regulate content must adhere to the constitutional guarantees of equality and free expression. However, it remains to be seen whether the government will seek to appeal the ruling or introduce new regulations that address the concerns raised by the court. This decision marks an important moment in the ongoing conversation about the balance between combating misinformation and preserving fundamental rights in India's digital landscape.
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