Bombay HC strikes down Centre’s Fact Check Unit: Unconstitutional

Justice Chandurkar agreed with the opinion of Justice Gautam S Patel (now retired), who was part of the division bench that delivered the split verdict earlier, and held that the amendment to the IT Rules, 2023 through Rule 3(1)(b)(v), was violative of Article 14 and 19 (1) (a) and 19 (1) (g) of the Constitution.

Article 14 refers to equality before the law and the provisions referred to under Article 19 pertain to the right to freedom of speech and expression, and the right to practice a profession or trade.

Justice Chandurkar held that the expressions “fake, false or misleading” are “vague and overbroad”, and that the “test of proportionality” is not satisfied. “Impugned Rule as amended be struck down. All the petitions will be placed before the division bench to be decided,” the judge held.

Justice Chandurkar’s opinion will now be placed before a division bench of two judges, which will formally announce the 2:1 majority against the impugned rules.

According to the IT rules amended in April 2023, content marked by the FCU as “fake or misleading” will have to be taken down by online intermediaries if they wish to retain their “safe harbour” (legal immunity against third-party content).

However, Justice Chandurkar endorsed the view of Justice Patel that under the right to freedom of speech and expression, there is no further “right to the truth”. He noted that it was also “not a responsibility of the state to ensure that the citizens are entitled only to ‘information’ that was not fake, false or misleading as identified by FCU”.

The judge noted that the impugned rule sought to “restrict the fundamental right under Article 19 (1) (a) (Freedom of speech and expression) by placing restrictions which were not as per reasonable restrictions provided under Article 19 (2)”. “The same was impermissible through the mode of delegated legislation,” the opinion reads.

Justice Chandurkar also noted that there was “no basis or rationale” to determine whether information related to the business of the Central Government is either fake or false when in digital form, while not taking the similar exercise when the same information is in print.

He emphasised that the impugned amendment had not been effected as per the IT Act, 2000 and it was not shown by the Centre that the proposed amendment was laid before each house of Parliament in a manner prescribed as per section 87 of the 2000 law.

Justice Chandurkar ruled that the Centre’s claim that decisions given by the FCU can be challenged before a constitutional court “cannot be treated as adequate safeguard”. The judge said the “impugned Rule cannot be saved by reading it down or by making any concession of limiting its operation”.

Justice Chandurkar, while agreeing with Justice Patel, noted that the impugned rule resulted in a “chilling effect” for the intermediary due to “threat of losing safe harbour”, therefore should be rendered “invalid” and was “liable to be struck down”.

On January 31, in the split verdict by the division bench, Justice Patel agreed with the petitioners’ contentions and struck down the amendment while Justice Neela K Gokhale upheld the Government’s side. Thereafter, under the High Court Rules, Chief Justice Devendra Kumar Upadhyaya assigned Justice Chandurkar to give a deciding opinion as the third judge.

Subsequently, the petitioners in the matter, stand-up comedian Kunal Kamra, Editors Guild of India, News Broadcasters and Digital Association Association of Indian Magazines, filed an interim application seeking a stay on the implementation of the FCU and directions that it will not be formed till the third judge passes the deciding opinion on merits.

On March 11, Justice Chandurkar refused to grant a stay on a notification to set up a fact-check unit till he gave his final opinion on the pleas’ merits. He clarified at the time that “it was only a prima facie consideration of the issue” that arose in the context of the interim applications.

Following Justice Chandurkar’s opinion, the High Court dismissed the interim applications. And on March 20, the Centre notified the FCU under the Press Information Bureau (PIB). However, a day later, the Supreme Court stayed the operation of the notification pending the final decision from the Bombay High Court.