Why two Bombay HC judges have differed on Centre’s ‘fake news’ fact check rule

Justice Patel held that the amended Rules were “nothing but censorship”. Justice Gokhale, on the other hand, said the Rules “did not bring any chilling effect” on the fundamental rights of citizens.

What are the Amended IT Rules?

In April 2022, the Ministry of Electronics and Information Technology (MEiTY) promulgated the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (2023 Rules), which amended the Information Technology Rules, 2021.

Under the Rules, if the FCU comes across or is informed about any posts that are “fake”, “false”, or contain “misleading” facts pertaining to the business of the government, it would flag it to the social media intermediaries.

The online intermediaries would then have to take down such content if they wanted to retain their “safe harbour”, that is, legal immunity with regard to third-party content published by them.

What were the core arguments of the petitioners and the Centre before the court?

Stand-up comic Kunal Kamra, the Editors Guild of India, the News Broadcasters & Digital Association, and the Association of Indian Magazines challenged the constitutional validity of the Rules, terming them arbitrary, unconstitutional, and in violation of fundamental rights.

The Centre said the Rules were not against any opinion, criticism, satire, or humour targeting the government, and were meant to only proscribe or prohibit the peddling of fake, false, and misleading facts on social media related to “government business”.

On what grounds did Justice Patel strike down the new IT Rules?

In his 148-page judgment, Justice Patel said that the petitioners were “correct in saying that the State cannot coercively classify speech as true or false and compel the non-publication of the latter”.

“That is nothing but censorship,” he noted.

The senior judge rejected “the attempt to curtail Article 19(1)(a) buried in the submission that the fundamental right is to ensure that every citizen receives only ‘true’ and ‘accurate’ information — as determined by the government”.

He observed that “It is not the business of the government to keep citizens from falling into error. It is the other way around. For it is very much (the) business, and should be the duty of every citizen to prevent the government from falling into error. Governments do not select citizens. Citizens elect governments.”

Justice Patel noted that the Press Information Bureau (PIB), which is fully government-controlled, “already has a significant social media presence” and is “already active on it”, and there was “no need” for an FCU.

“The sinister and insidious facet to the impugned amendment is that this new agency has far more than a loud bark: it has fangs and claws, for its unilateral view of what is or is not the ‘truth…’, Justice Patel said.

The amended Rule with FCU as the “sole authority” to decide what content is false, fake, and misleading has a “chilling effect on the right to free speech and freedom of press”, he said. Restrictions on freedom of speech must be “over-regulated”, he added.

Justice Patel said arguments that the central government, with all the “information and reach”, the “biggest megaphone” and the “loudest voice”, and the authority to shut down the Internet in a region, was in a “vulnerable position” and “cannot defend itself”, was “hardly tenable”.

The lack of definitions for words like fake, false, misleading, and government business, made the amendment “vague and overbroad”, he said.

And on what grounds did Justice Gokhale rule in favour of the amended IT Rules?

In her 92-page contrasting verdict, Justice Gokhale said that alleging bias against members of the FCU merely because they were government appointees was “unfair”, and the recourse to courts of law was always open in case of any bias.

The Rules “were not directly penalising” the intermediary or the user, and “did not bring any chilling effect on their rights”, she said.

“The rights of a user or any aggrieved person to approach the grievance redressal mechanism and the appellate authority is contemplated under the Rules and the competent court is the final arbiter of the issue,” she ruled.

Justice Gokhale said the impugned Rule was not violative of Article 14 (right to equality before law) of the Indian Constitution.

“No content is restrained by the impugned Rule, unless the content is patently false, untrue and is communicated with ‘actual malice’ i.e., with knowledge of its falsehood and with reckless disregard for the truth and is deceptively passed off as, and statement of, truth,” the judge noted.

She observed that the character of the FCU’s authority was “yet unknown”, and a challenge on the basis of apprehension and potential abuse was “premature”.

“Right of citizens to participate in the representative and participative democracy of the county is meaningless unless they have access to authentic information and are not misled by misinformation, information which is patently untrue, fake, false or misleading, knowingly communicated with malicious intent,” the judge held while dismissing the pleas.

What happens in this matter now?

As the two judges gave contrasting opinions, the Bench directed the High Court registry to place the petitions before Chief Justice Devendra Kumar Upadhyaya for referring it to a third judge.

The Centre continued its assurance of not notifying the FCU for another 10 days. The court said that once the matter has been assigned, substantive application for further continuance should be made to the third judge.

The third judge will hear the matter afresh. The findings of this judge will decide which way the final decision of the HC goes (by a 2-1 majority). This decision can then be challenged by either of the parties before the Supreme Court.