Bombay HC strikes down Centre’s ‘fake news’ fact check rule — why did it need the opinion of a third judge?

Friday’s ruling will have a larger impact on FCUs that even some states such as Karnataka and Tamil Nadu have established.

What is the law in question?

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.

The amendment to Rule 3(1)(b)(v) of the IT Rules, 2021 expanded the general term “fake news” to include “government business”.

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 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.

The Rules raised concerns over free speech and the extent to which the government can regulate it. The FCUs allowed the government to be the “only arbiter” of truth in respect of business concerning itself.

How did the matter come before Justice Chandurkar?

Given the split verdict, as per rules of the Bombay High Court, the case was referred to a third judge who would hear the matter afresh.

Justice Chandurkar was assigned the task on February 7. On March 11, Justice Chandurkar refused to grant a stay on the notification to set up the FCU until he gave his final opinion. Following his interim order, the High Court dismissed the interim applications seeking the stay with 2-1 majority.

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 until the Bombay High Court took a final decision on the petitions challenging the amended Rules.

Justice Chandurkar concluded the hearing on August 8 and reserved his verdict.

What were the arguments before the High 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 Chandurkar strike down the Rules?

In his 99-page opinion on the split verdict, Justice Chandurkar agreed with Justice Patel, and held that the amended Rule 3(1)(b)(v) was violative of Articles 14 (equality before law), 19(1)(a) (freedom of speech and expression) and 19(1)(g) (right to practise a profession or trade) of the Constitution.

He said that the impugned Rule curtailed the fundamental rights of citizens beyond the reasonable restrictions prescribed under Article 19(2), which was “impermissible through the mode of delegated legislation”.

The judge held that the expressions “fake, false or misleading” in the Rule are “vague and overbroad”, and endorsed Justice Patel’s view that under the right to freedom of speech and expression, there is no further “right to the truth”.

It was “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”, Justice Chandurkar said.

He said that the centre’s claim that decisions given by the FCU can be challenged before a constitutional court “cannot be treated as adequate safeguard”, and therefore, the Rule cannot be saved by reading it down or making a concession of limiting its operation.

Echoing the views of Justice Patel, Justice Chandurkar noted that the impugned Rule resulted in a “chilling effect” on the intermediary due to the “threat of losing safe harbour”, and also on the freedom of speech — and was therefore liable to be struck down.

What was the split decision of the HC in January?

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 sinister and insidious facet to the impugned amendment is that this new agency (FCU) 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.

In a contrasting view, Justice Gokhale had 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, adding that the challenge to the character of FCU authority which was “yet unknown” was “premature”.

Dismissing the pleas, Justice Gokhale held: “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…”

What happens in this matter now?

Justice Chandurkar’s opinion has settled the matter in favour of the petitioners by a 2-1 majority. His opinion will be placed before a division Bench of two judges, which will formally announce the 2-1 majority against the impugned Rule. This is the procedural part.

There is an option of an appeal before the Supreme Court, given that similar issues are pending before the Delhi and Madras High Courts too.

There are also other aspects of the 2021 guidelines that are pending before various HCs. Among the key provisions are mandates for social media platforms to set up a grievance redressal and compliance mechanism, which include appointing a resident grievance officer, chief compliance officer, and a nodal contact person.