On Friday, the Bombay High Court invalidated provisions that allowed the central government to establish a “fact check unit” aimed at removing online content considered fake or misleading.
This decision followed a referral verdict from a third judge, after a division bench led by Justice Gautam Patel and Justice Neela Gokhale delivered a split ruling on January 31. Justice Patel deemed the 2023 amendments to the Information Technology Rules unconstitutional, while Justice Gokhale upheld their validity.
In Friday’s ruling, Justice AS Chandurkar concurred with Justice Patel, finding Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, which was amended in 2023, to be unconstitutional.
This ruling stemmed from a series of petitions filed by stand-up comedian Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines, who argued that the amended Rules were ultra vires to Section 79 of the Information Technology Act, 2000, and violated Articles 14, 19(1)(a), and 19(1)(g) of the Constitution.
Earlier, petitioners contended that the amendments imposed an obligation on intermediaries to make “reasonable efforts” to prevent users from publishing content identified as fake, false, or misleading by the central government’s fact-checking unit.
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Further, they also argued that the vague definition of “business of the central government” created a chilling effect. Thus, leading intermediaries to remove any flagged content to avoid losing their safe harbor protections.
Meanwhile, during the proceedings, the central government had indicated it would not activate the fact check unit until the split verdict.
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However, after the split decision, the government reversed its stance, prompting Kamra and the associations to request Justice AS Chandurkar for a stay on notifying the fact check unit.
Following the government’s decision to proceed with notifying the fact check unit, a bench led by Chief Justice Dhananjaya Y Chandrachud stayed the implementation of the rules, citing a “prima facie case” for the stay.
The bench noted that the challenge to Rule 3(1)(b)(v) raised serious constitutional questions, particularly regarding its impact on the fundamental right to freedom of speech and expression under Article 19(1)(a).
