Mumbai: The Bombay High Court on Thursday formally struck down the amended Information Technology (IT) Rules that allowed the government to establish a Fact Check Unit (FCU) to identify and regulate fake or false or misleading content on social media against the government, and termed them as “unconstitutional”.
The decision was pronounced by a decision bench following the opinion given by the third judge, Justice AS Chandurkar, last week which resulted in the striking down of the amendment by 2:1.
Justice Chandurkar, on September 20, held that the amended Rule Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, being “vague and broad” had the potential of causing a “chilling effect” not only on an individual but also on the social media intermediary.
Justice Chandurkar’s opinion had served as the tie-breaker judgment following a split verdict by a division bench of Justices Gautam Patel (now retired) and Neela Gokhale on January 31.
Following the third judge’s decision, a division bench of Justices Ajey Gadkari and Neela Gokhale on Thursday formally pronounced the verdict on a batch of petitions, including by stand-up artist Kunal Kamra, Editors Guild of India, News Broadcast and Digital Association and Association of Indian Magazines challenging the new regulations.
“In view of the majority opinion, the Rule 3(1)(V) is declared unconstitutional and is struck down. The petitions are accordingly allowed,” the bench said.
The case had initially been reviewed by a bench of Justices Patel and Gokhale, who delivered a split verdict in January. Justice Patel struck down the amended rule establishing FCU while Justice Gokhale ruled against the petitioners.
Justice Chandurkar’s opinion aligned with that of Justice Patel, emphasising the need to protect citizens’ rights to free expression.
The Centre amended the IT Act last year which empowered the Central government to flag “fake, false and misleading” news pertaining to the government on social media through FCU. If flagged, social media intermediaries could either remove the content or post a disclaimer, risking legal repercussions if they opted for the latter.
