The Bombay High Court declared amendments made by the Centre to the Information Technology (IT) Rules unconstitutional in a landmark judgment on Friday. The Amendments notified by the Centre in June 2021 let it set up an independent Fact-Check Unit (FCU) that could identify social media content as "fake, false or misleading" whenever it relates to government activities.
A three-judge bench, split half to half, announced that by creating the FCU, the government had violated key constitutional rights. It was in January when Justice A.S. Chandurkar became a tie-breaker judge. Justice Chandurkar opined that amendments in IT Rules violate Articles 14 and 19 of the Indian Constitution that guarantee right to equality and freedom of speech and expression and freedom of profession. "The term 'false, fictitious, and misleading' is “vague and hence wrong," His ruling echoed the stance of Justice Gautam Patel who had earlier termed the rules as akin to censorship, arguing that they disproportionate violation of the right to free speech.
Split Verdict and Tie-Breaker
This came at the heels of a division bench by Justices Gautam Patel and Neela Gokhale which incidentally delivered conflicting judgments in January 2024. The former quashed the IT Rules for its unconstitutional nature while the latter upheld, free speech as argued by the petitioners. The tiebreaker happened to be on the side of free speech protection.
What the Petitioners Argued
The case was filed by a group of petitioners with three moving parties, political satirist Kunal Kamra, the Editors Guild of India, and some other associations related to media. A point of contention was that the amendments abrogate fundamental rights because of their grant of undue discretion on the Centre as regards what constitutes "misleading" content. Since Kamra is a constant critic of the government's policies, he averred that the rules would, in effect, amount to arbitrary censorship of his work.
Government's Defense
The solicitor general, Tushar Mehta, speaking for the central government, argued robustly that the amendment was justified because the Fact-Check Unit was a concept to check facts rather than satire or criticism. But the court did not find the reason adequate as pointed out by the vague terms on which they proceeded and their misuse in practical application.
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