IT Rules Amendment & Fact-Check Units: Bombay High Court's Tie-Breaker Judge Reserves Judgment

The Bombay High Court's "tie-breaker" judge Justice Atul Chandurkar on Thursday reserved his judgment in petition filed by comedian Kunal Kamra challenging the IT Amendment Rules, 2023, which empowers the Central government to establish Fact Checking Units (FCUs) to identify any "fake or misleading" information on social media. 

Justice Chandurkar heard the detailed submissions by Solicitor General Tushar Mehta and Senior Advocates Navroz Seervai and Arvind Datar along with advocates Shadan Farasat and Gautam Bhatia since February 2024 on various dates, and reserved the judgment on Thursday.

Notably, a division bench of Justices Gautam Patel and Dr Neela Gokhale had on January 31, this year, delivered a split verdict with Justice Patel striking down the rules in entirety and Justice Gokhale upholding the validity of the Rules.

In his judgment, Justice Patel held that the proposed FCUs under the 2023 amendment to the IT Rules 2021 directly infringed fundamental rights under Article 19(1)(g) due to the differential treatment between online and print content. Article 19( 1)(g) of Constitution of India deals with freedom to practice one's profession or business and Article 19 (6) enumerates the nature of restriction that can be imposed.

Justice Gokhale on the other hand opined that the Rule was not unconstitutional. She held that the apprehension by the petitioner that the FCU will be a biased body consisting of persons picked by the government and acting on its behest was 'unfounded.' She elucidated that there was no 'restriction on free speech' nor do the amendments suggest of any penal consequences to be faced by a user.

Following the split verdict, the Chief Justice of Bombay High Court had in February appointed Justice Chandurkar as the 'tie-breaker' judge to hear the matter and give a final opinion on the petitions.

Social media intermediaries like 'X', 'Instagram' and 'Facebook.' would either have to take down the content or add a disclaimer once the government's FCU identifies the content on their platform, the amended rules mandate.

The petitioners claimed the two Rules are ultra vires to Sections 79 which safeguards intermediaries from action against third-party content and Section 87(2)(z) and (zg) of the IT Act 2000. Further they violate fundamental rights granting citizen 'equal protection under the law' under Article 14 & freedom of speech under Articles 19(1)(a) & 19(1)(g) of the Constitution of India, it was contended.

In his plea, Kunal Kamra stated that he is a political satirist who relies on social media platforms to share his content and the Rules could lead to arbitrary censorship of his content as it could be blocked, taken down, or his social media accounts could be suspended or deactivated.

However, the Ministry of Information and Technology has claimed that it would be in public interest for “authentic information” related to the government's business to be ascertained and disseminated after fact checking by a government agency (FCU) “so that the potential harm to the public at large can be contained.”

In the earlier hearings, Mehta clarified that intermediaries like Facebook, X, Instagram etc are not at liberty to do “nothing” once content on their platform is flagged as fake, false or misleading by the FCU. If a social media or news website continues to host flagged information it will have to defend its stand in court if action is taken, he said.

Appearing for Karma, senior counsel Seervai had pointed out the lack of remedies available to users if their content is flagged by the FCU as fake, false or misleading (FFM) and argued the only recourse for users is a writ petition.

Seervai submitted instances where the Press Information Bureau (PIB) has been called out for putting out incorrect information, to imply the Government may not always disseminate true and correct facts. "How it throttles information that the embarrasses the government."

Giving an example of how this would play out, Seervai said, “WHO may say 50 lakh people died of Covid. India says only 5 lakh died. FCU says what WHO claims is false. See how governments will be shielded? "