Citizens Have 'Right To Free Speech', Not State's Burden To Ensure That They Only Know Truth: Bombay HC On IT Amendment Rules

The Bombay High Court's 'Tie-Breaker' Judge Justice Atul Chandurkar, while opining that the amendments to the Information and Technology Rules, 2021 are 'unconstitutional' held that the citizens only have the 'right to free speech and expression' but not a 'right to truth' and thus the State cannot claim to have a responsibility to ensure that citizens know only 'truth' and not 'fake or false information.'

Justice Chandurkar has given his opinion on a bunch of petitions led by comedian Kunal Kamra, challenging the amendments to the IT Rules, 2021, more specifically Rule 3(1)(b)(v), based on which the Central government could establish 'Fact Check Units' (FCUs) to identify "fake and misleading" information about its business on social media platforms.

The petitions were initially heard by a division bench of Justices Gautam Patel and Dr Neela Gokhale, however, the two judges, delivered a split verdict in January this year, due to which Justice Chandurkar was assigned the matter for a third opinion so that the issue could be finally decided.

In his opinion, pronounced on Friday, Justice Chandurkar agreed with the views of Justice Patel on almost all the points and differed with what Justice Gokhale held. The 'tie-breaker' judge held that the amendment was ultra vires to Articles 14 (right to equality) and 19(1)(a) (right to free speech).

"I would agree with the view of Patel, J that under the right to freedom of speech and expression, there is no further 'right to the truth' nor is it the responsibility of the State to ensure that the citizens are entitled only to 'information' that was not fake or false or misleading as identified by the FCU. Rule 3(1)(b)(v) seeks to restrict the fundamental right guaranteed under Article 19(1)(a) by seeking to place restrictions that are not in consonance with Article 19(2) of the Constitution," Justice Chandurkar observed in his order.

Amendment infringes right to equality on digital platforms

Further while holding that the amendment is against the 'right to profession' the judge noted that a piece of information that is not subjected to the rigors of Rule 3(1)(b)(v) of the Rules of 2021 when in the print media but is subjected to those rigors when in the digital form.

"There is no basis or rationale for undertaking the exercise of determining whether any information in relation to the business of the Central Government is either fake or false or misleading when in the digital form and not undertaking a similar exercise when that very information is in the print form," the judge held.

The judge while referring to the very aspect, held that the amendment would also infringe the right to equality of digital platforms as the amendment would not apply to information put on digital media but not when published in a newspaper.

In his 99-page judgment, Justice Chandurkar criticised the Central government for attempting to become an 'arbiter' in its own case.

The FCU, the judge noted, is to decide whether any information with regard to the business of the Central government is either fake or false or misleading and the Central government is the aggrieved party, the FCU constituted by it is required to decide which piece of information with regard to its business, is either fake or false or misleading.

"Taking into consideration all aspects including that the basis on whinse is the arbiter in its own cause. By contending that the decision of the FCU can be subjected to challenge before a constitutional Court, the same cannot be treated as an adequate safeguard and it would not be of much consequence. I am therefore inclined to agree with the view of Patel J that as the Central Government itself would constitute the FCU, it is an arbiter in its own cause," the judge observed.

No guidelines to be followed by FCUs

The judge further noted that the FCUs will identify information which is fake or false with regard to the business of only the Central government and not of the State governments.

Moreover, the judge found that there were no guidelines to be followed by the FCUs to ascertain or declare certain pieces of information as false or fake news.

"Absence of sufficient safeguards against the abuse of the Rules that tend to interfere with the fundamental rights are shown to be absent. Having found that the validity of the impugned Rule cannot be saved by reading it down as urged, the contention raised on behalf of the Union of India of having adopted the least restrictive mode to prevent the spread of 'fake or false or misleading information' in that regard cannot be accepted. I therefore find that even on the ground of proportionality, the impugned Rule cannot be sustained as observed by Patel J," the bench opined.

With these observations, Justice Chandurkar agreed with Justice Patel on almost all the issues before him and has now ordered the instant matter to be kept before a division bench so that the matter can be disposed of with a new and fresh opinion on the issues involved.

Appearance:

For Petitioners:

Senior Advocates Navroz Seervai and Darius Khambata along with Advocate Arti Raghavan and Meenaz Kakalia appeared for Kunal Kamra.

Advocates Shahdan Farasat and Bimal Rajsekhar appeared for Editors Guild of India.

Advocates Gautam Bhatia and Aditi Saxena appeared for Association of India Magazines.

Senior Advocate Arvind Datar along with Advocates Nisha Bhambani, Bharat Manghani, Rahul Unnikrishnan, Drushti Gala and Gautam Jain appeared for News Broadcasters & Digital Association.

For Respondents:

Solicitor General Tushar Mehta and Additional Solicitor General Devang Vyas along with Advocates Rajat Nair, Gaurang Bhushan, Aman Mehta, Advait Sethana, Dhirendra Pratap Singh, Sheelang Shah, Savita Ganoo, Anusha Amin, Vaibhavi Choudhary and Devanshu Gupta represented the Respondents.

Case Title: Kunal Kamra vs Union of India (WP(L)9792 of 2023)

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