Breaking | Bombay High Court Allows Kunal Kamra's Plea, Strikes Down 2023 Amendment To IT Rules On 'Fact Check Units'

After receiving the 'opinion' of "tie-breaker" Judge, the Bombay High Court division bench today declared amendment to the IT Rules, 2021, "unconstitutional" and struck down the said amendment, which allowed the Central government to establish Fact Check Units (FCUs) to identify "fake and false" information about its business, being circulated on digital platforms.

The bench of Justices Ajay Gadkari and Dr Neela Gokhale allowed the petitions filed by comedian Kunal Kamra, Editors Guild of India, Association of Indian Magazines and News Broadcasters of Digital Association.

"In view of the majority opinion, the rule 3(1)(v) is declared unconstitutional and is struck down. Petitions are accordingly allowed," the bench said.

A division bench of Justices Gautam Patel and Dr Neela Gokhale had delivered a split verdict in the matter in January, this year.

While Justice Patel struck down the amendments, Justice Gokhale had upheld the same.

Following this, last week, Justice Atul Chandurkar pronounced his 'Opinion' and agreed with views of Justice Patel.

Since Justice Patel has now retired, the matter was placed before a division bench of Justices Gadkari & Gokhale, which pronounced the final verdict today and struck down the amendments with a 'majority view' holding it unconstitutional. 

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 his judgment, Justice Patel had 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.

He had also held that FCUs will unilaterally declare online content related to the government's business on social media platforms as fake, false or misleading, which in itself is a form of "censorship". The Judge had said that the government's position that it welcomed debate and dissent, while also arguing that the amendment to the IT Rule restricting speech is necessary, is contradictory. 

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

Citation: 2024 LiveLaw (Bom) 482