Mumbai, September 20: In a setback to the Centre, the Bombay High Court on Friday struck down the amendment to the Information Technology Act which gave power to the Centre to set up a Fact Check Unit (FCU) to identify fake, false or misleading content against the government on social media and online platforms, terming it as “unconstitutional”.
Rule 3(1)(b)(v) of the IT Rules amendment 2023 empowers the government to establish a Fact check Unit and unilaterally declare online content related to the government's business on social media platforms as fake, false or misleading. The social media intermediary then either has to pull down the information or be ready to defend its actions in court, if the case so arises.
The matter was assigned to Justice AS Chandurkar as ‘tie-breaker judge’, after a division bench, in January, delivered a split verdict on the petitions challenging the amended IT rules.
Justice Chandurkar held that the rules violated constitutional provisions. “I have considered the matter extensively. The impugned rules are violative of Article 14 (right to equality), 19 (freedom of speech and expression) and 19(1)(g) (freedom and right to profession) of the Constitution of India,” he said. The expression "fake, false and misleading" in the Rules was "vague and hence wrong" in the absence of any definition, he added.
The matter will now be placed before the division bench to be decided. The judgement goes against the Centre, with two judges ruling against it.
The HC was dealing with a batch of petitions, including by a stand-up artist Kunal Kamra, challenging the rules.
The pleas against the Rules were referred to Justice Chandurkar after a bench of Justices Gautam Patel and Neela Gokhale, on January 31, gave a split verdict. Justice Patel struck down the amended rule establishing FCU while Justice Gokhale ruled against the petitioners.
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.
Senior counsel Navroz Seervai, for Kamra, had argued that expressions “fake, false or misleading” are vague and undefined thus being susceptible to gross abuse and misuse. Similarly, the expression “business of the Central Government” has been stated in wide terms which would encompass each and every activity of the Central Government resulting in the Rule travelling beyond the empowering Section which is Section 87 of the Act of 2000.
