In a major setback to preventing the dissemination of fake news in India, the Bombay High Court on Friday (20th September) struck down crucial amendments made by the Modi government to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
A split verdict
The development came 8 months after a Division Bench of the Bombay High Court delivered a split verdict on the constitutional validity of Rule 3(1)(b)(v) of 2021 and its subsequent amendment two years later (also called IT Rules 2023). The new rule in question stated –
3. (1) Due diligence by an intermediary: An intermediary, including 1[a social media intermediary, a significant social media intermediary and an online gaming intermediary], shall observe the following due diligence while discharging its duties, namely:
(b) the intermediary shall inform its rules and regulations, privacy policy and user agreement to the user in English or any language specified in the Eighth Schedule to the Constitution in the language of his choice and shall make reasonable efforts 1[by itself, and to cause the users of its computer resource to not host], display, upload, modify, publish, transmit, store, update or share any information that
(v)deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature 3[or, in respect of any business of the Central Government, is identified as fake or false or misleading by such fact check unit of the Central Government as the Ministry may, by notification published in the Official Gazette, specify];
Essentially, the said rule allowed the Union government to set up a fact-checking unit (FCU) to identify any false or misleading information about it on social media platforms.
In January 2024, a Division Bench of the Bombay High Court, comprising Justices G.S. Patel & Dr. Neela Gokhale, heard arguments challenging Rule 3(1)(b)(v). One of the petitioners in the case happened to be controversial comedian Kunal Kamra.
Justice G.S. Patel struck down the amendment to the Rule in 2023, claiming it to be violative of Section 79 of the Information Technology Act, 2000, Articles 14, 19(1)(a) and 19(1)(g) of the Indian constitution and the principles of natural justice.
Justice Dr. Neela Gokhale upheld the constitutional validity of Rule 3(1)(b)(v) and added that it did not violate Articles 14 and 19(1)(a) of the Constitution of India.
Modi govt constitutes Fact-checking unit
On 20th March this year, the Union government notified the Fact Check Unit (FCU) under the Press Information Bureau (PIB as its fact check unit. For the unversed, PIB is a nodal agency of the Union Ministry of Information and Broadcasting (I&B).
“The Fact Check Unit under PIB was established in November 2019 with a stated objective of acting as a deterrent to creators and disseminators of fake news and misinformation. It also provides people with an easy avenue to report suspicious and questionable information pertaining to the Government of India,” it said in its notification.
The Supreme Court of India intervened in the matter and stayed the notification until the competition of proceedings by the Bombay High Court.
The requirement of a Tie Breaker Judge
On Friday (20th September), a third (‘Tie-Breaker’) judge of the Bombay High Court, Justice Atul Chandurkar, gave his verdict on the constitutionality of Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and its subsequent amendment in 2023.
Such a provision for a third judge to opine in case of a split verdict is provided under Clause 36 of the Letters Patent.
“The law in this regard is therefore clear and it is only the point/points of difference that would fall for consideration by the third Judge to express his opinion on the same. It thus follows that on a point/points on which one learned Judge of the Division Bench has not expressed any opinion whatsoever, the opinion on such point/points as expressed by the other learned Judge would not be the subject matter of consideration by the Reference Judge under Clause 36 of the Letters Patent read with Rule 7 Chapter-I of the BHCAS Rules,” Justice Atul Chandurkar noted (Page 44-45 of the verdict).
The present verdict and contentious observations
In a 99-page judgment [pdf], the ‘Tie-Breaker’ Judge of the Bombay High Court sided with the verdict delivered by Justice G.S. Patel of the Division Bench on 31st January this year.
On Page 70-71, Justice Atul Chandurkar stated, “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.“
The Bombay High Court judge stated that the fact-checking unit (FCU) of the government sought to restrict the fundamental right of freedom of speech and expression, guaranteed under Article 19(1)(a). It added that the government had no responsibility to ensure that citizens are not exposed to ‘fake or false information.’
“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,” the court noted.
Justice Atul Chandurkar further added, “I agree that the impugned amendment of 2023 to Rule 3(1)(b)(v) is ultra-vires Article 19(1)(a) and Article 19(2) of the Constitution.
The ‘Tie-Breaker’ Judge stated that there was no logic behind the scrutiny/ determination of fake information on social media by the Indian government when a similar exercise was not being done for print media.
“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 Editors Guild of India is justified in its grievance that it is concerned with both, the print media as well as digital platforms. There is thus an infringement of the right guaranteed under Article 19(1)(g) of the Constitution of India,” he ruled (Page 73 of the verdict).
Justice Atul Chandurkar also claimed that the Union government would be an arbiter in its case through its Fact-Checking Unit (FCU). He stated that the challenge of FCU decisions in constitutional courts is not an ‘adequate safeguard.’
“Taking into consideration all aspects including that the basis on which the information with regard to the business of the Central Government is to be identified for being categorized either to be fake or false or misleading, the FCU in a sense 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 in the light of the decision in A. K. Kraipak & others (supra). 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.“
(Page 76 of the verdict)
While objecting to the IT Amendment Rules of 2023, the Bombay High Court said, “I would therefore endorse the view expressed by Patel J that in the absence of any guidelines under the Rules of 2021 as amended to indicate the scope and applicability of the expression “fake or false or misleading”, the impugned Rule is vague and overbroad rendering it liable to be struck down.” (Page 83 of the verdict).
The amended Rule seeks to impose restrictions beyond those permissible under Article 19(2) of the Constitution. It also suffers from manifest arbitrariness for not being in conformity with the Act of 2000 on the principles laid down by the Constitution Bench in Association for Democratic Reforms and another (supra),” it continued.
On Page 91 of the verdict, Justice Atul Chandurkar agreed to the notion that the IT Rules of 2021 and its amendment in 2023 had the potential to cause a chilling effect – a term previously referred to in the split verdict of Justice G.S. Patel to describe factors invariably leading to ‘self-censorship.’
In conclusion, the ‘Tie Breaker’ judge noted that, “In my view, the challenge raised to the impugned Rule as not satisfying the proportionality test has to be upheld especially when it seeks to abridge fundamental rights guaranteed under Article 19(1)(a) and 19(1)(g) of the Constitution of India. Absence of sufficient safeguards against the abuse of the Rules that tend to interfere with the aforesaid 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” by relying upon the decisions 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.“
(Page 96-97 of the verdict)
Challenges for fact-checkers and potential harm caused by fake news peddlers
The judgment delivered by Justice Atul Chandurkar has effectively struck down the amendment made to Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
The power of the Union government to establish a fact-checking unit (FCU) to identify any false or misleading information about its ‘business’ on social media platforms has also been withheld.
The ruling comes at a time when social media is rife with disinformation campaigns targeting the Indian government, its various policies and the use of fake news to create law and order discord in society.
We have seen it in action first-hand following the implementation of the Citizenship Amendment Act (CAA) by the Indian Parliament.
‘Activists’, ‘journalists’ and habitual fake news peddlers made outrageous claims about Indian Muslims losing their citizenship to being sent to detention camps.
The result of large-scale fearmongering was the infamous squatting at Shaheen Bagh and the deadly riots in Delhi, which claimed more than 50 lives.
The disinformation continued during the implementation of farm laws, leading to the loss of lives and the desecration of the tricolour at the Red Fort. The High Court ruling that individuals are only entitled to free speech and expression and no right to truth is thus alarming.
The government’s initiative at fact-checking could have deterred those, who now make a living through the amplification of fake news, and creating mass hysteria.
While one might debate whether the 2023 IT Rules Amendment was broad, it was a step in the right direction (especially in a nation plagued by politically motivated disinformation campaigns). The verdict delivered by the Bombay High Court thus has the potential to embolden fake news peddlers.
