The Bombay High Court on Friday struck down the provisions in the 2023 Information Technology Amendment Rules that would have enabled the Centre to form a fact-checking unit to act against “fake news”, Bar and Bench reported.

The unit would have had the power to flag any information about the Union government and its workings as false.

The High Court was hearing petitions filed by stand-up comedian Kunal Kamra, the Editors Guild of India and the Association of Indian Magazines, which challenged the validity of the amendments to the Information Technology Intermediary Guidelines and Digital Media Ethics Code Amendment Rules, 2023.

Justice AS Chandurkar delivered a tie-breaking opinion on Friday. This came after the matter was referred to him because of a split verdict in the case by a division bench in January.

While Justice Gautam S Patel had ruled in favour of the petitioners and struck down the amendments, Justice Neela Gokhale had dismissed the pleas.

Chandurkar held that the provisions violated Article 14 and Article 19 of the Constitution. Article 14 provides for equality before the law and Article 19 guarantees the freedom of speech.

According to the amendments, if a court or the Union government notified an intermediary that “fake news” was being hosted on their platform, the intermediary would have to take down the content within 36 hours.

The content would have been flagged by the fact-checking unit, which the Centre notified on March 20. This came a week after the High Court rejected an application seeking a stay on its formation.

The Supreme Court on March 21 stayed the Centre’s notification of the fact-checking unit under the Press Information Bureau. The stay applied only till the High Court passed its final order on the petitions.

The case

In April 2023, the Centre argued before the Bombay High Court that false and misleading information could adversely damage electoral democracy, the economy and the country’s social fabric.

The Centre had told the court that the rules did not prohibit expressing opinions critical of the government.

The content flagged by the fact-checking unit to an intermediary such as Facebook and Instagram would not be removed automatically, the Centre submitted before the court. The intermediary would have had to either remove it right away or add a disclaimer that the content has been flagged, Bar and Bench had quoted Solicitor General Tushar Mehta as having said.

The amended rules attracted widespread criticism, with the Editors Guild of India saying it was “deeply disturbed” by them.

“In effect, the government has given itself absolute power to determine what is fake or not, in respect of its own work, and order take down [of the content],” the association had said in a statement.

The guild added that this would have “deeply adverse implications” for press freedom in India.

Digital rights organisation Internet Freedom Foundation had said the amendment would “cement the chilling effects on the fundamental right to speech and expression, particularly on news publishers, journalists [and] activists”.

It also pointed out that the words “fake or false or misleading”, as contained in the amended rules, were undefined and vague.

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