IT Rules Amendment 2023: Bombay High Court delivers split verdict in Kunal Kamra challenge to Fact Check Unit

The Bombay High Court on Wednesday delivered a split verdict on the validity of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, specifically Rule 3 which gives power to the Central government to form a Fact-Check Unit (FCU) for identifying false or fake online news [Kunal Kamra v. Union of India & Ors and connected petitions].A Bench of Justices GS Patel and Neela Gokhale pronounced the verdict today in the four petitions filed by stand-up comic Kunal Kamra, the Editors Guild of India, the Association of Indian Magazines and the News Broadcast and Digital Association.While Justice Patel ruled in favour of the petitioners and struck down the provision, Justice Gokhale dismissed the petitions. "We have, with due respect to each other’s views, agreed to disagree. To my mind, it is possibly the most complete answer to the very issue at hand, reinforcing thoroughly my view: that in our country, and under our Constitution, an alternative view should not ever be allowed to go unsaid, unheard or unread," Justice Patel said in his 148 page opinion. .Justice Patel struck down the rule after holding that the Rule 3 attempted to curtail Article 19(1)(a) and was ultra vires the Information Technology Act.He opined that the Rule censors user content and effectively makes the Central government through the FCU, the sole arbiter of the what is fake, false or misleading. It effectively allows the government through its FCU the arbiter of the right to place an opposing point of view, the judge added. .The judge also said that the government was not a class of its own to justify preferential treatment. "It is posited on the assumption that government-related information is somehow special and deserving of extra protection," the judge reasoned.Justice Patel also noted that the phrases 'fake, false, misleading' and 'business of the government' were not defined which was reason enough to invalidate the piece of legislation. "There is no safeguard against bias. There are no guidelines, no procedure for hearing, no opportunity to counter the case that some information is fake, false or misleading. This is not, on the face of it, a matter of subjective satisfaction on objective material. The Rule clearly makes the Central Government a judge in its own cause, the cause being the business of the Central Government," the single-judge said while striking down the rules. .Justice Gokhale on the other hand opined that the Rule was neither ultra vires the IT Act nor unconstitutional. She opined that it was merely an apprehension by the petitioner that the FCU will be a biased body consisting of persons picked by the government and acting on its behest without any objective adjudication. "It will be a great disservice to the members of the FCU to attribute bias and predisposition to them, merely on account of them being government appointees," the judge said. .She also remarked that none of the intermediaries had approached the court complaining of a 'chilling effect' or loss of immunity.The judge elaborated that in the entire scheme of the Rule, there was no restriction on free speech of the user or any penal consequences to be faced by them. "What the Petitioners apprehend is an indirect intrusion on their right by the intermediaries who they say, may take down their content for fear of loss of safe harbour. Enforceability of their rights lies against the intermediary, in terms of a user agreement executed by and between the parties, independent of any government agency," the judge highlighted. She concluded that the rule could not be struck down as invalid merely on concerns of its potential abuse..Senior Advocates Navroz Seervai and Arvind Datar, along with Advocates Shadan Farasat and Gautam Bhatia, had urged the Court to set aside the provisions of the amendment under challenge on the following grounds:Rules of 2023 are arbitrary and unconstitutional and the amendments do not fall within the scope of reasonable restrictions on freedom of speech provided in Article 19(2) of the Constitution. Rules did not follow the principles of natural justice as there is no provision for show-cause notice before taking action.The definitions in the Rules for what is “blatantly false, fake and misleading” and “government business” are not specific but ambiguous and over-broad; government would be a judge on the veracity of the information on social media. Rules have a “chilling effect” - the provisions give the government “monopolistic power” to decide what information is required to be circulated about its functioning. The communication by FCU is a mandate and not an advisory..Solicitor General (SG) Tushar Mehta, for the Union Ministry of Electronics and Information Technology (MEITY), had opposed the submissions of the petitioners, claiming that they had misunderstood the amendments on the following grounds: Rules do not prohibit any expression of opinion or critical analysis against the government, but are only intended to rein in false news.Rules were framed taking into consideration the fundamental rights of five stakeholders - the internet user, the intermediary, the recipient, the government and the public at large.It neither contains penal provisions nor does it criminalise anything.When FCU flags any content to the intermediary, it does not lead to an automatic take down of the content. The intermediary had a choice to either take it down right away or just put a disclaimer that the content has been flagged. FCU’s monitoring was restricted strictly to the business of the Central government, which included details about the policies, programmes, notifications, rules, regulations, implementation, etc..SG Mehta had earlier assured the Court that the Ministry would not notify the formation of FCUs till the judgment is pronounced.The said assurance will continue for 10 more days..Seervai along with Senior Advocate Darius Khambata and advocates Arti Raghavan, Vrinda Bhandari, Gayatri Malhotra, Abhinav Sekhri, Tanmay Singh and Meenaz Kakalia appeared for Kamra. Advocates Shadan Farasat, Hrishika Jha, Natasha Maheshwari and Bimal Rajsekhar appeared for Editors Guild of India.Datar along with advocates Nisha Bhambani, Rahul Unnikrishnan, Bharat Manghani and Gautam Jain appeared for News Broadcasters & Digital Association. Advocates Gautam Bhatia, Radhika Roy and Aditi Saxena appeared for Association of Indian Magazines.Mehta along with Additional Solicitor General Devang Vyas and advocates Rajat Nair, Gaurang Bhushan, Aman Mehta, DP Singh, Savita Ganoo, Anush Amin, Vaishnavi appeared for the Ministry of Information and Technology. .[Read Judgment]