Why two Bombay HC judges have differed on Centre’s ‘fake news’ fact check rule

What are the Amended IT Rules?

• In April 2022, the Ministry of Electronics and Information Technology (MEiTY) introduced the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023. These rules amended the Information Technology Rules, 2021.
• According to these rules, if the Fact Check Unit (FCU) identifies or is informed about any “fake”, “false”, or “misleading” posts related to the government’s business, it would flag them to the social media intermediaries.
• The intermediaries would then need to remove such content to maintain their “safe harbour”, i.e., legal immunity for third-party content published by them.

What were the core arguments of the petitioners and the Centre before the court?

• Stand-up comedian Kunal Kamra, along with the Editors Guild of India, the News Broadcasters & Digital Association, and the Association of Indian Magazines, challenged the constitutional validity of the IT Rules.
• They termed the rules as arbitrary, unconstitutional, and a violation of fundamental rights. In response, the Centre clarified that the rules were not against any opinion, criticism, satire, or humour aimed at the government.
• Instead, they were intended to prohibit the spread of fake, false, and misleading facts on social media related to “government business”.

On what grounds did Justice Patel strike down the new IT Rules?

• Justice Patel, in his 148-page judgment, argued that the state cannot coercively classify speech as true or false and compel the non-publication of the latter, terming it as censorship.
• He rejected the attempt to curtail Article 19(1)(a) and stated that it is not the government’s business to keep citizens from falling into error. He criticized the FCU’s role as the sole authority to decide what content is false, fake, and misleading, stating that it has a chilling effect on free speech and press freedom.
• He also pointed out the lack of definitions for terms like fake, false, misleading, and government business, making the amendment vague and overbroad.
• On the other hand, Justice Gokhale, in her 92-page verdict, argued that alleging bias against FCU members merely because they were government appointees was unfair. She stated that the rules were not directly penalizing the intermediary or the user and did not bring any chilling effect on their rights.
• She also noted that the impugned rule was not violative of Article 14 (right to equality before law) of the Indian Constitution. She observed that the character of the FCU’s authority was yet unknown, and a challenge on the basis of apprehension and potential abuse was premature.
• She dismissed the pleas, stating that citizens’ right to participate in democracy is meaningless unless they have access to authentic information and are not misled by misinformation.

What happens in this matter now?

• Due to the contrasting opinions of the two judges, the petitions have been directed to be placed before Chief Justice Devendra Kumar Upadhyaya for referral to a third judge.
• The Centre has assured that the FCU will not be notified for another 10 days. Once the matter has been assigned, any application for further continuance should be made to the third judge.
• This judge will hear the matter afresh, and their findings will determine the final decision of the High Court by a 2-1 majority. This decision can then be challenged by either party before the Supreme Court.

Conclusion- The contrasting verdicts of the two judges on the amended IT Rules, which allow the government to identify “fake news” on social media, have led to a stalemate. The matter has now been referred to a third judge for a fresh hearing. The Centre has assured that the Fact Check Unit (FCU), a key component of the rules, will not be notified for another 10 days. However, The decision can be further challenged in the Supreme Court, indicating that the debate on these rules is far from over.