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Centre’s Fact Check Unit Unconstitutional: Bombay HC
The Hon’ble Bombay High Court has struck down Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, as amended in 2023, that provided for the establishment of a fact-checking unit by the Central Government as unconstitutional. The judgment was delivered by Hon’ble Justice Atul Chandurkar, while acting as a ‘Tie-breaker’ judge in the case of Kunal Kamra v. Union of India, [Civil Writ Petition (L) No. 9792 of 2023] on 20th September 2024, upholding the verdict of Hon’ble Justice G.S. Patel that such amendment to the Rule was violative of Articles 14, 19(1)(a), 19(1)(g) of the Indian Constitution and ultra vires the Information Technology Act, 2000.
The original petition was filed by an Indian stand-up comedian against the amendment brought by the Government that empowered it to constitute a ‘Fact Checking Unit’ (FCU) which could review and ensure that there was no misleading information spread against the business of the Government. The petitioner contended that such an amendment evidently violated the freedom of speech and expression conferred to the citizens. Further, with the Bhartiya Nyaya Sanhita now covering misinformation, it gave a right to file an FIR, which could have a chilling effect on the freedom of speech, Also, the FCU, being the creature of the government, was made a judge in its own cause. The government countered that the right to have correct and filtered information was an integral part of the fundamental right and the chilling effect construed was too farfetched.
The Hon’ble Judge, while striking down the impugned rule, held that the expression “knowingly and intentionally” did not apply to the amended portion of Rule 3(1)(b)(v) in relation to the business of the Central Government, and the expression “fake, false or misleading” in the absence of it being defined was vague and overbroad. Further, the impugned rule could not be saved either by reading it down or on the basis of any concession made in that regard of limiting its operation. Finally, the test of proportionality as laid down in Gujarat Mazdoor Sabha [2020 INSC 572] was not satisfied by the impugned Rule, and the impugned Rule also resulted in a chilling effect qua an intermediary.
The Hon’ble Justice also observed that the citizens of India do not have a ‘right to truth’ within free speech rights, and it is not the duty of the government to shield citizens from misinformation. By allowing FCUs to overview the spread of misinformation, the Government was acting as a sole arbiter in its action, and such an act would violate the fundamental rights of the citizens.
While the ruling has far reaching effect, the Tamil Nadu Government seems to believe that the Tamil Nadu Fact Checking Unit is unaffected since it does not ask intermediaries to remove content and it was set up following a government order issued by the Tamil Development and Information (Advertisement) department.
