FCU struck down: Why third judge's opinion was needed?
The Bombay High Court on Friday struck down as unconstitutional a key provision of the amended Information Technology (IT) Rules, 2021. The provision allowed the government to identify "fake news" on social media platforms through a "Fact Check Unit" (FCU). Justice Atul S Chandurkar issued a 99-page ruling, aligning with Justice Gautam S Patel's opinion from January this year. This led to a 2-1 verdict in favor of striking down the amended rules.
Controversial IT amendment rules explained
The controversial provision, Rule 3(1)(b)(v) of the IT Rules, 2021, was introduced by the Ministry of Electronics and Information Technology (MEiTY) in April 2022. It broadened the definition of "fake news" to encompass "government business." If the FCU identified or was notified about posts containing "fake," "false," or "misleading" information related to government affairs, it would flag these to the relevant social media intermediaries.
Legal immunity and free speech concerns
The intermediaries would then be obligated to remove such content to maintain their "safe harbor" status, which provides them with legal immunity for third-party content published on their platforms. This rule sparked concerns about free speech and the extent of government regulation over it. Critics argued that the FCUs allowed the government to be the sole judge of truth regarding its own affairs.
Legal challenge and Supreme Court intervention
The case came before Justice Chandurkar due to a split verdict in January. He was assigned the task on February 7 and refused to grant a stay on the notification to set up the FCU until his final opinion was given. On March 20, the Centre notified the FCU under the Press Information Bureau (PIB). However, a day later, the Supreme Court stayed the operation of this notification until Bombay High Court made its final decision.
Legal arguments and final verdict
The constitutional validity of the Rules was challenged by stand-up comic Kunal Kamra, the Editors's Guild of India, the News Broadcasters & Digital Association, and the Association of Indian Magazines. They argued that these rules were arbitrary, unconstitutional and violated fundamental rights. The Centre defended the Rules as not being against any opinion or criticism targeting government but aimed at preventing spread of fake information on social media related to "government business."
Judge's reasoning for striking down IT amendment rules
In his final verdict, Justice Chandurkar agreed with Justice Patel that the amended Rule 3(1)(b)(v) violated Articles 14 (equality before law), 19(1)(a) (freedom of speech and expression) and 19(1)(g) (right to practice a profession or trade) of the Constitution. He stated that this rule curtailed citizens' fundamental rights beyond reasonable restrictions prescribed under Article 19(2), which was "impermissible through the mode of delegated legislation." He also found expressions "fake, false or misleading" in the Rule as "vague and overbroad."
Judge's views on FCU and freedom of speech
Justice Chandurkar further stated that it was not a state's responsibility to ensure citizens are entitled only to 'information' that was not fake, false or misleading as identified by FCU. He dismissed the Centre's claim that decisions given by FCU can be challenged before a constitutional court "cannot be treated as adequate safeguard." The judge noted that this rule resulted in a "chilling effect" on intermediaries due to threat of losing safe harbor status.
