The Bombay High Court on Friday quashed the amended Information Technology rules aimed at identifying through a Fact Checking Unit (FCU) “fake and false” content against the government on social media platforms, holding it as unconstitutional. 

Observing that the amended rules infringed the right to equality and freedom of speech, the court also said the rules being vague and broad could cause a “chilling effect” not only on an individual but also social media intermediaries.

The ruling was passed by Justice A S Chandurkar who served as ‘tie-breaker judge’ after a division bench in January 2024 delivered a split verdict. Justice Chandurkar’s opinion will now be formally placed before a division bench for a final verdict

The amended rules provided for the establishment of FCU with powers to flag misleading or false online content concerning the government.

Among others, the rules violated Article 14 (right to equality), Article 19 (freedom of speech and expression) and Article 19(1)(g) (freedom to practice any profession) of the Constitution, the third judge held. Rule 3(1)(b)(5) — the controversial provision dealing with the establishment of an FCU —was ultra vires of the Constitution, he added.

Stand-up comedian Kunal Kamra, Editors Guild of India, News Broadcast and Digital Association, and Association of Indian Magazines had filed petitions before the Bombay High Court challenging the new regulations.

The single judge in his judgment said rule 3(1)(b)(5) sought to restrict the fundamental right guaranteed under Article 19(1)(a) by seeking to place restrictions that are not in consonance with Article 19(2) of the Constitution.

The judge further said there was no rationale for undertaking the exercise of determining whether any information in relation to the business of the Centsre is either fake or false or misleading when in digital form, but not doing the same when such information is in the print form.
 

On the FCU, the HC said when the Central Government itself is aggrieved by "fake, false and misleading" news or content, fact-checking by the FCU would "result in a unilateral determination by the executive (government) itself." The FCU, in a sense, is an arbiter in the government's own cause, Justice Chandurkar observed.

He also found the term "fake, false and misleading" problematic.

"The expression 'fake or false or misleading' in absence of it being defined is vague and overbroad and hence liable to be struck down," the ruling said.

The petitions against the amended IT Rules were initially heard by a division bench of Justices Gautam Patel and Neela Gokhale. In the verdict, Justice Patel held that the rules amounted to censorship, while Justice Gokhale took the view that they did not impact free speech significantly.

Justice Chandurkar agreed with Justice Patel, emphasising the need to protect citizens' rights to free expression.

Justice Chandurkar’s opinion will now be formally placed before a division bench for a final verdict.