The Editors Guild of India (EGI) welcomed the order from the Bombay High Court (HC), striking down as unconstitutional the Information Technology (IT) Amendment Rules of 2023 on the formation of fact-check units (FCU) by the Union government.
The petitions, including one filed by stand-up comedian Kunal Kamra, had specifically challenged Rule 3, which grants the Union government the authority to form FCUs for identifying false online news. The EGI also moved the HC in June last year, challenging the constitutional validity of certain provisions of the provisions
"I am of the opinion that it violates Articles 14 and Article 19 of the Constitution," the single-judge said while reading out the verdict.
Justice Chandurkar, agreeing with the opinion of justice Patel, declared the amendments unconstitutional, citing violations of Articles 14, 19(1)(a), 19(1)(g), and 21 of the Indian Constitution.
Last year, as per the rules that have been notified, Union the ministry of electronics, information and technology (MeITY) gave itself the power to constitute a fact-checking unit or FCU, which has sweeping powers to determine what is 'fake or false or misleading', concerning 'any business of the Union government', and with instructions to 'intermediaries', including social media intermediaries, internet service providers (ISPs) and other service providers, to not host such content.
Justice Patel ruled in favour of the petitioners and struck down Rule 3, citing concerns about the potential for censorship of user content and the shifting of responsibility for content accuracy from creators to intermediaries. He emphasised the need for clear guidelines and criticised the imbalance in addressing grievances related to government information versus other sensitive issues.
Justice Patel highlighted issues related to Article 14, asserting that there was no justification for granting 'high value' speech recognition to information concerning the Central government over other entities.
In contrast, Justice Gokhale upheld the validity of the amended rules, arguing that they target misinformation with malicious intent while protecting freedom of speech. She stated that a rule cannot be invalidated based solely on concerns of potential abuse, affirming that petitioners and users can approach the court if any intermediary actions infringe upon their fundamental rights.
Following this, Bombay HC chief justice DK Upadhyay appointed justice Chandurkar to provide a tie-breaking opinion on the case.
In March this year, setting aside the order of the third judge from the Bombay HC declining interim relief, the Supreme Court stayed the gazette notification issued by MeitY on setting up a FCU to monitor content on social media.
Advocate Shadan Farasat, representing the EGI, contended that the model code of conduct for the Lok Sabha poll is in place. "...and the government version will become the only version of the truth and the worst time to introduce this... as EGI, it impacts our stand to give both versions. How will investigative journalists work at all? It is through several sources in the government. Now, a Union government authority will stamp out all other voices. It even impacts the disputed question between the centre and state."
The matter reached the apex court after justice Chandurkar, who was appointed as the third judge in Bombay HC, refused to stay the constitution of the FCU to rein in misleading and fake social media posts on government businesses.
This last week ruling by justice Chandurkar marked the conclusion of a prolonged legal process that spanned 17 months, as documented by the
Internet Freedom Foundation (IFF) in their comprehensive timeline.
The chronology of events is as follows:
6 April 2023: MeitY notified the IT Amendment Rules, 2023, which introduced provisions for a government-operated FCU.
10 April 2023: Kunal Kamra initiated legal proceedings by filing a petition challenging the amendments, with the IFF providing legal support.
27 April 2023: The Union government implemented an effective stay, committing to not constitute the FCU pending legal resolution.
6 June 2023: The Association of Indian Magazines (AIM), represented by the IFF, submitted a formal challenge to the 2023 Amendment.
31 January 2024: The Bombay HC issued a split verdict. Justice Patel ruled in favour of the petitioners, while Justice Gokhale upheld the amendment's validity.
8 February 2024: Due to the divergent opinions, the matter was referred to a third judge for a definitive decision.
11-13 March 2024: Justice Chandurkar declined to grant interim relief as requested by the petitioners, prompting further appeals.
March 15-21, 2024: A series of legal proceedings ensued, including appeals and stay orders issued by various courts.
15-24 April 2024: The petitioners presented their concluding arguments before Justice Chandurkar.
July-August 2024: The respondents submitted their final rejoinders, after which the judgment was reserved.
Finally, on 20 September 2024, justice Chandurkar agreed with justice Gautam Patel's opinion, declaring the amendments unconstitutional. This decision effectively struck down the controversial provisions of the IT Amendment Rules, 2023.
This judgement is regarded as a significant legal precedent in the realm of digital rights and freedom of expression in India. It underscores the judiciary's role in maintaining the balance between government authority and individual freedoms in the digital age.