A division bench of the Bombay High Court on January 31 delivered a split verdict on petitions challenging the constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Rules) that permit a “Fact Check Unit” (FCU) of the Union Government to identify “fake or false or misleading” online content “related to the business of the Central Government” and demand its removal.
While Justice G.S. Patel observed that the amendment promoted censorship and violated a host of fundamental rights, Justice Neela Gokhale was of the opinion that it did not prohibit any critical opinion of the government and was therefore not a disproportionate measure.
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Amended IT Rules
In April last year, the Ministry of Electronics and IT (MEiTY) established the FCU by amending the IT Rules, 2021. Subsequently, Kunal Kamra, a political satirist and standup artist, the Editors Guild of India, and the Association of Indian Magazines filed writ petitions before the High Court challenging Rule 3(1)(b)(v) which imposed due diligence requirements upon intermediaries. Earlier, they were only required to “inform” users of their obligation to not upload or share any “patently false or misleading information.”
Rule 3(1)(b)(v) specifically requires intermediaries to make “reasonable efforts” to ensure that its users do not upload or transmit any content that has been identified as “fake or false or misleading” by the Centre’s FCU. Such flagged content would have to be taken down if the intermediaries want to retain their “safe harbour” protection — a form of legal immunity against any third-party content hosted by them.
The amendment, however, does not define the term ‘any business of the Central government.’ The FCU is likely to have four members— a representative from the Union Ministry of Information and Broadcasting, one from the Union Ministry of Statistics and Programme Implementation, a media expert, and a legal expert.
Crux of the arguments
The petitioners contended that the amendment enables the government to be the “prosecutor, the judge, and in that loose sense, the executioner” of what constitutes the ‘truth’ online, thereby violating the cardinal principles of natural justice. They also pointed out that the “over-broad and vague” nature of the rules created a ‘chilling effect” on the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.
Mr. Kamra argued that political satirists would be constrained to self-censor out of fear of punitive action under the rules. Should access to social media platforms be restricted or policed by the government, it would unreasonably restrict their constitutionally guaranteed right to practise their profession/trade, he contended.
It was also highlighted that the rules do not afford the affected user any opportunity to be heard before a decision as to the “fake, false, or misleading” nature of the content is rendered.
Defending the regulations, the government said that the FCU will only notify intermediaries that the content they are hosting is fake, false, or misleading, following which they can choose to either take it down or leave it up with a disclaimer. Highlighting that the FCU’s notice is merely advisory, the government argued that in case users are aggrieved by the intermediary’s decision, they can always approach a court of law, which would be the final arbiter on the matter.
Also Read: Blocking of Hindutva Watch and the prevalence of social media censorship in India
‘Unthinkable’ for any entity to ‘unilaterally’ identify fake content
Agreeing with the contentions of the petitioners, Justice Patel acknowledged that the amendment “takes the form of censorship of user content” and does not fall within the ambit of reasonable restrictions permitted under Article 19(2) of the Constitution.
According to him, the heart of the dispute is whether the absolute determination of what is fake, false, or misleading is even possible in all circumstances. For instance, some statements constitute absolute truths — two plus two always equals four, whereas some are neither true nor false — such as “opinions, hopes, desires.” Therefore, it is “unthinkable” for any one entity, be it the government or anyone else, to “unilaterally” identify what is fake or misleading, he said.
Highlighting that it is possible to even question data that originates from the government, the judge elucidated, “ It is possible, for instance, to query the ‘official’ government data on any metric — the economy, poverty, health, for instance — or to question and look askance at contemporary events and actions — demonetization or what is most likely to have happened during a border skirmish or incursion.”
Pointing out that the amendment is “posited on the assumption that government-related information is somehow special and deserving of extra protection,” Justice Patel rejected the argument that the fundamental right to freedom of speech and expression is to ensure that every citizen receives only “true” and “accurate” information — as determined by the government.
“It is not the business of the government to keep citizens from falling into error. It is the other way around. For it is very much business and should be the duty of every citizen to prevent the government from falling into error. Governments do not select citizens. Citizens elect governments,” he observed.
‘No safeguard against bias’
Expressing concerns over the structure of the FCU, the judge pointed out that it contains “no safeguard against bias” in the absence of guidelines and a procedure providing a hearing to the affected user. This, according to him, facilitates a “subjective satisfaction on objective material,” thereby making the Union government a “judge in its own cause.”
Justice Patel also noted that the phrases ‘fake, false, misleading’ and ‘business of the government’ were not defined, which was reason enough to invalidate the amendment.
“Anything might be the business of the government. Anything could be said to be ‘fake’. ‘Misleading’ is entirely subjective. And as to ‘truth’ and ‘falsity’, throughout recorded human history there are few, if any, absolute truths,” he added.
Questioning the need for a new regulator, he pointed out that the Press Information Bureau (PIB), which is a fully government-controlled entity, “already has a significant social media presence”.
“Regarding the business of the Central Government, the Central Government’s FCU will decide whether content is fake, false or misleading. How, on what material, no one knows. Even we are not told.”Justice Gautam Patel Kunal Kamra and Ors v. Union of India (2024)
The judge also concurred with the argument raised during the proceedings that the rules create inconsistent standards for print and online content, thereby curtailing free speech disproportionately for online media. “The decisive test must surely be that if the material in print cannot be subjected to FCU checking and compelled deletion, there is no reason why, merely because the exact same material also appears online it is susceptible to unilateral determination of fakeness, falsity or being misleading,” he underscored.
‘Who will fact-check the fact-checker?’
Justice Patel observed that the amendment empowers the FCU to be the “sole authority” to decide what is fake content.
“Who, after all, is to fact-check the fact-checker? Who is to say if the view of the FCU is fake, false, or misleading?” he enquired.
The judge further outlined that the argument that the government was in a “vulnerable position” and could not defend itself is not tenable since it “routinely rebuts criticism” and possesses the “biggest megaphone.” He however clarified that this was not a comment on any dispensation or the present government.
Although complaints of a grievous nature (pornography, child abuse, intellectual property violations) can only be taken down after a grievance redressal procedure, anything related to the business of the government can be ‘identified’ as false only by the FCU. This, according to Justice Patel, creates a “paradoxical” situation.
Cautioning that criticism and debate are likely to be stifled in the absence of express guidelines, he underscored, “There is little achieved in saying that the guidelines will come later. There is no assurance of that either; and they should have been in place by now if there was such an intent.”
‘Unfair’ allegations of bias
Upholding the amendment, Justice Gokhale observed that the “requirement of a nuanced regulation underscores the cost of free speech absolutism in this ‘infodemic’ era.” According to her, the concept of representative and participative democracy would be defeated if citizens did not have access to “authentic information.”
Highlighting that the government’s measures were not disproportionate, she pointed out that the rules only target “misinformation, patently untrue information, which the user knows to be fake, or false or misleading and yet is shared with a mala fide intent.”
“The qualification to the offensive information is knowledge and intent. Political satire, political parody, political criticism, opinions, views etc does not form part of the offensive information. Then too, if such content is wrongly flagged by the FCU, it is always open to the user/aggrieved person to raise a complaint before the redressal mechanism of the intermediary and agitate his grievance before it and ultimately before a court of competent jurisdiction.”Justice Neela GokhaleKunal Kamra and Ors v. Union of India (2024)
Refuting allegations of bias, she asserted that only because FCU members were government appointees, this by itself does not divest their character as independent persons.
Although Justice Gokhale acknowledged that “the charter of the FCU, the extent of its authority, the manner of its functioning” is yet “unknown,” she underscored that in case of any actual bias exhibited, the aggrieved user could always seek recourse in a court of law
She concluded that the rule could not be struck down as invalid merely due to concerns about potential abuse.
What happens next?
Due to the contrasting opinions, the Bench directed the High Court registry to place the petitions before Chief Justice Devendra Kumar Upadhyaya for referring it to a third judge who will hear the matter afresh and act as a tiebreaker. The final decision can then be challenged by either of the parties before the Supreme Court.
On February 9, the Chief Justice appointed Justice Atul S. Chandurkar to render an opinion on the divergent views. He will also decide if the Union government’s initial assurance of not notifying the FCU should continue until a conclsuive verdict is reached.
While Tamil Nadu has notified the constitution of a similar fact-checking unit, other states such as Karnataka and Uttarakhand are in the process of establishing them. In November last year, the Madras High Court adjourned a public interest litigation petition filed against the State government’s FCU, awaiting the decision of the Bombay High Court.
Thus, the decision of Justice Chandurkar is likely to provide clarity on the legitimacy of similar units in other States as well.
