Bombay HC Calls IT Rules Amendment on Fake News Unconstitutional

The Bombay High Court on September 26 struck down amendments to the Information Technology (IT) Rules, 2021. The rules were amended in 2023 and allowed the central government to set up fact-check units (FCUs) for curbing fake news. The judgement was delivered by Justices AS Gadkari and Neela Gokhale on Thursday, according to Bar and Bench. 

“In view of the majority opinion, rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, is declared unconstitutional and accordingly struck down. Petitions are accordingly allowed,” said the court. 

The petition that challenged the amendments was moved by comedian Kunal Kamra and the Editors Guild of India. They claimed that the central government had no jurisdiction to amend the law as per Section 79 of the IT Act. Additionally, they claimed that the rules violated Article 14 (right to equality) and Article 19 (1)(a)(g) (freedom to practice any profession or trade) of the Indian constitution. 

Earlier in January 2024, a division bench comprising Justices G.S Patel and Neela Gokhale delivered a split verdict on the matter. Justice Patel called the amendment ‘unconstitutional’ while Justice Gokhale upheld the validity of the proposed amendments. 

Consequently, the Supreme Court issued a stay order on the central government’s notification regarding setting up the fact-check unit. 

The rules were amended in 2021 and mandated the FCU to monitor and flag any content perceived as fake or misleading related to government activities. If flagged, social media intermediaries could either remove the content or post a disclaimer, risking legal repercussions if they opted for the latter. 

“A government cannot be the arbiter of truth and use the state machinery for censorship of user-generated content,” reported the Mint, quoting Mishi Choudhary, founder at the Software Freedom Law Centre.