Bombay HC formally strikes down amended IT Rules on fake news; terms them 'unconstitutional'

Mumbai: After the third judge's decision, the Bombay High Court on Thursday formally struck down the amended Information Technology Rules aimed at identifying and regulating fake and false content on social media against the government, and termed them as "unconstitutional".

On September 20, a single bench of Justice A S Chandurkar held that the amended rules being vague and broad had the potential of causing a chilling effect not only on an individual, but also on the social media intermediary.

Justice Chandurkar had served as the tie-breaker judge after a division bench issued a split verdict on the matter earlier this year.

Following the third judge's decision, a division bench of Justices A S Gadkari and Neela Gokhale on Thursday formally pronounced the verdict on a bunch of petitions filed by stand-up comedian Kunal Kamra, Editors Guild of India, News Broadcast and Digital Association and Association of Indian Magazines challenging the new regulations.

"In view of the majority opinion, the Rule 3 (1) (V) is declared unconstitutional and is struck down. The petitions are accordingly allowed," the court said.

The case had initially been reviewed by a division bench of Justices Gautam Patel (now retired) and Neela Gokhale, who delivered a split verdict in January.

Justice Patel had argued that the rules constituted censorship, while Justice Gokhale maintained that they did not significantly impact free speech.

Justice Chandurkar aligned his opinion with Justice Patel's, emphasising the need to protect citizens' rights to free expression.

Central to the controversy was the establishment of a Fact Checking Unit (FCU), which was designed to flag online content deemed misleading or false concerning the government.

The court agreed with the petitioners' claim that the Rules had a chilling effect on fundamental rights.

The contentious amendments to the IT Rules were introduced by the Union government on April 6, 2023, as part of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

The regulations 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.