The Bombay High Court on January 31 delivered a split verdict on pleas challenging the Centre’s Fact Checking Unit under the Information and Technology Rules, 2023 which determined what news is fake, false or misleading.
The two judges uploaded separate judgements outlining their opinions. Justice GS Patel, in his 148-page opinion, found the rules taking on a “form of censorship”; Justice Neela Gokhale in her 92-page opinion said the rules are not disproportionate and rather saved citizens from being misled.
The high court’s decision—on a batch of pleas filed by stand-up comic Kunal Kamra, the Editors Guild of India (EGI), the Association of Indian Magazines (AIM) and the News Broadcasters and Digital Association (NBDA)—came almost a year after the FCU was introduced by way of an amendment to the IT Rules.
During the pendency of the hearing, the government gave an undertaking it would not notify the FCU. The Centre agreed not to notify the FCU for another 10 days at the high court’s request.
Since the high court’s division bench failed to come to a consensus on this issue, the matter has been referred to the Chief Justice who will now place the case before a third judge who will act as a tiebreaker.
BOOM recaps the split opinions.
Who will fact-check the fact-checker? FCU broad, vague: Justice GS Patel
Justice GS Patel said he found the FCU troubling, overbroad and vague. The 2023 amendment to the IT Rules “is not just too close to, but actually takes the form of censorship of user content,” he added.
“This sits at odds with the fact that the biggest megaphone and the loudest voice is that of the government: if there is one entity that does not need such protection, it is the government. It already has an ‘authentic’ voice; possibly, the most authentic voice. And it has so far been unafraid to use it,” Justice Patel said.
It is “unthinkable” that any one entity — be it the government or anyone else — can “unilaterally” identify what is to be fake, false or misleading, Justice Patel said. “That surely cannot be the sole preserve of the government...,” he added.
“We have already seen examples, and they are not entirely hypothetical. The government routinely rebuts criticism. If, in addition, this is now dubbed fake, false or misleading (and there are no guidelines to suggest why it cannot), then criticism and debate are stifled,” he added.
Clarifying that his comments should not be misunderstood or misconstrued as a comment on the present government, Justice Patel asked, “Who, after all, is to fact check the fact checker?”
The judge pointed out that how the FCU will go about its business is unknown. “We are simply asked to trust it (FCU). This is not a question of trust, and especially not of distrust in any particular dispensation. It is simply a matter of setting the impugned Rule against the settled law and seeing whether it passes established Constitutional tests,” Justice Patel said.
Justice Patel pointed out the “paradoxical” situation where complaints about pornography, child abuse, and intellectual property violations can only be taken down only after following a grievance redressal procedure; and yet the FCU can ‘identify’ anything related to the Centre as fake, false or misleading.
“Who is to say if the view of the FCU is fake, false or misleading?” he pointed out.
FCU prevents citizens from being misled by fake news: Justice Neela Gokhale
Justice Neela Gokhale observed the IT Rules, 2023 allowed the citizens to partake in “the representative and participative democracy” which would otherwise be “meaningless” unless they had access to “authentic information” and were not being misled by misinformation, information which is patently untrue, fake, false, or misleading, knowingly communicated with malicious intent”.
Justice Gokhale observed the government’s measures were not disproportionate and did not encroach on fundamental rights. She clarified the rules 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 do not form part of the offensive information,” Justice Gokhale added.
Even as Justice Patel was not assured by the lack of FCU guidelines, Justice Gokhale contended that “the charter of the FCU, the extent of its authority, the manner of its functioning” is yet “unknown”. Thus, “in case of any actual bias exhibited by the FCU, recourse to the courts of law is always open to the aggrieved person,” she said.