Bombay High Court said the amendments to the Information and Technology Rules 2023 was unconstitutional and struck down the Centre’s Fact Checking Unit (FCU) after observing that the expressions “fake or false or misleading” were undefined and “vague”.
The rules would result in a “chilling effect” and the “absence of sufficient safeguards” would “tend to interfere” with fundamental rights to free speech, ‘tie-breaker’ judge AS Chandurkar said.
The high court stressed there was no additional “right to the truth” and the government was not responsible to ensure that citizens were entitled to correct information only as identified by the Fact Checking Unit.
Justice AS Chandurkar’s ‘tie-breaking’ order today tipped the scale 2:1 in favour of finding the Centre’s FCU unconstitutional. Earlier this year, a division bench of the Bombay High Court delivered a split verdict on the constitutionality of the FCU and the amendments to the IT Rules. The judgment came on a batch of pleas filed by stand-up comic Kunal Kamra, the Editors Guild of India, the Association of Indian Magazines, and the News Broadcasters Association who challenged the government’s amendment to the IT Rules, 2023 allowing it to determine what is fake, false or misleading.
FCU undefined, vague
Justice AS Chandurkar agreed with Justice Gautam Patel’s opinion wherein he found that the word “misleading” can be subjected to various dimensions without any idea being given as to what it would connote.
Justice Chandurkar pointed out that the FCU did not clearly define how it would identify any information to be patently false and untrue or misleading in nature. “The matter would be left entirely at the unguided discretion of the FCU in absence of any guiding principle in that regard, the judge said adding that the “exercise would result in an unilateral determination by the executive itself”.
That the charter of the FCU, the extent of its authority, the manner of its functioning in ascertaining fake or false or misleading information being unknown has been noticed by Justice Neela Gokhale in her differing opinion as well.
Taking all aspects in consideration the judge concluded that in a sense, the FCU is “the arbiter in its own cause.”
Reading down of the Rules will not work
The high court did not accept the Centre’s contention that it would exclude political comments, opinions, debates, satire etc. from the realm of the impugned Rules. The judge noted that the same stand was taken in the Supreme Court’s Shreya Singhal judgment which struck down provisions of the IT Rules that it found vague and arbitrary.
“I do not therefore find that by undertaking an exercise of “reading down”, the invalidity of the Rule can be saved. The Rule as amended definitely suffers from vagueness and overbreadth,” Justice Chandurkar observed.
“This is for the reason that any assurance from one Government even if carried out faithfully would not bind a succeeding Government,” the judge said.
IT Rules beyond the scope of the parent act
Justice AS Chandurkar observed that the IT Rules, 2023 went beyond the scope of the parent IT Act, 2000. The amended Rules sought to impose restrictions beyond those defined in Article 19(2) which limit the right of free speech under certain circumstances. The Rules also suffer from manifest arbitrariness for not being in conformity with the Act of 2000 on the principles laid down, the judge said.
“I am in agreement with the finding of Patel J that the impugned Rule creates substantive law beyond the Act of 2000 and that it does not relate to anything permissible either under Section 69A or Section 79 of the Act of 2000,” he said.
The judge further pointed out that if a piece of information is not subjected to certain conditions when published in the print media, then how can those “rigors” prevail if it is in the “digital form”.
“There is no basis or rationale for undertaking the exercise of determining whether any information in relation to the business of the Central Government is either fake or false or misleading when in the digital form and not undertaking a similar exercise when that very information is in the print form,” he added.