The Bombay High Court on Friday declared the IT Amendment Rules, 2023 unconstitutional. Under these amendments, the central government was allowed to set up a fact-checking unit to identify “false and misleading” information on social media. The court held that this violated Articles 14 (right to equality) and 19 (freedom of speech and expression) of the Constitution and struck down the IT Amendment Rules, 2023 as unconstitutional.
What happened
In January 2024, a petition was filed in the Bombay High Court against this amendment, with comedian Kunal Kamra also being the lead petitioner. In his petition, he stated that by abusing this rule, the government can silence voices against it. Division bench Justices Gautam Patel and Dr. Neela Gokhale were divided on the matter, after which the matter was assigned to Justice Atul Chandurkar (casting bench) for hearing. Today (September 20), the casting bench of Justice Chandurkar declared the amendment unconstitutional.
Bombay High Court judgment
The Bombay High Court said during the hearing that the amendments to the Information Technology Act were confusing and vague as no clear definition of “fake” and “false” information was given. The amendments violated Articles 14 (right to equality), 19 (freedom of expression) and 19(1)(g) (freedom of occupation) of the Constitution. The court also said that the provisions violated Article 21 (right to life and personal liberty) of the Constitution.
Impact of the decision
The biggest impact of this Bombay High Court judgment will be that the government will not be able to expand its power to monitor information on social media platforms. The judgment sends a strong signal to safeguard freedom of speech and citizens can express their opinions freely without any interference. Critics see this decision as a protection of democratic freedoms and the government still has many options on this issue.
After this decision, people may question the central government’s intention to control information. In addition, this decision may now affect further legislative procedures related to this. Especially in the context of social media and digital platform regulation, the government may now have to consider new strategies and procedures. In addition to this, critics and opponents can also regard this decision as an issue against the government.
Let us understand what impact this Bombay High Court judgment will have on the digital space and citizens’ rights in India –
The decision strengthens the freedom of expression of citizens as enshrined in Article 19 of the Constitution. The court made it clear that the government’s control of information through fact-checking units violates the fundamental rights of citizens. This simply means that now it will help protect the opinions or information expressed on social media from government interference.
The decision is a major blow to the government’s information monitoring and censorship efforts. The center’s fact-checking unit was established to focus on government-related work and related information, but this decision challenges this authority. The decision also points out the lack of transparency in government surveillance and the dangers of its potential abuse.
Social media companies will also get a relief from this decision. After this decision, the pressure on them to remove so-called “false” information as per the government’s orders will be reduced. This will provide more freedom to the platforms and they will be able to monitor the content as per their policies. Apart from this, people using it will now be able to share their opinions without having to worry about any news or post getting deleted.
Apart from this, the decision is a victory for critics and activists who feel that the government is trying to restrict free speech in the name of fact-checking. However, following this decision, the question now arises about how fake news and misinformation will be dealt with and how the government will move forward in this regard.
The government can challenge this decision in the Supreme Court as the matter also involves national security. Apart from this, the avenue is open for the government to make new laws in this regard. Apart from this, this decision will also increase the need for transparency and clarity in the future digital policy making in India. Now the government must take special care of freedom of expression, privacy and citizens’ rights while making rules and policies in this regard.
What does the Centre think of the Fact-Checking Group?
The central government has long been discussing the formation of a fact-checking team. The government believes that it will help curb the spread of false and misleading news on social media. In March this year, the Centre had also issued a notification in this regard, but it was stayed by the Supreme Court, which said that the matter was under consideration by the Bombay High Court and the notification was stayed until a decision was taken. Additional Solicitor General Tushar Mehta, who appeared for the Centre in the Supreme Court at the time, argued that the fact-checking team would only monitor news related to government operations.
He had said that if anyone criticises the Prime Minister, he will not come under its jurisdiction. Citing some recent examples of fake news being posted on Facebook, SG Mehta said there is a need to form a fact-checking team. He had said that if the fact-checking unit flags any news, then the companies will have to put a disclaimer under the post and inform that the news is false.
In defending the rules, he explained, “Let’s say I’m Facebook and I don’t think the post is fake and I don’t put out a disclaimer, what happens then? If anyone gets hurt by the post and takes it to court, the intermediaries won’t be able to say they have legal immunity. They will then have to defend the fake post.”
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