After receiving the 'opinion' of the "tie-breaker" judge, the Bombay High Court division bench declared the amendment to the IT Rules, 2021, "unconstitutional" and struck it down. The amendment allowed the Central government to establish Fact Check Units (FCUs) to identify "fake and false" information about its business circulating on digital platforms. This judgment was a result of petitions filed by comedian Kunal Kamra, the Editors Guild of India, the Association of Indian Magazines, and the News Broadcasters of Digital Association.
The bench, comprising Justices Ajay Gadkari and Dr. Neela Gokhale, ruled that "in view of the majority opinion, rule 3(1)(v) is declared unconstitutional and is struck down. Petitions are accordingly allowed." This final decision followed a split verdict earlier in January 2023, when a division bench of Justices Gautam Patel and Dr. Neela Gokhale delivered conflicting opinions. Justice Patel had struck down the amendments, while Justice Gokhale had upheld them.
Last week, Justice Atul Chandurkar, who was called in as the "tie-breaker" judge, delivered his 'opinion' and agreed with Justice Patel's view that the amendments were unconstitutional. Since Justice Patel had retired, the matter was brought before a new division bench of Justices Gadkari and Gokhale, which pronounced the final verdict today, striking down the amendments by a majority view, thereby declaring them unconstitutional.
One of the key petitioners, Kunal Kamra, argued that as a political satirist who relies on social media platforms to share his content, the amendments could lead to arbitrary censorship of his work. Kamra feared that his content could be blocked, taken down, or that his social media accounts could be suspended or deactivated based on decisions made by the FCUs under the new rules.
On the other hand, the Ministry of Information and Technology defended the amendments, claiming they were in the public interest. The Ministry argued that “authentic information” related to the government's business should be fact-checked by a government agency (FCU) to ensure that potential harm to the public from false or misleading information could be prevented.
Justice Patel, in his judgment, had emphasized that the proposed FCUs under the 2023 amendment to the IT Rules 2021 directly infringed upon fundamental rights under Article 19(1)(g) of the Constitution of India. This article deals with the right to practice one's profession or business. Patel highlighted the differential treatment between online and print content, arguing that this unequal treatment violated the freedom to practice one’s profession. He also noted that Article 19(6) enumerates the types of restrictions that can be imposed, none of which justified the government's actions.
Additionally, Justice Patel expressed concern that FCUs would unilaterally declare online content related to the government's business as fake, false, or misleading, which in itself amounted to "censorship." He pointed out the contradiction in the government's stance of welcoming debate and dissent while simultaneously arguing that restricting speech through the IT Rule amendments was necessary. According to Patel, this position reflected an inherent contradiction that undermined the government's case.
Thus, with the final verdict today, the High Court concluded that the amendment allowing the establishment of FCUs for fact-checking government-related information was unconstitutional.
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