The Bombay High Court has ruled that the amended Information Technology (IT) Rules, which sought to establish a Fact-Checking Unit (FCU) to identify false content about the government on social media, are unconstitutional. The judgement comes as a significant development in the ongoing debate over freedom of speech and expression in the digital age.
Justice A.S. Chandurkar, serving as the ‘tie-breaker judge’, delivered the verdict on September 20, 2024. His role became necessary after a division bench in January had delivered a split verdict on petitions challenging the IT rules.
The rules in question had been introduced by the Union government as part of its broader amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules in April 2023.
The court struck down these rules, citing violations of key constitutional rights. Justice Chandurkar noted that the rules infringe upon Article 14, which ensures equality before the law, Article 19, which protects freedom of speech and expression, and Article 19(1)(g), which guarantees the right to profession. These provisions form the backbone of democratic freedoms, and the court found that the amendments went against these principles.
One of the core criticisms of the rules was the vague terminology used to describe content as "fake, false, or misleading." Justice Chandurkar highlighted this vagueness as problematic, noting that without a clear definition, such terms could easily be misinterpreted and lead to excessive control over public discourse.
The court’s ruling has profound implications, as it directly addresses concerns raised by petitioners like stand-up comedian Kunal Kamra, who argued that the IT Rules could be used to silence dissent and censor critical voices.
Kamra and others had voiced strong opposition to the creation of the Fact-Checking Unit, fearing that it would function as a tool for government overreach, particularly in controlling narratives on social media.
The division bench that originally heard the case consisted of Justices Gautam Patel and Neela Gokhale. Their inability to reach a consensus led to the need for a final ruling by Justice Chandurkar.
While Justice Patel had previously struck down the rules, stating they amounted to censorship, Justice Gokhale had upheld them, asserting that they did not have a chilling effect on free speech. Justice Chandurkar, in his judgement, sided with Justice Patel’s view, further solidifying the argument that the IT Rules could hinder free expression.
The amendments to the IT Rules had initially been introduced by the government in response to growing concerns about the spread of misinformation online. The Fact-Checking Unit, as proposed, would have been tasked with identifying and flagging content that was deemed false or misleading in relation to the government.
Once flagged, social media platforms would have been required to either take down the content or place disclaimers on it. In the case of non-compliance, platforms would lose their legal immunity, also known as "safe harbour," leaving them vulnerable to legal action.
This ruling by the Bombay High Court effectively dismantles the government’s plan to create such a unit, bringing relief to those who have been concerned about the potential for excessive control over online content.
Critics of the IT Rules had long argued that giving the government the power to determine what constituted "fake" or "misleading" content would be detrimental to democratic freedoms. They feared that the rules could be used to stifle criticism of the government and suppress dissenting opinions.
The case has also attracted significant attention because it highlights the ongoing tension between the need for regulating misinformation and the protection of free speech.
While the spread of false information, especially on social media, is a legitimate concern, the challenge lies in finding a balance that doesn’t infringe on individuals' rights to express their views.
The Bombay High Court’s ruling represents a victory for those who advocate for free speech and oppose any form of censorship, even when it comes in the guise of curbing misinformation.
As the digital landscape continues to evolve, the case raises broader questions about how best to regulate content without encroaching on personal freedoms. The government’s attempts to address the issue of misinformation are not unique to India, as many countries grapple with similar challenges. However, this ruling underscores the importance of maintaining a balance between regulation and freedom of expression.
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