Discussing the Bombay High Court’s recent decision that set aside the controversial IT Rules amendments to establish fact check units, we are pleased to bring to you this tidbit by SpicyIP intern Mehnaz Khatoon. Mehnaz is a recent law graduate from Aligarh Muslim University Centre Malappuram. She is passionate about Intellectual Property Laws and is interested in pursuing a career in the corporate sector. Her previous post can be accessed here.
SpicyIP Tidbit: Bombay High Court Strikes Down the Controversial IT Amendment Rules for Setting up Fact Check Units
By Mehnaz Khatoon
In a landmark decision dt. September 26, 2024, the Bombay High Court in the case of Kunal Kamra vs. Union of India, has struck down the controversial amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2023. These rules had empowered the Central Government to establish a Fact Check Unit (FCU) to identify and act against “fake, false, and misleading” information related to the government and its operations on social media platforms. The BHC final verdict comes in light of the tie breaker decision by Justice A.S. Chandurkar who opined that the amendments are ultra vires, thus siding with Justice G.S Patel’s opinion (more on that below.) The judgment comes as a major victory for free speech advocates and has garnered widespread attention.
This case, filed by comedian Kunal Kamra along with the Editors Guild of India and other media associations, challenged the amendments on the grounds that they violated fundamental rights enshrined in the Indian Constitution, particularly Articles 14 and 19. The core issue revolved around the FCU’s unchecked authority to determine the authenticity of content and compel social media platforms to remove it if deemed false. The petitioners argued that this effectively gave the government the power to suppress dissent and criticism under the guise of fact-checking, posing a direct threat to freedom of speech.
The Court’s ruling followed a split decision earlier in January 2024, where Justices Gautam Patel and Neela Gokhale had differing views on the constitutionality of the amendment. Justice Patel had sided with the petitioners, while Justice Gokhale upheld the government’s stance. To resolve the deadlock, the case was referred to a third judge, Justice Atul Chandurkar, who on September 20 passed his opinion holding the amendments to be ultra vires. The matter was finally placed before a division bench of the Bombay High Court who passed the final judgement ultimately striking down the amendments.
Justice Chandurkar’s ruling highlighted that the terms “fake, false, and misleading” were too vague, creating potential for arbitrary enforcement. Such broad powers, he argued, could result in a “chilling effect” on free speech, as individuals and intermediaries might self-censor to avoid being targeted. This, in turn, undermined not only freedom of speech but also the right to equality under the law. Citing earlier rulings such as the Shreya Singhal judgment, which dealt with online speech under Section 66A of the IT Act, Justice Chandurkar reinforced that any restriction on speech must be precise and proportional.
The implications of this decision are far-reaching. By invalidating the Fact Check Unit’s powers, the Court has sent a clear message that the government cannot act as the sole arbiter of truth in matters of public discourse. The ruling protects digital platforms from being forced to remove content without sufficient legal scrutiny, ensuring that the government’s role in curbing misinformation does not morph into unchecked censorship.
While the government defended the FCU as a necessary tool to curb the spread of misinformation, arguing that private entities already perform similar functions, the Court’s ruling reaffirms the importance of keeping such fact-checking independent. The government’s argument, presented by Solicitor-General Tushar Mehta, was that the FCU was merely identifying falsehoods, but the Court found that the lack of accountability and clear guidelines opened the door for abuse.
This judgment has been widely celebrated by digital rights groups and free speech defenders. Kunal Kamra, one of the lead petitioners, hailed the ruling as a win for democracy, expressing his hope that the decision would set a precedent against future attempts to stifle freedom of expression. Organizations like the Internet Freedom Foundation and the Association of Indian Magazines echoed similar sentiments, calling for the continued independence of fact-checking from governmental influence.
In sum, the Bombay High Court’s judgment striking down the IT Rules amendments is a significant milestone in the ongoing debate over free speech, misinformation, and government regulation in India’s digital sphere. This decision ensures that the regulation of online content remains transparent and balanced, preserving the fundamental rights of individuals and safeguarding the democratic principles of open dialogue and debate. As digital platforms increasingly shape public opinion, this ruling serves as a vital reminder that efforts to control misinformation must always align with constitutional protections.