The Bombay High Court on Friday held as unconstitutional and struck down the amended Information Technology (IT) Rules which sought to identify fake and false content on social media regarding the government.

Being "vague and overbroad", the amended provision could have a "chilling effect" not only on an individual but also social media intermediaries or platforms, it held.

The landmark ruling was passed by Justice A S Chandurkar who served as a `tie-breaker judge' after a division (two-member) bench in January 2024 delivered a split verdict.

The amended rules violated several constitutional provisions, including Article 14 (right to equality), Article 19 (freedom of speech and expression) and Article 19(1)(g) (freedom to practice any profession), the third judge held.

Rule 3(1)(b)(5) -- the controversial provision dealing with the establishment of a Fact Checking Unit (FCU) -- was ultra vires to the Constitution, he added.

Stand-up comedian Kunal Kamra, Editors Guild of India, News Broadcast and Digital Association, and Association of Indian Magazines had filed petitions before the Bombay High Court challenging the new regulations.

Central to the controversy was the establishment of a Fact Checking Unit with powers to flag misleading or false online content concerning the government.

The court agreed with the petitioners' claim that the Rules would have a chilling effect on fundamental rights.

"If it was found that the impugned (challenged) rule was also vague and broad without any guiding principle to indicate the areas it sought to encompass, possibility of such chilling effect being felt would be an additional ground to hold it invalid," the HC said.

The single judge in his judgment said rule 3(1)(b)(5) sought to restrict the fundamental right guaranteed under Article 19(1)(a) by seeking to place restrictions that are not in consonance with Article 19(2) of the Constitution.

While Article 19(1)(a) grants the freedom of speech and expression, Article 19(2) allows the government or legislature to impose "reasonable restrictions" on various grounds on this freedom.

"Under the right to freedom of speech and expression, there is no further "right to the truth", nor is it the responsibility of the State to ensure that the citizens are entitled only to "information" that is not fake or false or misleading as identified by the FCU," the HC said.

"The same is impermissible through the mode of delegated legislation," Justice Chandurkar said.

The judge further said there was no 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 digital form, but not doing the same when such information is in the print form.

On the FCU, the HC said when the Central Government itself is aggrieved by "fake, false and misleading" news or content, fact-checking by the FCU would "result in a unilateral determination by the executive (government) itself." The FCU, in a sense, is an arbiter in the government's own cause, Justice Chandurkar observed.

He also found the term "fake, false and misleading" problematic.

"The expression `fake or false or misleading' in absence of it being defined is vague and overbroad and hence liable to be struck down," the ruling said.

The petitions against the amended IT Rules were initially heard by a division bench of Justices Gautam Patel and Neela Gokhale. In the verdict, Justice Patel held that the rules amounted to censorship, while Justice Gokhale took the view that they did not impact free speech significantly.

Justice Chandurkar agreed with Justice Patel, emphasising the need to protect citizens' rights to free expression.

The contentious amendment was introduced by the Union government on April 6, 2023, by promulgating the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

The rules gave the FCU the power to declare any online content related to government as fake or misleading. Social media intermediaries (such as online portals or platforms like Facebook, X) could then either remove the content, or add a disclaimer. By taking the second option, an intermediary would lose its safe harbour/immunity, and stand liable for legal action.

The division bench had, in January, also differed on whether a stay should be granted to the setting up of the FCU pending the hearing by a third judge. Justice Patel said the FCU should not be notified until the matter was heard by a third judge, while Justice Gokhale said it could be notified.

In March, Justice Chandurkar had refused to grant any interim stay to the setting up of the FCU.

The Union government, subsequently, notified the FCU. However, the Supreme Court stayed the notification pending final hearing and disposal of the petitions in the HC, noting that the petitions raise serious constitutional questions.

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