Checking facts is good, but it may become the opposite depending on the agent and the purpose. The Bombay High Court struck down as unconstitutional the Central gover­nment’s power to form fact-check units to uncover ‘fake’ news about itself. This power was given by Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023. The decision was taken by a third judge after a split verdict by a two-judge bench in January. According to the rule, intermediaries of digital platforms including social media were to ensure that users did not post fake, untrue or misleading news about the government’s business. The FCUs would identify these. The judgment said that Rule 3 violated the constitutional rights to freedom of speech and the freedom to carry on a trade or profession. For instance, the profession of a comedian — Kunal Kamra was one of the petitioners against Rule 3 — or a satirist would be shorn of all edge if Rule 3 became operational. The right to freedom of speech, said the judgment, is not the right to truth. Besides, Rule 3 would make the government the judge of ‘truth’, which was unacceptable.

The rule also violated the principle of equality by being applicable only to digital media and not to printed newspapers. This was discriminatory; clearly, the rule had been made with the wider sweep of digital media in mind. The government’s anxiety to erase all criticism had threatened to turn it into law, which was quashed by the Bombay High Court. The judgment further pointed out that fake, false and misleading are vague and broad expressions since they have not been defined. Undefined terms would lead to abuse: the government would be free to instruct intermediaries to take down whichever post it did not like. Not only would this have a "chilling effect" on intermediaries but it would also make the government the judge in its own cause, according to the court. In quashing Rule 3, the judgment pierced the veneer of law that the government had put up to legitimise its usual act of silencing dissent and criticism. In those cases, laws have to be weaponised and manipulated; with Rule 3, that would not have been necessary. The Bombay High Court, however, preserved the freedom of digital media in this sphere.