The Bombay High Court has struck down the 2023 amendments to the IT Rules, which empowered the Central government to establish Fact Check Units (FCUs). The decision was made by Justice Atul Chandurkar, who served as the ‘tie-breaker’ judge after a division bench of Justices Gautam Patel and Dr Neela Gokhale delivered a split verdict in January 2024.
The Bombay High Court’s ruling on Rule 3(1)(b)(v) of the Intermediary Guidelines and Digital Media Ethics Code Amendment Rules, 2023, marks a pivotal moment in the ongoing debate over online regulation and free speech in India. The rule, which allowed the Central Government to establish fact-checking units (FCUs) to identify and take down fake or misleading content about the government, was declared unconstitutional in a recent judgment.
Justice Chandurkar ruled that the amendments were violative of Article 14 and Article 19 of the Constitution of India, which guarantee the right to equality and the right to freedom of speech and expression, respectively.
In a split verdict, the Division Bench of the Bombay High Court raised serious concerns over the rule’s vagueness and potential overreach. The judgment, referencing a previous ruling by Justice Patel, noted that the provisions violated the right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. The court ruled that the amendments failed to clearly define what constitutes “fake” or “misleading” information, and thus, empowered the government with excessive discretion.
No doubt misinformation and fake news regarding goverment’s work is a serious problem, the Hon’ble Court has essentially said that an uncanalised power in the hands of a bureaucratic government ‘unit’ is not the answer as it stifles free speech. While this indeed a good news for free speech advocates, content creators and platform/ alike, I doubt this would be the last we heard of this issue.Sudarshan Singh Shekhawat, Founder, Shekhawat Law
Arya Tripathy, Partner at Cyril Amarchand Mangaldas, stated that this ruling is a significant turn in the ongoing battle over regulating online platforms. Tripathy pointed out that intermediaries and content creators alike should maintain a cautious stance as the reconstituted Division Bench, now including Justice Gokhale, is expected to deliver a final verdict.
The Bombay HC ruling is an interesting turn of events to an already brewing dilemma. Rule 3(1)(b)(v) of the Intermediary Rules aimed at curbing fake information and false news about any business of the Central Government on intermediary platforms as determined by government’s fact checking unit received a split verdict from the Division Bench of the HC.Arya Tripathy, Partner, Cyril Amarchand Mangaldas
Legal experts have voiced their opinions on the judgment. Navaneeta Kanjilal, an independent legal consultant, emphasized that the lack of clarity in the amendments, particularly in defining “business of the central government,” raises concerns about excessive control over online content.
The fact-checking units, as envisioned, would possess broad discretionary powers, potentially allowing them to arbitrarily declare any information as false, fake, or misleading. Furthermore, the phrase “business of the central government,” as mentioned in the 2023 Amendment Regulations, remains vague, leading to further uncertainty.Navaneeta Kanjilal, Independent Legal Consultant
Meanwhile, Suvarna Mandal, Partner at Saikrishna & Associates, commented on the broader implications, noting that this ruling reinforces the need for legislation that balances content regulation with the preservation of free speech.
There is also a possibility that the proposed Digital India Act/DIA which is slated to replace the IT Act may introduce provisions pertaining to fake news and FCU, though the bill for the DIA will nevertheless go through the parliamentary process.Suvarna Mandal, Partner, Saikrishna and Associates
Justice Chandurkar ruled that the amendments to the IT Rules also violated Article 21 of the Constitution, which guarantees the right to life and personal liberty. He found that the amendments were disproportionate and did not meet the necessary test of proportionality. This means that the restrictions on freedom of speech imposed by the amendments were not justified by a compelling state interest and were not necessary to achieve a legitimate government objective.
The court also noted that the rules fail the test of proportionality under Article 21. The state’s action must be the least restrictive tools to achieve a legitimate aim. Instead, the amendments are overly broad and disproportionate to their intended objective, enabling potential overregulation and censorship.Harshita Agarwal Sharma, Founder, Lexlevel Services
Justice Patel in the case held that the proposed FCUs under the 2023 amendment to the IT Rules 2021 directly infringed fundamental rights under Article 19(1)(g) of the Constitution of India. This article deals with the freedom to practice one’s profession or business. Justice Patel argued that the amendments created an unjustified distinction between online and print content, violating the principle of equality under Article 14 of the Constitution.
Moreover, Justice Patel noted that Article 19(6) of the Constitution enumerates the nature of restrictions that can be imposed on fundamental rights, including restrictions that are necessary in the interest of public order or morality. He argued that the amendments did not meet the requirements of Article 19(6) and were therefore invalid.
The Centre vehemently contended that the right to authentic and correct information is also an essential facet of fundamental rights and needs to be balanced with the rights under Article 19(1)(a). One of the primary objectives of the IT Act is to ensure access to authentic and accurate information, and the Rules were formulated to mitigate the potential harm to the public at large by establishing FCUs. The Union will likely prefer an appeal in the form of a Special Leave Petition under Article 136 of the Constitution before the Hon’ble Supreme Court of India, assailing the decision of the High Court.Suvigya Awasthy, Partner, PSL Advocates & Solicitors
Additionally, Nazneen Ichhaporia, Partner at ANB Legal, highlighted the importance of the ruling in safeguarding citizens’ fundamental rights under the Constitution. “The High Court’s ruling emphasizes the need for regulations that safeguard citizens’ fundamental rights while navigating the rapidly changing digital landscape,” she said.
If the Centre chooses to draft new amendments, it must do so by reinforcing India’s identity as a liberal democracy in upholding fundamental rights, especially those enshrined in Articles 14, 19, and Article 21 of the Constitution. Moreover, it is important to balance the regulation of online content with the preservation of fundamental freedoms, particularly free speech.Nazneen Ichhaporia, Partner, ANB Legal
With the ruling, there is widespread speculation about the government’s next move. The Centre may file a Special Leave Petition (SLP) before the Supreme Court, challenging the High Court’s judgment, or it may opt to amend the rules to address the concerns raised.
The centre can challenge the order of struck down before the Hon’ble Supreme Court. The appeal, however, shall be considered on law which would inter alia include all the grounds of challenge and submissions made by the centre.Chirag Gupta, Principal Associate, Alpha Partners
In light of the court’s ruling, intermediaries and digital content platforms must navigate this period with caution. As the final decision is awaited from the reconstituted Division Bench, experts like Abhishek Bansal, Founder Partner at Acumen Juris, stress the need for maintaining status quo while ensuring that online platforms continue to uphold the principles of free speech.
The Court’s ruling sends a powerful message: while freedom of speech is essential, it can coexist with reasonable content oversight. By rejecting vague regulations, this judgment emphasizes the importance of creating clear legal structures that uphold both our right to express ourselves and the need for accountability online.Abhishek Bansal, Founder Partner, Acumen Juris
The ruling has sent ripples across the legal community, with some expressing concerns over potential state overreach in censoring content. Mohit Garg, Managing Partner at Lex Panacea LLP, pointed out that any such control would undermine the democratic principles that safeguard the freedom of speech.
There is every likelihood that the news which please/glorifies the actions of the government maybe considered as true news and all other negative news maybe placed in the category of false news.Mohit Garg, Managing Partner, Lex Panacea LLP
Meanwhile, advocates like Saurav Agrawal noted that the government might have to consider revisiting the rules in consultation with stakeholders to find a middle ground.
The central government has the option of (a) curing the defects by enacting a fresh Regulation, or (b) by challenging the order before the Supreme Court.Saurav Agrawal, Advocate, Delhi High Court
Yatharth Rohila, Advocate and Partner at Aeddhaas Legal LLP, added, “Following the ruling, the government has the option to challenge the verdict or propose new amendments with balanced provisions that protect free speech while allowing for fact-checking.”
Alternatively, it can propose a new amendment that includes balanced provisions for fact-checking units (FCUs), ensuring they do not infringe upon free speech or violate fundamental rights.Yatharth Rohila, Advocate & Partner, Aeddhaas Legal LLP
Nakul Batra, Partner at DSK Legal, commented, “The recent Bombay High Court judgment, declaring the 2023 amendments to the IT Rules 2021 unconstitutional, is a reaffirmation of the fundamental rights enshrined in the Indian Constitution. Justice Atul Chandurkar’s concurrence with Justice Gautam Patel highlights the judiciary’s dedication to protecting free speech and equality under Articles 14 and 19. By striking down the amendments, which sought to establish government oversight of ‘fake news,’ the court signaled that the rules lacked sufficient safeguards against potential abuse, thus infringing on these fundamental rights.”
It remains to be seen whether the government will appeal the decision or revise the provisions to address misinformation concerns while adhering to constitutional protections.Nakul Batra, Partner, DSK Legal
The petitioners argued that the amendments to the IT Rules were inconsistent with Sections 79, 87(2)(z), and 87(2)(zg) of the IT Act 2000. These sections provide safeguards for intermediaries against liability for third-party content and empower the government to block content that is harmful to public order.
The petitioners also claimed that the amendments violated their fundamental rights under Article 14 of the Constitution, which guarantees equal protection under the law, and Article 19 of the Constitution, which guarantees freedom of speech and expression. They argued that the amendments gave the government excessive power to censor content and suppress dissent.
The court’s decision highlights the lack of reasonable nexus and intelligible differentia, both of which are key to ensuring equality under Article 14 of the Constitution of India. By striking down regulations that arbitrarily discriminate between digital and print media, the court upholds the constitutional mandate of fairness and equal treatment under the law.Abhishek Taneja, Advocate, Delhi High Court
As digital platforms evolve into modern public squares, the laws governing them must strike a delicate balance between regulation and rights. The Bombay High Court’s judgment is a significant step in defining that balance.
With the Bombay High Court striking down the IT Rules Amendment 2023 related to Fact-Check Units (FCUs), the Centre’s next legal move will be challenging the said order before the Hon’ble Supreme Court of India. In an alternative move, the Centre can amend addressing the concerns raised by the Hon’ble Court.Alay Razvi, Partner, Accord Juris
