Why in the News?

On September 20, the Bombay High Court declared the amended IT Rules, 2021, unconstitutional for empowering the Centre’s Fact Check Unit to flag “fake or misleading” content about the government, citing vagueness.
Justice Atul Sharachchandra Chandurkar delivered the decisive ruling as the tie-breaker judge, following a split verdict by a division bench of Justices G.S. Patel and Neela Gokhale in January 2024.

Why did the Bombay High Court strike down IT Rules, 2021?

Violation of Constitutional Rights: Justice Atul Chandurkar ruled that the amended rules violated Articles 14 (right to equality) and 19 (freedom of speech and expression) of the Constitution. He characterized the terms “fake, false, or misleading” as vague and overbroad, which could lead to arbitrary enforcement by the government.
Censorship Concerns: The court emphasized that the rules amounted to censorship and lacked necessary procedural safeguards. Justice Patel’s earlier opinion highlighted that they effectively made the government a “judge in its own cause,” undermining free speech.
Chilling Effect on Intermediaries: The requirement for social media intermediaries to act on flagged content within 36 hours to retain their legal protections was seen as creating a chilling effect, discouraging platforms from hosting diverse opinions and criticisms of the government.

The Fact Check Unit (FCU) under the Press Information Bureau (PIB) of the Government of India was established to combat misinformation and fake news related to government policies and initiatives.
The PIB’s FCU was established in November 2019 and was formally notified as the central government’s fact-checking body under the amended Information Technology (IT) Rules, 2021.

The amended Rule 3(1)(b)(v) mandated that social media intermediaries must:

Make “reasonable efforts” to prevent users from uploading content flagged by the FCU as misinformation.
Remove such flagged content within 36 hours if they wish to maintain their “safe harbour” protection against liability for third-party content.

Appointing Justice Chandurkar as a tie-breaker judge to provide a final ruling on the matter after petitions were filed challenging the amended rules.
Initially dismissing applications for an interim stay on the FCU’s establishment but later staying its operation until a final decision was reached regarding the constitutional validity of the rules.

Strengthen Procedural Safeguards: Any fact-checking mechanism should include clear, objective guidelines, and an independent review process to avoid arbitrariness and protect free speech rights under the Constitution.
Promote Transparency and Oversight: Establish a transparent, multi-stakeholder oversight body that includes civil society, legal experts, and technology professionals to ensure fair implementation and avoid misuse of content regulation powers.