The 'tie-breaker' judge of the Bombay High Court on Friday invalidated the 2023 amendments to the IT Rules, which had granted the Central government the authority to create Fact Check Units (FCUs) to flag "fake and misleading" content related to its affairs on social media platforms.

"I believe that the amendments violate Article 14 and Article 19 of the Indian Constitution," stated Justice Atul Chandurkar, while delivering his 'opinion' on the matter. His ruling followed a split verdict in January 2024 by a division bench consisting of Justices Gautam Patel and Dr. Neela Gokhale.

While Justice Patel had completely struck down the rules, Justice Gokhale had upheld their validity.

Justice Chandurkar further noted that the amendments also violate Article 21 of the Constitution and fail to meet the "test of proportionality."

In his judgment, Justice Patel ruled that the proposed Fact Check Units (FCUs) under the 2023 amendment to the IT Rules, 2021, directly infringed upon fundamental rights under Article 19(1)(g) of the Constitution, which guarantees the freedom to practice any profession or business. He pointed out the differential treatment between online and print content. Article 19(6) outlines the permissible restrictions that can be imposed on this freedom.

Justice Gokhale, on the other hand, opined that the rule was not unconstitutional. She dismissed the petitioner's concern that the Fact Check Unit (FCU) would be a biased body comprised of individuals selected by the government and acting on its behalf, calling it 'unfounded.' She clarified that there was no 'restriction on free speech' and the amendments did not imply any penal consequences for users.

Following the split verdict, the Chief Justice of the Bombay High Court appointed Justice Atul Chandurkar in February as the 'tie-breaker' judge to hear the case and deliver a final opinion on the petitions.

Social media intermediaries like 'X', 'Instagram,' and 'Facebook' would be required to either remove content or add a disclaimer once the government's Fact Check Unit (FCU) identifies it on their platforms, as mandated by the amended rules.

The petitioners argued that the two rules are ultra vires to Sections 79, which protects intermediaries from liability for third-party content, and Sections 87(2)(z) and (zg) of the IT Act, 2000. They contended that the rules violate fundamental rights, specifically the right to 'equal protection under the law' under Article 14, as well as the freedom of speech under Articles 19(1)(a) and 19(1)(g) of the Constitution.

In his plea, political satirist Kunal Kamra expressed concern that these rules could result in arbitrary censorship of his content, as they could lead to his posts being blocked or removed, and even the suspension or deactivation of his social media accounts.

However, the Ministry of Information and Technology has argued that it is in the public interest for “authentic information” related to the government's business to be verified and shared after fact-checking by the Fact Check Unit (FCU), stating that this will help mitigate potential harm to the public.

During earlier hearings, Solicitor General Mehta clarified that intermediaries like Facebook, X, and Instagram cannot simply do “nothing” when content is flagged as fake, false, or misleading by the FCU. If a social media or news platform continues to host such flagged information, it must be prepared to defend its actions in court if any legal action arises.

Senior counsel Seervai, representing Kamra, highlighted the lack of remedies available to users if their content is marked by the FCU as fake, false, or misleading (FFM), arguing that the only recourse is a writ petition. He cited instances where the Press Information Bureau (PIB) has been criticized for disseminating incorrect information, suggesting that the government does not always provide accurate facts. Seervai raised concerns about how such regulations could suppress information that may embarrass the government.