The Bombay High Court has struck down the central government’s plan to establish a fact-checking unit (FCU) under the Information Technology Amendment Rules, 2023. The decision comes in response to a petition filed by standup comedian Kunal Kamra, challenging the constitutional validity of the Centre’s move. Justice A S Chandurkar, delivering the final verdict on September 20, declared that the proposed IT Amendment Rules violated key provisions of the Indian Constitution, namely Articles 14 (right to equality), 19 (freedom of speech and expression), and 19(1)(g) (right to profession).
This judgment followed a split verdict issued by a division bench of the Bombay High Court in January. The bench, consisting of Justices Gautam Patel and Neela Gokhale, was divided in their opinions. While Justice Patel ruled that the IT Rules amounted to censorship and struck them down, Justice Gokhale upheld the rules, arguing that they did not pose a “chilling effect” on free speech, as the petitioners had claimed. The matter was then referred to a third judge, leading to the court final verdict on September 20.
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 the 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 Supreme Court had previously stayed the Centre’s notification that would have made the fact-checking unit operational, stating that the government could not proceed until the Bombay High Court ruled on the case. The Central government argued that the FCUs do not seek to curb criticism or satire but are focused solely on government-related content. However, the main controversy since the beginning was that the establishment of a Fact Checking Unit with powers to flag misleading or false online content concerning the government would have a chilling effect on fundamental rights.
The 2023 fact-checking amendment contradicts the right to free speech and expression under the Constitution. The amendment, if enforced, would allow the Indian government to label content about its activities as “fake,” “false,” or “misleading,” and demand its removal — ultimately handing authorities control over what people can say about them online. No doubt, the unchecked spread of misinformation online poses a formidable threat to the country’s social and democratic fabric, and measures need to be undertaken to counter it. However, the need of the hour is a balanced approach, which upholds constitutional freedoms while providing an equitable mechanism to allow checks and balances.
