The Association of Indian Magazines has welcomed the the Bombay High Court verdict, striking down the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, as unconstitutional – specifically Rule 3, which sought to empower the central government to form fact-check units (FCUs) to identify ‘fake and misleading’ information about its business on social media platforms.
On 20 September, while pronouncing the order, Justice AS Chandurkar said “the amendments are violative of Article 14 and Article 19 of the Constitution of India,”. The matter was referred to the third judge after a division bench of Justices Gautam Patel and Dr Neela Gokhale delivered a split verdict in January 2024.
The IT Amendment Rules, 2023 were notified by the Ministry of Electronics and Information Technology (MeitY) on 6 April, 2023. The rules granted authority to a “fact-check unit of the central government” to categorize and remove any online content pertaining to “any business of the Central Government” that is deemed “fake, false, or misleading.”
The effect of the impugned rule would have been that the moment the “fact check unit of the Central Government” would have disputed the truth/veracity of a news item regarding “any business of the Central Government”, the fact of such disagreement alone would have obliterated the publisher’s freedom to publish and citizen’s right to access such information.
Several media organizations, press associations, and digital rights organizations had protested these amendments.
In June 2023, AIM filed a petition before the Bombay High Court, challenging the constitutional validity of this provision for being ultra vires the Information Technology Act, 2000 (IT Act, 2000), and violating the right to freedom of speech and expression.
The AIM’s petition was filed along with other petitions challenging the amendments, by political satirist Kunal Kamra, the Editors Guild of India, and the New Broadcasters & Digital Association.
In January 2024, the division bench delivered a split verdict, with Justice Patel ruling in favor of petitioners and striking down Rule 3 as unconstitutional, citing concerns about the potential for censorship. Justice Gokhale had upheld the validity on grounds that it targeted misinformation. Justice Chandurkar was subsequently appointed to provide a tie-breaker opinion.
Justice Chandurkar, while striking down the rules, further opined that the amendments also violated Article 21 and did not satisfy the “test of proportionality”.
AIM said in a statement that it appreciated the help of the legal team that worked for this cause. The petition was drafted by the legal team of Internet Freedom Foundation, comprising Gautam Bhatia, Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh, Radhika Roy and Gayatri Malhotra. The petition was filed by advocate Aditi Saxena in the Bombay High Court.
