The Bombay High Court, in a 2:1 majority, on Thursday formally struck down key 2023 amendments to the Information Technology Rules, which had allowed the central government to establish fact-check units to censor news related to its activities.
The ruling was issued in the case Kunal Kamra v. Union of India & Ors, with the petitions filed by comedian Kunal Kamra and the Editors Guild of India.
Justices AS Gadkari and Neela Gokhale delivered the verdict, branding the amendments as unconstitutional and a threat to free speech.
Last week, the Bombay High Court expressed concerns about the establishment of FCUs. The court opined that the amendments violated constitutional rights and did not meet the test of proportionality.
The case, initially heard by a division bench, resulted in a split verdict, necessitating the opinion of a third judge, Justice AS Chandurkar, to break the deadlock.
During the hearings, Solicitor General Tushar Mehta, representing the government, defended the amendments. He argued that FCUs would only flag content related to government business as fake or misleading, leaving the final decision to social media intermediaries. If flagged content wasn't removed, platforms could add disclaimers to alert users, and the matter could be taken to court for further review.
Mehta further stated that fact-checking is a standard practice among private companies, and the government should have similar authority.
However, petitioners contended that the amendment would have a chilling effect on free expression, as intermediaries might remove content preemptively to avoid legal risks.
Earlier, the court had refused to stay the establishment of FCUs while the case was going on. Thereafter, the division bench delivered a split verdict on Jan. 31, which led to the involvement of a third judge to conclude the matter.
With this ruling, the amendments allowing government fact-check units have been nullified.
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