Bombay HC Strikes Down IT Rules, Citing Threat to Free Speech, Censorship

The Bombay High Court declared the amended Information Technology (IT) Rules unconstitutional on 20 September 2024. Notably, the court held that it declared the amending provisions of Rule 3 of the Rules unconstitutional wherein the Central government is empowered to exercise its discretion to form Fact Check Units (FCUs) for determining the details branded as “fake and misleading” about its functioning on social media. The Association of Indian Magazines and the Editors Guild of India wel comed the verdict after this judgment. They pointed out that its significance lay in relation to the protection of freedom of speech and protection against state censorship.

While pronouncing the judgment, Justice Chandurkar said “the amendments are violative of Article 14 and Article 19 of the Constitution of India”. The matter has been placed before the third judge as a division bench of Justice Gautam Patel and Justice Neela Gokhale gave a divided verdict in January 2024.

On April 6, 2023, the Ministry of Electronics and Information Technology, also referred to as MeitY, issued a notification related to the IT Amendment Rules, 2023. Those rules gave authority to a “fact check unit of the Central Government” the ability to classify and take down any online content related to “any business of the Central Government” as “fake, false or misleading.”

That effect would have been that when the “fact check unit of the Central Government” would have questioned the fact/veracity of a news item relating to “any business of the Central Government”, it is the fact of such disagreement alone that would have vitiated the publisher’s freedom to publish and citizen’s right to access such information.

The Bombay High Court heard an argument in June 2023 from AIM on a petition challenging the constitutional validity of the IT Amendment Rules. According to AIM, these IT Amendment Rules are ultra vires the Information Technology Act, 2000, and violation of freedom of speech and expression. Editors Guild also approached the court challenging some provisions with regard to constitutionality in the 2023 amendments.

On 30 January 2024, the two-judge bench delivered a split verdict; it was struck down by Justice Patel. He ruled in favour of the petitioners and kept his reasons behind the arguments for its declaration as unconstitutional with regard to the possibility of censorship. Justice Gokhale had upheld the provision on grounds of targeting misinformation. For the tiebreaker, Justice Chandurkar was roped in.

Striking the rules, Justice Chandurkar further observed that these amendments also run foul of Article 21 and fail the “test of proportionality”.

AIM thanks its lawyers, assisted by the Internet Freedom Foundation, for their spirited defense and advocacy of freedom of the press. At the same time, it thanks other petitioners and their legal teams for their efforts. For AIM, this is a very significant victory for its defense against what amounts to an effective possibility of government censorship of free speech.