GUWAHATI: The third umpire judge's opinion against the Centre's FCU rule led the Bombay high court to invalidate it on Thursday, September 25. The rule that established Fact Check Units (FCUs) to identify "fake, false, and misleading" information about the Centre's business that was posted on social media and digital platforms was declared "unconstitutional" by the court.
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Following a split decision by the initial two-judge bench, a bench of Justices Ajay Gadkari and Neela Gokhale granted the petitions filed by comedian Kunal Kamra, the Editors Guild of India, the Association of Indian Magazines, and the News Broadcasters and Digital Association. “In light of the majority opinion, rule 3(1)(v) is declared unconstitutional and is struck down,” the bench stated on Thursday. As a result, petitions are allowed. “Justice Chandurkar, who was appointed as the third judge following a split verdict in the earlier case , noted that the rule was ambiguous, overly broad, and disproportionate. He agreed with most of Kunal Kamra's and other people's claims that the rule had a "chilling effect," which he accepted. As a result, the High Court ruled 2:1 that the FCU's April 2023 amendment to the Information Technology Act's intermediary guidelines was "unconstitutional."
The rule gave the Centre permission to set up FCUs and label social media content related to its work as "fake, false, or misleading." "On January 31, 2024, Kamra's challenge was initially heard by a division bench composed of Justices Gautam Patel and Neela Gokhale, who were later joined by others. Because Justice Patel had since retired, the matter was brought before the division bench for the formal pronouncement of the judgment, as per procedure, following the delivery of the third judge's opinion. Justice Chandurkar had turned down Kamra's request for an interim stay on the rule on March 11, 2024. The Supreme Court, however, stayed the rule on March 21 in light of the constitutional issues raised by the challenge to its validity. Navroz Seervai, Kamra's senior counsel, led the arguments, highlighting the rule's broad scope and ambiguity, particularly the terms "fake, false, and misleading," which could have a "chilling effect." Advocates for the Editors' Guild, Shadan Farasat, and Gautam Bhatia for other petitioners, as well as senior counsel Arvind Datar for TV Networks, argued that the amendment violated Articles 14 (right to equality), 19(1)(a) (freedom of speech), and 19(1)(g) (freedom of trade) of the Constitution. These arguments were accepted by the third judge.
The Centre's Solicitor General Tushar Mehta argued that the rule was appropriate, citing concerns about citizens' safety in a digital age where information is instantly shared with millions. Mehta also stated that the rule's purpose was to shield the public from inaccurate information regarding the Centre's operations and that it only required a disclaimer at most. He emphasized that regulation is necessary because the digital medium has no geographical limitations. Seervai, on the other hand, argued that the broad definition of "information" could include political commentary and satire, infringing on fundamental rights, and that this could trap innocent people without adequate warning. Justice Gautam Patel had already been influenced by his arguments regarding the FCU's "chilling effect," the possibility of "self-censorship," and the Centre acting as a "nanny state," who ruled that the rule was invalid because it violated the right to free speech. The petitions had been denied by Justice Neela Gokhale on the grounds that the rule did not violate any fundamental rights. Kamra and the other petitioners won because Justice Chandurkar's and Justice Patel's points of view were in line with one another. The decision can be challenged by the Centre before the Supreme Court.
