Mumbai: The Bombay high court on Wednesday (January 31) delivered a split verdict on the petition seeking to strike down rules 3(i)(II)(A) and (C) of the IT Amendment Rules, 2023.The new rules give the Union government powers to set up a “fact-checking unit” (FCU) to assess social media posts and term posts as “fake, false or misleading”.The petition was filed by stand-up comedian and political satirist Kunal Kamra, the Association of Indian Magazines, the News Broadcasters and Digital Association and the Editors’ Guild of India.A division bench of Justices Gautam Patel and Neela Gokhale presided over the session.While Justice Patel passed an order favouring the petitioners, Justice Gokhale upheld the amendment made to the Rules.The matter will now be referred to another judge and meanwhile, the FCU will not be notified for the coming ten days.Under the amended rules, once the government’s FCU identifies content as fake, false or misleading, social media platforms like X (formerly Twitter), Instagram and Facebook would either have to take the content down content or add a disclaimer.Justice Patel, in a 148-page order, however, observed that the state classifying speech as “true or false” and compelling its non-publication could be “nothing but censorship”.Senior advocate Navroz Seervai, appearing for Kamra, had raised concerns over the lack of remedies available to social media platform users in the event of their content being flagged as fake, false or misleading.Seervai had also argued that the said IT rule violates the principles of natural justice.A battery of seasoned lawyers, including senior advocates Darius Khambata and Arvind Datar and advocates Shadan Farasat and Gautam Bhatia, appeared for the petitioners.The petitioners had pointed out that allowing the government to decide what is fake and false risks arbitrary and discriminative orders and would directly violate Articles 14 and 19 (1)(A) of the constitution along with the principles of natural justice.Datar had argued that the rule attempts to exceed the restrictions imposed on the right to freedom of speech and expression under Article 19(2) of the constitution.Article 19(2) permits the government to impose “reasonable restrictions” on the freedom of speech and expression “in the interests of public order”.Solicitor general Tushar Mehta, appearing on behalf of the Union government, had spoken of the dangers of allowing fake news on social media.To this, Justice Patel observed, “…in our constitutional scheme, free speech is always to be under-regulated, and the restrictions on it – attempts at control and abridgement – must be over-regulated, not the other way around.”He continued: “This is not a finding that there is a fundamental right to falsehood or fake news or deepfakes. Quite the contrary. That is not even the question before us.“The only issue is whether the state has, in our constitutional set-up, an overriding authority to arrive at an absolutist determination of both content and expression as ‘the truth’ and to compel a particular form of content and expression? I would have the greatest difficulty in accepting a proposition of this width.”To support his argument, Mehta had played video clips showing deepfakes of Hollywood actor Morgan Freeman and other well-known personalities in court.Justice Gokhale, in her 92-page order upholding the amended FCU clause, said: “Not only can belief in misinformation lead to poor judgments and decision making, but it also exerts a lingering influence on people’s reasoning even after it has been corrected.”She further observed that the “dangers of fake news on social media intermediaries cannot be played down any longer”.“It is in this scenario that the government appears to have framed the impugned rule to curb the menace of fake, false, and misleading information related to business of the government. On an exacting understanding of the rule, the information to be offensive must be shared with the knowledge that it is not genuine and is shared with malicious intent.”In her order, Justice Gokhale acknowledged that in a “vibrant” and the “largest democracy in the world”, there is bound to be a “suspicion” regarding the intent of the government in introducing a provision such as the FCU rule.“The apprehensions of the petitioners,” she said, “are also justified and cannot be swept away as frivolous or motivated.”“But regulating free speech to the limited extent of fake, false and misleading information in a way has the potential to create better conditions for citizens to sift facts from fake and make informed decisions about what and how they want their societies to be, based on an opportunity to receive unadulterated information.”According to Justice Gokhale, the rule “meets the test of proportionality”.“[The] right of citizens to participate in the representative and participative democracy of the county is meaningless unless they have access to authentic information and are not misled by misinformation, information which is patently untrue, fake, false, or misleading, knowingly communicated with malicious intent,” she wrote in her judgment.Gokhale also said that the measures adopted by the government are “consistent with the object of the law and the impact of the encroachment on a fundamental right is not disproportionate to the benefit which is likely to ensue”.Patel, however, observed that “it is unthinkable that any one entity – be it the government or anyone else – can unilaterally ‘identified’, (meaning picked out and decided) to be fake, false or misleading.”“That surely cannot be the sole preserve of the government,” he observed as he went on to express his regret for not being able to persuade Justice Gokhale.“I regret that I have been unable to persuade Justice Gokhale to my perspective, nor I to share hers,” he wrote in his concluding remark in the judgement.
