Bombay High Court Strikes Down Amended IT Rules, Declares Them Unconstitutional

TONOY CHAKRABORTY

In a significant legal ruling, the Bombay High Court has struck down the amended Information Technology (IT) Rules, deeming them unconstitutional.

The controversial amendments were introduced by the Union government to curb the spread of “fake, false, and misleading” content on social media, particularly content critical of the government.

However, the High Court ruled that these provisions violated fundamental rights guaranteed by the Constitution of India.

The ruling, delivered on September 20, 2024, came after months of deliberation and a split decision earlier in the year. Justice A.S. Chandurkar, who was appointed as the ‘tie-breaker judge’ after the earlier division bench could not arrive at a unanimous verdict, ruled that the amended rules infringed on Articles 14, 19, and 19(1)(g) of the Indian Constitution.

Constitutional Violations

The amended IT Rules were introduced in April 2023, with the goal of monitoring and flagging online content that the government considered false or misleading. These provisions included the establishment of a Fact Checking Unit (FCU), which was empowered to determine the veracity of social media posts about the government.

Once flagged, social media platforms could either take down the content or add a disclaimer. Failing to comply with the FCU’s directives would result in the platform losing its “safe harbour” status, leaving it vulnerable to legal action.

Justice Chandurkar, however, found these provisions to be excessively broad and vague, violating key constitutional rights such as the right to equality (Article 14), freedom of speech and expression (Article 19), and freedom to practice any profession (Article 19(1)(g)).

“The expression ‘fake, false, and misleading’ in the Rules was vague and hence wrong in the absence of any definition,” Justice Chandurkar said in his judgment. The lack of clarity around these terms, the judge argued, would lead to arbitrary enforcement, allowing the government to suppress dissent and stifle free speech.

judgement scale and gavel in judge office

A Split Verdict and a Tie-Breaker

The case against the IT Rules was initially heard by a division bench comprising Justices Gautam Patel and Neela Gokhale in January 2024. However, the two judges delivered a split verdict, with Justice Patel striking down the Rules as unconstitutional, while Justice Gokhale upheld them. Justice Patel had noted that the Rules amounted to censorship and would have a chilling effect on free speech, whereas Justice Gokhale argued that no such effect was evident.

In light of the conflicting opinions, the matter was referred to Justice Chandurkar, who ultimately sided with the retired Justice Patel’s stance. Justice Chandurkar’s ruling has now overturned the government’s attempts to regulate online content through the amended IT Rules, providing a reprieve to social media users and platforms.

A Win for Free Speech Advocates

The judgment has been widely hailed as a victory for free speech advocates, including stand-up comedian Kunal Kamra, who was one of the petitioners in the case. Kamra, along with others, had challenged the amendments on the grounds that they would severely limit free expression and lead to arbitrary censorship of government critics.

The establishment of the FCU was particularly controversial, as critics argued that it granted unchecked powers to the government to label any dissenting opinion as “fake” or “false.” The High Court’s decision to strike down these provisions has been seen as a crucial safeguard for maintaining freedom of expression in India’s digital space.

Government’s Regulatory Ambitions Thwarted

The Union government introduced the amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, in an effort to combat the spread of misinformation and maintain control over narratives surrounding its activities. According to the government, the rise of misinformation, especially on social media platforms, posed a significant threat to public order and national security.

Under the amended rules, social media platforms were required to comply with directives from the FCU, and failure to do so would result in them losing their intermediary protections under the law. Without the safe harbour provision, platforms would become legally responsible for any content posted by users, potentially exposing them to lawsuits and other legal liabilities.

However, Justice Chandurkar’s judgment raises concerns over the scope and application of such regulations. By granting vague powers to a government body to decide what constitutes “fake” or “false” content, the rules risk suppressing legitimate criticism and dissent, which are essential components of a healthy democracy.

Legal and Political Implications

The Bombay High Court’s decision sets a significant legal precedent, limiting the government’s power to control online discourse. The judgment could have far-reaching consequences for how digital platforms operate in India, particularly in relation to content moderation and government oversight.

For now, the ruling is a major blow to the government’s efforts to regulate online content and manage narratives surrounding its policies. It remains to be seen whether the Union government will appeal the decision to the Supreme Court or draft new legislation to address the Court’s concerns.

The Bombay High Court’s decision to strike down the amended IT Rules serves as a critical reminder of the importance of constitutional protections for free speech and expression in the digital age.

While the spread of misinformation remains a genuine concern, this ruling underscores the need for any regulatory framework to be clear, fair, and consistent with the rights enshrined in the Constitution.

As India continues to grapple with the challenges posed by social media and digital platforms, this judgment offers a robust defence of democratic principles in an increasingly digital world.

20-09-2024

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