The Government of India’s proposed amendments to the Information Technology (IT) Rules, 2021 have garnered significant attention due to the provisions concerning the establishment of a Fact Check Unit (FCU) to identify and prohibit the dissemination of false or misleading information online. The proposed amendment had also been challenged before the Bombay High Court by various entities, including stand-up comedian Kunal Kamra and the Editors Guild of India, on the grounds that it violates the fundamental right to freedom of speech and expression enshrined in Article 19(1)(a) of the Constitution of India.
The primary objections raised by the petitioners are as follows:
■ Empowering an executive body, such as the FCU, to be the sole arbiter of truth and determine which online information is false or misleading amounts to unconstitutional censorship without adequate judicial oversight.
■ It violates the principle of separation of powers by granting the government undue control over online information, particularly in relation to criticism directed towards itself, thereby potentially enabling the dissemination of only the government’s version of events, especially during election periods.
■ The amendments employ vague terminology, such as “misleading information” on “government business,” which is overbroad and susceptible to misuse to suppress dissent or alternative viewpoints.
■ It strikes at the core concept of Article 19(1)(a), which protects the right to dissent and question the government, potentially impacting journalistic freedom and investigative reporting.
The Bombay High Court delivered a split verdict on the matter. While Hon’ble Mr. Justice G.S. Patel struck down the amendments as overstepping the limits set forth in the Supreme Court’s Shreya Singhal verdict, Hon’ble Ms. Justice Neela Gokhale upheld their validity, subject to providing recourse to users.
Despite the case being pending, the Government of India notified the Press Information Bureau as the FCU in March 2023, prompting the petitioners to approach the Supreme Court of India. On March 21, 2024, the Supreme Court stayed the operation of the FCU notification until the High Court renders its final decision, noting that the challenge raises ‘serious constitutional questions’ regarding free speech that require thorough examination.
The legal battle surrounding the FCU rules has become a pivotal point in determining the extent to which the Indian state can restrict online expression to address misinformation while simultaneously safeguarding constitutionally guaranteed digital free speech rights. The final judicial pronouncement on this matter will have far-reaching implications for online content regulation, intermediary liability protections, and digital rights in the world’s largest democracy.