Tl;dr
With Justice Gautam S. Patel ruling in favour of the Petitioners, and Justice Neela Gokhale against, the Bombay High Court has delivered a split verdict in a batch of petitions filed by Association of Indian Magazines, Kunal Kamra and others, challenging the constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (‘IT Amendment Rules, 2023’) dated April 6, 2023. These rules permit a Fact-Check Unit (“FCU”) of the Union Government to identify “fake or false or misleading” online content “related to the business of the Central Government” and demand its removal from the internet.
Why should you care?
The proposed FCU established as per the IT Amendment Rules, 2023, would hold the authority to determine the accuracy of information online and decide whether it should remain accessible or be removed. Failure by intermediaries to take down content flagged by the fact-check unit may result in the loss of their safe harbor protections under Section 79 of the IT Act. This potential outcome raises concerns about the potential impact on the autonomy of the free press within the realm of the Indian internet.
History of the case before Bombay High Court
The Association of Indian Magazines, Kunal Kamra and others filed writ petitions challenging the constitutionality of provisions relating to the FCU before the Bombay High Court. In April 2023, as a result of the petitions, the Union Government provided an undertaking not to constitute its FCU. The undertaking, having been accepted by the Bombay HC, has been operating as an effective stay against the amendment.
In June 2023, the Bombay High Court directed that all these petitions be scheduled for final hearing on July 6 and 7, 2023. During these hearings, Senior Advocate Navroz Seervai expressed concerns regarding the Rules and questioned the government’s ability to impartially adjudicate these matters while upholding the principles of natural justice.
Mr. Gautam Bhatia, representing the Association of Indian Magazines, argued that the government should not unilaterally assume the role of determining truth. He highlighted an implicit coercive element in the IT Amendment Rules, 2023, where intermediaries risk losing their safe harbour protection if they fail to comply with the fact-check unit’s directives, thereby leading the intermediaries to prioritise their commercial interests over the free speech of users. He underscored the potential impact of the IT Amendment Rules, 2023 on free speech in India and the necessity of safeguarding it from excessive governmental control.
On September 26 and 27, 2023, the Hon’ble Solicitor-General of India, Mr. Tushar Mehta, on behalf of the Union Government, made submissions clarifying that the fact-check unit’s primary focus is on identifying patently false government-related content, with its role limited to flagging and providing feedback on misinformation. The government submitted that the ultimate decision rests with intermediaries, and there are provisions for an internal dispute resolution mechanism, with the option for courts to intervene if disputes persist. The government further emphasised that the IT Amendment Rules, 2023 are designed to target false information on anonymous platforms without curtailing humour or criticism of the government. It was also submitted that the definition of “information” in this context pertains only to facts that can be either true or false.
Subsequently, the Petitioners made their rejoinder submissions on September 27 and 29, starting with Mr. Bhatia. The Bench thereafter reserved the matter on September 29, and allowed the parties to file supplementary notes of arguments by October 14, 2023.
What happened today?
Today, the Bombay High Court delivered a split verdict, with Justice Gautam Patel ruling in favour of the Petitioners, and Justice Neela Gokhale upholding the constitutionality of the IT Amendment Rules, 2023.
As per the Bombay High Court Rules, when such an impasse is reached, the matter is to be placed before a third Judge for proper adjudication. The matter will now be placed before the Chief Justice of the Bombay High Court to decide on the Third Judge.
At this juncture, Solicitor-General Tushar Mehta, appearing for the Union of India, expressed concerns on how the undertaking could not be extended given that the delay in reaching a conclusion would not cause any prejudice to the Petitioners, but would not be effective for intermediaries.
Taking note of the same, the Bench stated that courtesy would have to be extended to the Chief Justice so that a call could be made. Accordingly, the undertaking given by the Union Government that a Fact-Check Unit will not be constituted has been extended by a period of 10 days. Liberty has been granted to the Petitioners to move an application seeking further extension of the protection.
We will keep you updated on what happens next!We are grateful to the Association for Indian Magazines (AIM) for their confidence in us for taking up this important matter that goes to the root of online free speech for all Indians.
We are grateful to Advocate Gautam Bhatia who led the arguments for AIM, to the team comprising Adv. Aditi Saxena, and the IFF Legal Team of Advocates Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh, Radhika Roy and Gayatri Malhotra. We are also grateful to Sr. Adv. Navroz Seervai for his leadership and guidance and to Advocates Arti Raghavan and Meenaz Kakalia.
Important Documents:
- Previous blog post on submissions on behalf of government titled, ““Intermediaries can decide if they want to take down ‘fake’ information” - The Union Government concludes its submissions in petition challenging the IT Amendment Rules, 2023” [Link]
- Previous blog post on submissions on behalf of petitioners titled, “Updates from the Bombay HC on the Petition Challenging the IT Amendment Rules, 2023” [Link]
- Affidavit in Rejoinder on behalf of the petitioner [Link]