Why government's proposed Fact Check Unit was deemed unconstitutional

Describing it as an infringement on the right to equality and freedom of speech, Bombay high court on Friday quashed the amended Information Technology rules enabling the Centre to set up its own fact check unit (FCU) and flag social media content about its functioning as 'fake, false or misleading'.Holding the FCU to be unconstitutional, Justice A S Chandurkar of the Bombay high court - who served as 'tie-breaker judge' after a division bench in Jan 2024 delivered a split verdict - described the expression, 'fake, false and misleading' as 'vague and overbroad'."The FCU in a sense is an arbiter in its own cause," said Justice Chandurkar, echoing the view of Justice Patel who had on Jan 31, 2024, struck down the rule as unconstitutional for its vagueness and disproportionality. Justice Patel had differed with Justice Neela Gokhale, on the two-judge bench that heard the matter and arrived at a split verdict, thus bringing it before a third judge.Justice Chandurkar said the FCU rule would have "a chilling effect" on individuals as well as intermediaries; the new rule could have led to loss of 'safe harbour' against legal action for social media platforms if FCU-flagged content was not acted upon. The FCU rule is sans safeguards to prevent its abuse, said Justice Chandurkar, rejecting the Centre's stand that making the FCU's findings subject to a legal challenge was a safeguard. medium113553614Curbs imposed by FCU rule fail proportionality test: JudgeStriking down the Centre's proposed fact check unit, Justice A S Chandurkar of Bombay high court said there was no rationale to undertake an exercise in determining whether information related to the business of Central govt was fake or false or misleading when in digital form but not doing the same when such information was in print."Under the right to freedom of speech and expression, there is no further 'right to the truth', nor is it the responsibility of the State to ensure that citizens are entitled only to 'information' that is not fake or false or misleading as identified by FCU," HC said.Justice Chandurkar in a 99-page opinion accepted all major contentions raised by comedian Kunal Kamra and others who challenged its constitutional validity, citing its "chilling effect" on fundamental rights. The judge said he agreed with arguments that the rule violated Article 14 (right to equality), Article 19 (1) (a) (freedom of speech), and Article 19(1)(g) (freedom of trade) of the Constitution.The third judge's ruling renders a majority view against FCU by 2:1. The judgment to strike down the rule will be formally pronounced soon by a two-judge bench assigned the roster, one of the judges being Justice Gokhale. medium113553607FCU was brought into play in April 2023 through an amendment to rules for intermediaries under IT Act of 2000. The Centre introduced it as a mechanism to flag as 'fake, false or misleading' digital content concerning the 'business' or functioning of the Centre. Kamra, followed by others including Editors Guild of India, News Broadcasters & Digital Association and Association of India Magazines challenged the decision, citing its vagueness and overbreadth and the lack of the Centre's legal capacity to split content online to fall in two categories - non-govt-related and govt-related.The rule cannot be saved by reading it down, Justice Chandurkar concluded, rejecting the Centre's contention of having "adopted the least restrictive mode to prevent the spread" of information that it deemed fake, false or misleading.When he first began hearing the matter in March 2024, Justice Chandurkar had declined Kamra's plea for an interim stay, pending final disposal of the challenge. The Union govt, subsequently, notified FCU. Kamra went to SC which on March 20 stayed the rule, noting constitutional issues had been raised.Justice Chandurkar said the restrictions imposed by the rule failed the proportionality test "especially when it seeks to abridge fundamental rights, (to free speech and trade)." He held, "Rule 3(1)(b)(v) seeks to restrict the fundamental right... by seeking to place restrictions" that do not align with Article 19(2) (reasonable restrictions). It is "impermissible through the mode of delegated legislation," held Justice Chandurkar."The Editors Guild of India is justified in its grievance that it is concerned with both, the print media as well as digital platforms. There is thus an infringement of the right guaranteed under Article 19(1)(g) (freedom of trade)," said the third Judge.