'If The Effect Is Unconstitutional Then It Has To Go': Bombay HC On Govt Fact Check Units

The Bombay High Court has remarked that if the effect of a rule or law is unconstitutional then it has to go.

The Bombay High Court made an observation stating that if a rule or law has an unconstitutional effect, it must be discarded. The remark came during the hearing of pleas filed by the Editors Guild of India, the Association of Indian Magazines, and the New Broadcast and Digital Association challenging certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.

The contested amendments allow the government to establish a Fact Checking Unit (FCU) with the authority to identify and label online content it deems to be false or fake news related to government activities. The judges, Justices GS Patel and Neela Gokhale emphasized the need to comprehend the wide-ranging power and influence of technology. They highlighted the unique challenges presented by the internet and the government's attempt to address them through the FCU. The judges stated that the legitimacy of the FCU would be determined during the proceedings.

Navroz Seervai, representing stand-up comedian Kunal Kamra, opened the arguments, questioning the need for the government to adopt a "nanny-state approach". He argued against the government's lack of faith and confidence in the public, suggesting that they should not be treated as dependent individuals requiring shielding.

“No matter how laudable or high the motives are, if the effect is unconstitutional then it has to go,” the Bench said in response, as quoted by The Bar and Bench. 

An intervention plea was filed by the New Broadcast and Digital Association representing 27 television channels which concurred with Kamra that the rule violates constitutional principles and fundamental rights, as reported by The Times of India.

Senior counsel Arvind Datar for the channels said in the absence of defining what is false, fake, or misleading, the law has to be struck down as 'free speech' is so wide it can't be taken away by Parliament, as reported by The TOI. "There would need to be a Constitutional amendment" for such a curb, he said.

"Let's take a hypothetical or maybe not-so-hypothetical situation. We are soon going to enter 2024 and we will see campaigns and rallies. Suppose an online person questions the statements made in such a rally; is it the business of the government to look into it and say it is wrong?," Justice Patel said, as quoted by TOI.

Additionally, the Bench questioned the need for the amendment when the government-run Press Information Bureau (PIB) already existed. The judges sought clarification on why the existing structure was considered inadequate and why an amendment was necessary, highlighting that whenever the PIB issues a clarification, news channels and newspapers widely report it.

Justice Patel concluded by addressing the concerns raised by Seervai, referring to the chilling effect of self-censorship. He stated that the validity of the amendment would be determined based on the government's ability to justify it.