The Bombay High Court on Wednesday delivered a split verdict on a series of petitions challenging the amended Information Technology (IT) Rules, which empower the government to identify “fake news” on social media platforms through a Fact Check Unit (FCU).

The petitions, including one filed by stand-up comedian Kunal Kamra, were met with divergent opinions from justice Gautam S Patel — who held that the rules be struck down — and justice Neela K Gokhale, who rejected the petition.

The disagreement prompted the bench to direct the pleas to be referred to Chief Justice Devendra Kumar Upadhyaya for further consideration by a third judge, in accordance with the High Court Rules. Subsequent to the verdict, the central government informed the High Court that the FCU would not be notified for ten more days.

In his verdict, Justice Patel expressed concerns regarding the amended rule’s potential for censorship of user content, highlighting the shift in responsibility for content accuracy from creators to intermediaries. He emphasised on the need for clear guidelines and criticised the imbalance in addressing grievances concerning government-related information compared to other sensitive issues.

He highlighted the submission regarding Article 14 — the Constitutional provision that holds equality before law — and the flawed classification, asserting its correctness. “There is no particular reason why information relating to the business of the central government should receive ‘high value’ speech recognition, more deserving of protection with a dedicated cell to identify that which is fake, false or misleading, as opposed to precisely such information about any individual or news agency,” he stated.

According to him, “This sits at odds with the fact that the biggest megaphone and the loudest voice is that of the government: if there is one entity that does not need such protection, it is the government. It already has an ‘authentic’ voice.”

Drawing attention to the perceived hypocrisy, he said the government’s claim to be the “best placed” to discern the truth about its affairs applies equally to every citizen and entity. He pointed out the inconsistency that while complaints of a serious nature, such as pornography, child abuse, and intellectual property violations, can only be addressed after following a grievance redressal procedure, any information related to the business of the central government can be labelled as fake, false, or misleading by the FCU without such safeguards.

Further, acknowledging the issue of deepfakes, he emphasised that the opinion of the FCU or the Press Information Bureau (PIB) labelling a specific piece of government-related information as false or misleading should not be considered sacrosanct. “Who, after all, is to fact check the fact checker? Who is to say if the view of the FCU is fake, false, or misleading,” he queried.

In contrast, justice Gokhale accepted the validity of the amended rules, stating that they target misinformation with malicious intent while safeguarding freedom of speech. According to justice Gokhale, a rule cannot be invalidated solely based on concerns of potential abuse. She emphasised that petitioners and users retain the right to approach the court if any action by intermediaries infringes upon their fundamental rights under Articles 14, 19, and 21, even if the shared information does not align with the definition of offensive information as per the Rule.

Justice Gokhale affirmed citizens’ entitlement to free speech and all other constitutionally guaranteed rights. However, she questioned whether individuals can claim a right to disseminate misinformation or fake content without facing resistance from the administration, acting on behalf of and in the interest of the wider citizenry.

She highlighted the evolving threat of disinformation and its potential to sow social discord, increase polarisation, and influence election outcomes. Justice Gokhale underscored the ease with which state and non-state actors, including those with geopolitical aspirations, ideological motives, and violent extremist agendas, can manipulate social media narratives on an unprecedented scale, necessitating intervention.

She said the amended rule specifically targeted misinformation and patently untrue information knowingly shared with malicious intent by users. She emphasised that political satire, parody, criticism, opinions, and views do not constitute offensive information under the rule. Furthermore, content containing critical opinions, satire, or parody, regardless of its stance towards the government or its business, is not subject to the rule’s correction.

Regarding the nature of truth and falsity, justice Gokhale explained that “fake is something which is non-existent. The question of subjective interpretation of fact does not arise, because the very fact itself is non-existent.” Therefore, she rejected the argument that “truth is not a binary and hence, any opinion, satire, parody, sarcasm, criticism, etc. will fall within the realm of the impugned Rule making the Rule unconstitutional.”

The amended IT Rules, faced challenges to their constitutional validity. The rules require the intermediaries — social media platforms — to take down content identified by the FCU as “fake or misleading” to retain their legal immunity against third-party content.