Bombay HC quashes IT amendment rules, AIM and Editors Guild welcome verdict

The Editors Guild of India and Association of Indian Magazines (AIM) welcomes the verdict of the Bombay High Court, striking down the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, as unconstitutional, specifically Rule 3, which sought to empower the Central government to form a fact-check units (FCUs) to identify "fake and misleading" information about its business on social media platforms.

On September 20, while pronouncing the order, Justice Chandurkar opined that “the amendments are violative of Article 14 and Article 19 of the Constitution of India,". The matter was referred to the third judge after a division bench of Justices Gautam Patel and Justice Neela Gokhale delivered a split verdict in January 2024.

The IT Amendment Rules, 2023 were notified by the Ministry of Electronics and Information Technology (MeitY) on April 6, 2023. The rules granted authority to a “fact check unit of the Central Government” to categorise and remove any online content pertaining to “any business of the Central Government” that is deemed “fake, false, or misleading.”

The effect of the rule would have been that the moment the “fact check unit of the Central Government” would have disputed the truth/veracity of a news item regarding “any business of the Central Government”, the fact of such disagreement alone would have obliterated the publisher’s freedom to publish and citizen’s right to access such information.

In June 2023, the Association of Indian Magazines (AIM) filed a petition in the Bombay High Court, challenging the constitutional validity of the IT Amendment Rules, arguing they were ultra vires the Information Technology Act, 2000, and violated the right to freedom of speech and expression. Similarly, the Editors Guild also approached the court, contesting the constitutionality of certain provisions in the 2023 amendments. AIM’s petition was filed alongside others, including those by political satirist Kunal Kamra, the Editors Guild of India, and the News Broadcasters and Digital Association, all challenging the amendments.

In January 2024, the division bench delivered a split verdict, with Justice Patel ruling in favour of petitioners and striking down Rule 3 as unconstitutional, citing concerns about the potential for censorship. Justice Gokhale had upheld the validity on grounds that it targeted misinformation. Justice Chandurkar was subsequently appointed to provide a tie-breaker opinion.

Justice Chandurkar, while striking down the rules, further opined that the amendments also violated Article 21 and did not satisfy the "test of proportionality".

AIM praised its legal team, with support from the Internet Freedom Foundation, for their work in defending press freedom. The association also recognized the contributions of other petitioners and legal teams in the case. AIM views this win as vital for upholding free speech and protecting against potential government censorship.