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Synopsis

Justice Neela Gokhale of the Bombay High Court, in her dissenting opinion, ruled in favor of the 2023 IT Rules Amendment that established a Fact Check Unit (FCU). She emphasized that there should not be bias against the members of the FCU solely because they are government nominees.

“..alleging bias against the members of the FCU only for the reason of their being government appointees is unfair and this by itself does not divest their character as independent persons,” Justice Gokhale said.

Justice Gokhale made this observation in a split verdict pronounced by the high court on petitions challenging Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

The petitions were filed by stand-up comedian Kunal Kamra, the Editors Guild, the News Broadcast Digital Association and the Association of Indian Magazine challenging the constitutionality of the fact check unit established under the amended IT Rules.

The amended rule established a Fact Check Unit (FCU) to identify fake, false, and misleading content on social media against the Central Government.

It also granted the FCU the power to order the takedown of such content against the Central Government.

Justice Neela Gokhale stated that the rule is not violative of Article 14, considering the FCU comprises government officials, which makes the government the final arbiter in its own cause.

She added that the rights of a user or any aggrieved person to approach the grievance redressal mechanism and the appellate authority are contemplated under the Rules. The final arbiter of the issue is a jurisdictionally competent court.

Justice Gokhale mentioned that the manner of FCU's functioning in ascertaining fake, false, or misleading information is yet unknown. In case of any actual bias exhibited by the FCU, recourse to the courts of law is always open to the aggrieved person.

Therefore, a challenge to potential abuse by the FCU based on apprehension is not maintainable, and to that extent, it is premature.

Furthermore, Justice Gokhale noted that political satire, political parody, political criticism, opinions, views, etc., do not form part of offensive information.

“The Rule plainly read targets misinformation, patently untrue information, which the user knows to be fake, or false or misleading and yet is shared with a mala fide intent. The qualification to the offensive information is knowledge and intent. Political satire, political parody, political criticism, opinions, views etc does not form part of the offensive information. The impugned Rule does not directly penalize either the intermediary or the user, without recourse to a Court of law. There is an entire mechanism provided in the form of the grievance redressal officer and the appellate committee,” the judgement reads.

Justice Gokhale's dissenting opinion also emphasized that a fact cannot be fake, and the subjective interpretation of a fact does not arise because the very fact itself is non-existent.

“Content comprising of a critical opinion or a satire or parody, howsoever critical of the Government or its business, if it ‘exists’ and is not fake or known to be false or misleading, does not fall within the mischief sought to be corrected by the impugned Rule. Truth is the opposite of false and truthfulness or falsity of information may be relative, however, a fact cannot be fake. 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. 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 is rejected,” Justice Gokhale said.

She added that the government is in the best position to provide correct facts on any aspect related to the conduct of its own business, and the vagueness of the term by itself is not sufficient to strike down the entire Rule as ultra vires.

“Since it is the Government which is in the best position to provide correct facts on any aspect related to the conduct of its own business, the vagueness of the term by itself is not sufficient to strike down the entire Rule as ultra vires. The words ‘Fake’, ‘False’, or ‘Misleading’ are to be understood in the ordinary sense of their meaning. The qualification to the said words is that the content must be known to be false, fake, or misleading and yet shared with malicious intent to attract the applicability of the Rule. Thus, the impugned Rule does not suffer from the vice of vagueness and cannot be struck down on that ground,” the judgement states.

Case title: Kunal Kamra & Ors vs UOI