The Bombay High Court, on Friday questioned if “Is it permissible in law for a statute to have unbound and limitless discretionary authority?” while hearing a bunch of petitions against the recently amended Information Technology (IT) Rules against fake news.
A division bench of Justices Gautam Patel and Neela Gokhale said before it goes into effect, the Rules would have on the fundamental rights of citizens, it needs to know the boundaries and limits of the words – fake, false, and misleading – used in the Rules.
The court was hearing a bunch of petitions challenging the IT Rules that empower the Centre to identify fake, false, and misleading information posted on social media against the government and its business.
Kunal Kamra, a stand-up comedian, the Editors Guild of India, and the Association of Indian Magazines filed petitions at the high court against the rules terming them as arbitrary, and unconstitutional and saying that they would have a “chilling effect” on the fundamental rights of citizens.
On Friday, it was said by the bench that the Rules say the action would be taken when some content/information is fake, false, and misleading and some authority, in this case, the Fact Checking Unit (FCU), is assuming the power to unequivocally say that the content is false or not.
According to Justice Patel, “Having an FCU is fine but what we are concerned about is with the authority conferred on this FCU. What we find extremely and seriously problematic is these words – fake, false and misleading.”
The court questioned if this would also include opinions and editorial content.
Answering it, Justice Patel said, “I do not know or cannot make out what the boundaries of these words are. Is it permissible in law for a statute to have unbound and limitless discretionary authority like this? What are the limits and boundaries of these words?”
The Union government, on April 6th 2023 promulgated certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including a provision for a fact-checking unit to flag fake, false or misleading online content related to the government.
The three petitions sought the court to declare the amended Rules unconstitutional and direct the government to restrain from acting against any individual under the Rules.
