New Delhi: The Supreme Court Tuesday agreed to examine the Centre’s plea against the Bombay High Court verdict that struck down the 2023 amendments to the Information Technology Rules aimed at regulating fake and false content on social media against the government.
The top court, however, refused to stay the 2024 Bombay High Court verdict, which not only struck down the amended Information Technology Rules but termed them “unconstitutional”.
A three-judge bench comprising Chief Justice of India Surya Kant and Justices R Mahadevan and Joymalya Bagchi issued notices to the original petitioners, including stand-up comedian Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines.
The Bombay High Court, September 26, 2024, formally struck down the amended Information Technology Rules aimed at identifying and regulating fake and false content on social media against the government.
During the hearing, Solicitor General Tushar Mehta, representing the Centre, sought a stay on the High Court’s order, arguing that the government did not intend to “block content completely” but rather to regulate misinformation.
The CJI expressed concern over the current state of social media platforms.
“The way some of these platforms are behaving nowadays… look at the illustrations placed on record, how dangerously (they operate),” the CJI said, specifically pointing to fake messages concerning the Indian Army and national policies.
He questioned whether the current system shifts the entire burden onto the machinery without imposing obligations on intermediaries.
Senior advocate Arvind Datar, appearing for one of the respondents, said existing rules already allow for the removal of content within 24 hours. The 2023 amendments were flawed because “misleading information” remained undefined, he said.
“Following the Kartar Singh precedent, what is misleading is not defined,” Datar said, adding that any problematic content cited by the government had already been removed under existing protocols.
The bench condoned the 400-day delay on the part of the Centre in filing the appeal and directed counter-affidavits to be filed within four weeks.
The legal battle centres on the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.
These rules empowered the Central Government to establish a Fact-Check Unit (FCU) to identify “fake, false, or misleading” information regarding “government business” on social media. Under these rules, if the FCU flagged content, social media intermediaries (like X, Facebook, or YouTube) were required to take it down or risk losing their “safe harbour” immunity.
After the third judge’s decision, the Bombay High Court, on September 24, 2024, formally struck down the amended Information Technology Rules aimed at identifying and regulating fake and false content on social media against the government.
September 20, 2024, a single bench of Justice A S Chandurkar of the high court held that the amended rules, being vague and broad, had the potential of causing a chilling effect not only on an individual but also on the social media intermediary.
Justice Chandurkar served as the tie-breaker judge after a division bench issued a split verdict on the matter earlier.
Following the third judge’s decision, a division bench of Justices A S Gadkari and Neela Gokhale formally pronounced the verdict on a bunch of petitions filed by stand-up comedian Kunal Kamra, Editors Guild of India, News Broadcast and Digital Association and Association of Indian Magazines challenging the new regulations.
“In view of the majority opinion, Rule 3 (1) (V) is declared unconstitutional and is struck down. The petitions are accordingly allowed,” the high court had said.
