IT Rules on Fake News: Is it permissible in law for a statute to have unbound discretionary authority, asks Bombay HC

Is it permissible in law for a statute to have unbound and limitless discretionary authority, the Bombay High Court asked on Friday 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 the 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.

Stand-up comedian Kunal Kamra, the Editors Guild of India and the Association of Indian Magazines filed petitions in the high court against the rules terming them as arbitrary, unconstitutional and saying that they would have a “chilling effect” on the fundamental rights of citizens.

The bench on Friday said the Rules say 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.

“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,” Justice Patel said.

The court questioned if this would also include opinions and editorial content.

“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,” Justice Patel said.

On April 6 this year, the Union government 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.

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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.

The Union government had earlier assured the court that it would not notify the fact-checking unit till July 10.

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