This case involves challenges to the validity of Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, as amended on April 6, 2023. The petitioners, including Kunal Kamra, contend that the amended rule violates fundamental rights guaranteed under Articles 14, 19(1)(a), and 19(1)(g) of the Constitution of India. The matter was heard by a Division Bench of the Bombay High Court, which rendered differing judgments, necessitating a reference to the third judge.

A Division Bench composed of Justice G.S. Patel and Justice Neela Ghokale heard the matter. Justice G.S. Patel, in his judgment, struck down the Amendment, deeming it ultra vires of Articles 14, 19(1)(a), 19(2), 19(1)(g), and 19(6) of the Constitution of India, as well as Section 79 of the Information Technology Act, 2000. In contrast, Justice Neela Ghokale upheld the Amendment.

The Amendment, which was notified by the Central Government on April 6, 2023, empowers the Government to establish a Fact-Checking Unit (FCU) with the mandate to identify content on online platforms as “fake, false, or misleading” if it pertains to the Government’s business. This analysis focuses on the verdict of Justice G.S. Patel and the question of law raised in the judgement.

 

Issues Raised

  1. Whether the amended rule violates Article 19(1)(a) (freedom of speech and expression) and Article 19(1)(g) (freedom to practice any profession).
  2. Whether the rule is overbroad and vague, lacking clear standards for determining what constitutes “fake, false, or misleading” information.
  3. Whether the rule violates Article 14 (equality before law) by targeting content related only to the Central Government and not State Governments or other entities.
  4. Whether the rule breaches principles of natural justice by allowing the government to be the judge of content affecting its own business without an independent mechanism for review.

 

Questions of the Law Involved

The following legal questions were considered by the Court: a. Does the Amendment, which restricts online content, violate the fundamental rights under Articles 19(1)(a) and 19(1)(g) of the Indian Constitution? b. Does the Amendment contravene Sections 79 and 87(2)(zg) of the Information Technology Act? c. Does the Amendment infringe the fundamental rights guaranteed under Article 14? d. Can the Central Government lawfully impose prior restraints on publications that may defame the state or its officials? e. Does the Amendment meet the tests of reasonableness, necessity, and proportionality in restricting the right to free speech and expression?

 

Challenges to the Amendment

The petitioners primarily argued that the Amendment violated Articles 14, 19(1)(a), and 19(1)(g), along with being ultra vires of Sections 79, 87(2)(z), and 87(2)(zg) of the Information Technology Act, 2000. They contended that Rule 3(1)(b)(v), read alongside Rule 7 of the Intermediary Rules, placed an undue “chilling effect” on free speech by transferring the responsibility for user-generated content from the content creator to intermediaries and service providers. Rule 7, they argued, compels intermediaries to adhere to FCU directives under Rule 3(1)(b)(v), or else they risk losing the safe harbor protections under Section 79 of the Act.

The petitioners also alleged that the establishment of the FCU violated principles of natural justice, as it allowed the Government to control and arbitrate the veracity of online content related to its own affairs. Moreover, they claimed that vague definitions, such as “business of the government,” “fake,” “false,” or “misleading,” made the Amendment overly broad, increasing the risk of arbitrary enforcement. They also argued that the subjective nature of the Amendment, whereby the intention or awareness of the user did not impact the FCU’s decision to classify content as “fake, false, or misleading,” further contributed to its vagueness.

The petitioners contended that freedom of speech under Article 19(1)(a) cannot be construed as a right to access only truthful information, especially when the determination of truth is vested in a government-controlled mechanism. They supported their claims with judicial precedents from Indian and American jurisprudence, as well as established practices in print media fact-checking. Additionally, they pointed out that any expansion of Article 19(2) could not be effected through delegated legislation but only through a constitutional amendment.

Further complicating the issue is the fact that over 17 petitions challenging the constitutional validity of the Intermediary Rules are pending in various High Courts. In two cases, petitioners have been granted protection against coercive action by the Central Government for non-compliance with the rules. The Central Government has filed a Special Leave Petition (SLP) to transfer all these cases to the Supreme Court, which has temporarily stayed proceedings before the High Courts.

 

Analysis of the Case

Differing Opinions of the Division Bench: Justice G.S. Patel struck down the rule, finding it ultra vires Articles 14, 19(1)(a), and 19(1)(g), as well as Section 79 of the Information Technology Act, 2000. He argued that the rule lacked safeguards, allowed the government to act as its own arbiter, and failed the tests of proportionality, overbreadth, and vagueness as established in Shreya Singhal vs. Union of India.

On the other hand, Justice Neela Gokhale upheld the rule, holding that it was not in violation of the Constitution. She reasoned that the rule provided sufficient safeguards, such as the possibility of issuing disclaimers and access to grievance redressal mechanisms. Furthermore, she found that the rule did not unduly infringe upon the rights to free speech or equality, as it served a legitimate aim of preventing the spread of misinformation regarding government business.

  • Interim Relief and Proceedings Before the Supreme Court: The Fact Check Unit’s (FCU) formation was stayed by the Supreme Court pending the resolution of this case. The petitioners argued that the government’s notification of the FCU during the pendency of the writ petitions violated the interim relief granted earlier.
  • Submissions by Petitioners: The petitioners contended that the rule created a chilling effect on free speech by making intermediaries responsible for removing content deemed false by the FCU without judicial oversight. They also argued that the rule discriminated by only targeting content related to the Central Government.
  • Submissions by Union of India: The government argued that the rule was necessary to curb the spread of false information regarding government business, which could harm public interest. They emphasized that the rule was proportional and that intermediaries retained the option of issuing disclaimers rather than removing content.

 

Observations of the Court

Justice Patel emphasized that any restriction on freedom of speech must be reasonable and justifiable under Article 19(2). Drawing on the precedent set in Minerva Mills v. Union of India, the Court observed that legislative actions limiting fundamental rights must conform to the boundaries set by Articles 19(2) to 19(6). The Court held that the Amendment contradicted the Government’s stance in Kaushal Kishore v. State of Uttar Pradesh and Ors., where the Government had argued that Articles 19(2) and 19(6) were exhaustive, and any alterations would require a legislative amendment. Furthermore, the Amendment failed to meet the legal standards outlined in Shreya Singhal v. Union of India.

Justice Patel relied on the Shreya Singhal judgment to outline the principles governing freedom of speech, the need for clear legislative guidelines, and the dangers of vagueness and overbreadth. He stated that the definition of “information” under the Information Technology Act was broad and could not be limited by judicial intervention. Thus, clear guidelines were necessary to avoid arbitrary restrictions on speech.

The Court found that distinguishing between content related to the “business of the Central Government” and other information constituted impermissible class legislation under Article 14. Referring to State of Rajasthan v. Mukan Chand and Ors., the Court stated that the Central Government does not constitute a separate class deserving of preferential treatment.

The establishment of an FCU by the Government to determine the “truth” of information about its business raised concerns about its objectivity. The Court questioned the lack of procedural safeguards and transparency in the FCU’s operations, particularly the absence of principles from the Evidence Act, 1872. Justice Patel asked, “Quis custodiet ipsos custodes?”—”Who watches the watchers?”—highlighting the lack of oversight for the FCU. The Court also noted that existing mechanisms, such as the Press Information Bureau (PIB), already handled misinformation related to government policies, rendering the FCU unnecessary.

Justice Patel further applied the five-fold test for determining the constitutionality of legislation as laid out in Gujarat Mazdoor Sabha and Anr. v. State of Gujarat. He concluded that the Amendment failed all five tests. Additionally, the undefined scope of “business of the Government” meant the Amendment could not be justified under Article 73(1)(a).

 

Conclusion

Justice Patel’s judgment placed significant weight on progressive rulings such as Bennet Coleman, Shreya Singhal, and Minerva Mills, underscoring the necessity for clarity in laws that regulate speech. He emphasized that natural justice must be respected when deciding the truthfulness of information about government activities.

The judgment also considered the inherent subjectivity in determining the “truth” of published content. Justice Patel noted that the terms “fake, false, or misleading” lacked objective criteria, and that any classification would be at the discretion of the FCU members.

Significantly, the Court extended the application of Article 14 to the realm of information, holding that information about government affairs cannot be treated differently from other information.

While the Amendment was struck down, the Court did recognize the need for shared responsibility in ensuring the proper use of information dissemination platforms. Justice Patel stressed that dissent and disagreement are essential in a democracy and should not be suppressed through regulations that fall outside the scope of Article 19(2). The judgment highlights the importance of protecting free speech in the digital age, reminding the Government that regulations infringing on constitutional rights must be precise, justified, and lawful.