In January 2024, a division bench of the Bombay High Court consisting of Justice G. S. Patel and Justice Neela Ghokale (the "Division Bench") pronounced a split verdict in the case of Kunal Kamra v. Union of India & Ors. In the said matter, the constitutional validity of the amendments made to Rule 3(1)(b)(v)of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the "Rules") in 2023 (the "Amendment") was challenged.
The Amendment grants authority to the Central Government to establish Fact-Checking Units ("FCU") to detect any 'fake, false, or misleading' information relating to 'the business of the Central Government' on intermediary platforms. The Amendment was challenged by the Kunal Kamra, Editors Guild of India, and Association of Indian Magazines (the "Petitioners") on the grounds that it violates Articles 14, 19(1)(a), and 19(1)(g) of the Constitution of India (the "Constitution") and is ultra vires Section 79 of the Information Technology Act, 2000 (the "Act").
The Petitioners contended that the Amendment violates the principles of natural justice. They argued that the lack of definitions for the terms 'fake', 'false', 'misleading', and 'business of the Central Government' renders the Amendment vague and broad. The Petitioners also asserted that the amendment made to Rule 3(1)(b)(v) of the Rules and the threat of losing safe harbour protection has a chilling effect. Furthermore, they argued that the scope of the restrictions in Article 19(2) cannot be expanded through delegated legislation.
The Division Bench delivered a split verdict, wherein Justice Ghokale upheld the Amendment while Justice Patel struck it down, stating that the Amendment was violative of the Constitution and ultra vires the Act.
Subsequently, the Chief Justice of Bombay, Justice DK Upadhyay, appointed Justice AS Chandurkar to adjudicate upon the point of difference in the split verdict of the Division Bench. Before Justice Chandurkar, the Petitioners argued that empowering the Central Government to form FCUs was intended to impose media censorship, as the rule permits the Central Government to determine the truthfulness of its own business. Conversely, on behalf of the Union of India, it was submitted that intermediaries had the option of putting a disclaimer on any information found to be fake, false, or misleading as regards the business of the Central Government, allowing them to enjoy the safe harbour provisions under the Act. Furthermore, it was argued that the Amendment satisfies the test of proportionality and that Article 19(1)(a) also guarantees the right to have correct and filtered information.
In adjudicating the points of difference in the Division Bench's judgment, Justice Chandurkar relied on the judgment of Kaushal Kishor vs. State of Uttar Pradesh and Ors1, in which it was held that the grounds allowing restrictions on free speech are exhaustive under Article 19(2) and that additional restrictions not found within the Article cannot be imposed on the exercise of the right conferred by Article 19(1)(a) upon any individual. It was thus held that under the right to freedom of speech and expression, there is no right to truth, nor any responsibility conferred on the state to ensure that citizens are only entitled to non-fake, non-false, or non-misleading information.
Additionally, Justice Chandurkar determined that the Amendment was violative of Article 19(1)(g), as the Central Government aims solely to engage in determining which information is fake, false, or misleading in digital form and has not established any rules for a similar exercise in print form. Justice Chandurkar also held that by being empowered to constitute the FCU, the Central Government acts as the arbiter of its own cause. On the interpretation of fake, false, or misleading information relating to the business of the Central Government, Justice Chandurkar noted that the rule has created substantive law that is beyond the parent statute, therefore, it is ultra vires the Act.
Conclusion
The Bombay High Court's ruling underscores the delicate balance between the government's role in combating misinformation and the fundamental rights enshrined in the Constitution. While the intention behind establishing FCU's may be to promote accurate information, the Court's decision highlights the potential for overreach and the need to safeguard individual liberties, particularly freedom of speech and expression. The ruling serves as a reminder that any measures aimed at regulating information must be clearly defined, limited in scope, and must not infringe upon the rights of citizens. This case sets a significant precedent regarding the intersection of digital media, regulation, and individual rights.
Footnotes
1 (2023) 4 SCC 1; 2023 INSC 4.
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