Bombay High Court: In a petition by Kunal Kamra, Political Satirist/ Stand-up Comedian and others challenging the constitutional validity of Rule 3(i)(II)(A) and (C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023, which amend Rule 3(1)(b)(v) of the IT Rules 2021, as being violative of Articles 14, 19(1)(a) and (g) and 21 of the Constitution of India and Sections 79 and 87(2)(z) and (zg) of the Information Technology Act, 2000 (‘IT Act’), the Bench of GS Patel and Neela Gokhale, JJ. delivered a split verdict.
The petitioners were aggrieved by the vesting of power in a FCU of the Central Government to identify fake, false or misleading information and thereupon obliging the intermediary to make reasonable efforts to ensure that such information does not continue to remain as it were, on its platform. It was claimed that the said Rule vesting authority in a Fact Check Unit to identify the veracity of ‘information’ has a ‘chilling effect’ upon the freedom of speech and expression as guaranteed under Part 3 of the Constitution since the unbridled power vested in the FCU of the Central Government makes the Central Government an arbiter in its own cause and may result in the government compelling intermediaries to take down information that may be unfavorable to it.
2023 Amendment to IT Rules Violative of Fundamental Rights: Justice GS Patel
Justice Patel traced the legislative developments regarding IT Act, intermediaries, IT Rules, and the 2023 amendment. He further illuminated regarding the expressions ‘The Chilling Effect’ and ‘The Marketplace of Ideas’; vagueness and overbreadth; Fake, false or misleading: the faux true/false binary; ‘The Illusion of Choice’, while also discussing the provisions under Articles 14 and 19(1)(a) and 19(2) of the Constitution.
Justice Patel raised concern that “the 2023 amendment is not just too close to, but actually takes the form of, censorship of user content. There is no material difference between this and the newsprint cases of the 1990s…. What it does is to shift the responsibility for content accuracy from the creator or originator of the content to the service provider or intermediary, an entity that axiomatically has no control over the content at all. But an intermediary is the one that has safe harbour and, as a business entity, is regulated by the government in myriad ways. The impugned amendment makes the government’s chosen FCU the sole authority to decide what piece of user-content relating to the undefined and unknowable ‘business of the government’ is or is not fake, false or misleading. The lack of definition of these words: business of the government; fake; false; and misleading makes the amendment both vague and overbroad. Anything might be the business of the Government. Anything could be said to be ‘fake’. ‘Misleading’ is entirely subjective. And as to ‘truth’ and ‘falsity’, throughout recorded human history there are few, if any, absolute truths. Perceptions, perspectives, possibilities, probabilities — all will to a greater or lesser extent colour what one chooses to believe or hold or chooses not to believe or hold.”
Justice Patel cautioned and acknowledged the seriousness of the problem of digital fakes and explained the view that “The view of the FCU or the PIB that a particular piece of information relating to the business of the government is fake or false or misleading should not be allowed to be taken inviolate; most certainly, its publication cannot be subject to penalty and loss of immunity.” It was further added that “Who, after all, is to fact check the fact checker? Who is to say if the view of the FCU is fake, false or misleading?”
Justice Patel further raised a question that “Paradoxically, complaints of a grievous nature (pornography, child abuse, intellectual property violations) can only be taken down only after following a grievance redressal procedure; yet anything relating to the business of the Central Government can be ‘identified’ as fake, false or misleading by the FCU — and cannot be hosted.”
Justice Patel found the 2023 amendment to be beyond the scope of Shreya Singhal (supra) and viewed that it fails every test set out in the said decision for overbreadth and vagueness. Therefore, the said amendment was held ultra vires Articles 19(1)(a), 19(2), 19(1)(g), 19(6) and 14 of the Constitution and Section 79 of IT Act, violating principles of natural justice. The Court therefore stroke down the 2023 amendment to Rule 3(1)(b)(v) of IT Act Rules 2021.
No Violation of Fundamental Rights: Justice Neela Gokhale
Justice Gokhale perused Section 69-A, 79 and 87 of IT Act and highlighted the fact that Sections 66A and 69A along with 2009 Blocking Rules were challenged in Shreya Singhal v. Union of India, (2015) 5 SCC 1, while Section 79(3)(b) was also challenged to the extent of making the intermediary exercising judgment after receiving actual knowledge of any information being used to commit an unlawful act. The Supreme Court upheld Section 69A and the 2009 Blocking Rules as constitutionally valid and also read down Section 79(3)(b) to mean that an intermediary upon receiving actual knowledge from a Court or on being notified by the appropriate Government or its Agency that unlawful acts relatable to Article 19(2) of the Constitution are going to be committed then fails to expeditiously remove or disable access to such material.
Justice Gokhale explained that the exemption under Section 79 ceases to operate only if the offensive information as per the said Rule affects any restriction under Article 19(2) of the Constitution, hence neither ultra vires to IT Act nor to judgment in Shreya Singhal (supra). As against FCU comprising of government officials and violation of Article 14, the Court highlighted the user’s or aggrieved person’s right to approach grievance redressal mechanism and the appellate authority as contemplated under the Rules, making the competent court as the final arbiter. Justice Gokhale further commented that “The charter of the FCU, the extent of its authority, the manner of its functioning in ascertaining fake, false or misleading information, etc, is yet unknown. In case of any actual bias exhibited by the FCU, recourse to the courts of law is always open to the aggrieved person. Thus, a challenge to a potential abuse by the FCU on the basis of an apprehension is not maintainable and to that extent it is pre-mature.”
As for the nature of information to be targeted by FCU, Justice Gokhale explained that it is misinformation, patently untrue information, which the user knows to be fake, or false or misleading and shared with mala fide intent, and that political satire, political parody, political criticism, opinions, views, etc. does not form part of the offensive information. It was highlighted that “Truth is the opposite of false and truthfulness or falsity of information may be relative, however, a fact cannot be fake. Fake is something which is non-existent.” Therefore, the said petitions were dismissed.
[Kunal Kamra v. Union of India, Civil Writ Petition (L) No. 9792 of 2023, decided on 31-01-2024]
Advocates who appeared in this case :
For Petitioners/Applicant: Senior Advocate Navroz Seervai, Senior Advocate Darius Khambata, Advocate Arti Raghavan, Advocate Vrinda Bhandari, Advocate Gayatri Malhotra, Advocate Abhinav Sekhri, Advocate Tanmay Singh, Advocate Meenaz Kakalia, Advocate Gautam Bhatia, Advocate Aditi Saxena, Senior Advocate Arvind Datar, Advocate Nisha Bhambani, Advocate Rahul Unnikrishnan, Advocate Bharat Manghani, Advocate Gautam Jain
For Respondent: Solicitor General Tushar Mehta, Additional Solicitor General Devang Vyas, Advocate Rajat Nair, Advocate Gaurang Bhushan, Advocate DP Singh, Advocate Ankit Lohia, Additional Secretary Vikram Sahay
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