An Analysis of Kunal Kamra vs Union of India - Part II

On January 31, 2024, the Bombay High Court vide its judgment in Kunal Kamra v. Union of India and connected matters pronounced a split verdict wherein the constitutional validity of the 2023 amendment to Rule 3(1)(b), 3(1)(b)(v) and 7 (the “Amendment”) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the “Intermediary Rules”) was challenged.

The case was heard by the Division Bench consisting of Justice GS Patel and Justice Neela Ghokale. The judgment delivered by Justice G.S Patel struck down the Amendment, holding that it is ultra vires of Article 14, 19(1)(a), 19(2), 19(1)(g), 19(6) of the Constitution of India and Section 79 of the Act, whereas the judgment delivered by Justice Neela Ghokale upheld the Amendment.

The said Amendment, notified by the Central Government (the “CG”) on April 6, 2023 grants authority to the CG to set up a Fact Checking Unit (the “FCU”) tasked with detecting any ‘fake, false or misleading’ information related to ‘its businesses’ on online media platforms. This article summarises the verdict delivered by Justice GS Patel. 

Challenges to the Amendment

The Amendment was challenged by the petitioners primarily on the grounds of violation of Article 14, 19 (1)(a) and 19 (1)(g) along with it being ultra vires of Sections 79, 87(2)(z) and (z)(g) of the Information Technology Act, 2000 (the “Act”).

The petitioners contended that the amended Rule 3(1)(b)(v) read with Rule 7 of the Intermediary Rules causes a “chilling effect” by shifting the responsibility of user content from the content generator/user to the Intermediary/service provider. Rule 7 of the Intermediary Rules indirectly compels Intermediaries to adhere to the decisions of the FCU under Rule 3(1)(b)(v); as otherwise, the intermediaries find themselves without safeguards in relation to third-party content as prescribed under Section 79 of the Act. Further, the petitioners also argued that the CG has violated the principles of natural justice by setting up a government controlled FCU to determine the veracity of content posted by users touching/relating to the “business of the Central Government.”

Further, the petitioners also contended that the lack of clarity in defining terms such as "business of the government," "fake," "false," or "misleading" makes the Amendment vague and overbroad. Such vagueness can lead to indiscriminate application of the amended Rule. It was also pointed out that the standards established to determine the veracity of content which is “Business of the Central Government” and other content greatly differed. It was noted that under the Amendment, the FCU shall act as an arbiter of truth in case of all content that relates to Business of the Central Government and notably, the intention and awareness of the user posting such content did not hold any importance while considering whether such content was “fake, false or misleading." This is in stark contrast to other types of content, where the intention and knowledge of posting content is a determining factor in curtailing such content.

It was argued that the right to freedom of speech guaranteed under Article 19(1)(a) cannot be interpreted to mean the right to truth, especially when “true and accurate information” is to be ascertained by a mechanism devised by the CG. In order to substantiate their contention, the petitioners drew references from judicial precedents from both the Indian jurisprudence as well as the American jurisprudence and also from already established fact checking practices prevalent in print media.

Interestingly, it was also contended that any expansion of Article 19(2) could not be done by a delegated legislation or by Rules, and that the same could only be done through a constitutional amendment.

Apart from this, it is also interesting to note that, at present, there are over 17 petitions pending before various High Courts challenging the constitutional validity of the Intermediary Rules in whole. In two such challenges, protection against coercive action by the CG for non-implementation of the Intermediary Rules has also been granted to a few of the petitioners therein. Additionally, the CG has also filed a SLP (C) No. 11163 of 2023 for transferring of all such challenges to the apex court, and by way of an interim order, the proceedings before the High Courts have been stayed by the apex court.

Questions of Law

For brevity, the following questions of law sum up the main issues that were considered by the High Court.

a. Whether the Amendment which imposes restrictions on online content are in violation of the fundamental right guaranteed under Article 19(1)(a) and  19(1)(g) of the Indian Constitution?

b. Whether the Amendment violates Sections 79 and 87(2)(zg) of the Act?

c. Whether the Amendment infringes on the fundamental rights envisaged under Article 14 of the Indian Constitution?

d. Whether the CG has the authority to impose prior restraints on the publication of material that may be defamatory of the State or its officials?

e. Whether the Amendment meets the tests of reasonableness, necessity, and proportionality in restricting the fundamental right to freedom of speech and expression?

Observations of the Court (Justice GS Patel's opinion)

The Court reiterated and emphasized that any restriction on freedom of speech and expression must be reasonable, justifiable, and fall within the permissible limits of Article 19(2) of the Indian Constitution. In this regard, the Court drew inference from Minerva Mills v. Union of India, to observe that any legislation that curtails a fundamental right must be confined to the permissible limits within Articles 19(2) to 19(6). It was also held that the Amendment was contrary to the Central Government’s (the “CG”) stand in Kaushal Kishore v. State of Uttar Pradesh and Ors. wherein, the CG had contended that the restrictions under Articles 19(2) and 19 (6) were exhaustive, and that any addition/alteration to the same have to come through a legislative process. Further, it was also held that the Amendment failed every test laid down in the landmark decision of Shreya Singhal v. Union of India.

The Court has relied on Shreya Singhal to cull out the principles regarding the scope and limitations of freedom of speech and expression, the need for clear principles and guidelines in imposing restrictions, and the concepts of vagueness and overbreadth in legislation. Taking these principles into account, the Court observed that the definition of 'information' in the Act is expansive and inclusive, and the same cannot be read down through judicial intervention. Accordingly, the Court highlighted the need for clear principles and guidelines in the concerned legislations to avoid arbitrary and vague restrictions on freedom of speech and expression.

The Court observed that the distinction drawn between online content posted with regard to the ‘business of the Government’ and any other information does not form a valid classification. It was held that separating information in relation to the business of the Central Government for preferential treatment is tantamount to class legislation, which is an impermissible classification under Article 14 or 19. The Court while referring to State of Rajasthan v. Mukan Chand and Ors, observed that the CG in itself does not constitute a separate class to call for such special treatment, and that any classification under a statute must bear a rational nexus to its statutory objective.

The Court expressed its view that the Fact Checking Unit (the “FCU”) which is being constituted for determining the ‘truth’ of information published with respect to the business of the government, are being set up by the government itself and this in turn clearly casts a cloud of doubt on the credibility of the said fact checking institution. The Court while highlighting the absence of established definitive principles envisaged under the Evidence Act, 1872, also questioned the capricious parameters on the basis of which the FCUs determine whether information is fake, false or misleading. In this regard, the Court posed the question “Quis custodiet Ipsos custodes?” which in this case refers to which fact checker in turn will assess the functioning of the FCU. The Court also observed that the procedure to be followed, material to be relied on or any guidelines regarding the functioning of the FCU was not made available along with the Amendment. The Court took special notice of the fact that no procedure for hearing before the FCU was prescribed under the Amendment before online content would be termed as “fake, false or misleading” by the FCU. The lack of clarity in the procedure of the FCU along with no provision for a hearing set up under the Amendment, has been held to be violative of the settled principles of natural justice. The Court also noted that the Press Information Bureau (“PIB”), which has a mechanism in place to weed out false or misleading information with regard to government policies is sufficient, and a separate FCU was not necessary to decide the veracity of the information relating to the business of the Government on online platforms.

The Court also referred to the five-fold test laid down in Gujarat Mazdoor Sabha and Anr v. State of Gujarat, which prescribes five conditions to be fulfilled by a legislation to be not termed as violative and infringing upon fundamental rights. The Court held that the Amendment fails to satisfy all five tests prescribed therein. Further, regarding the power of the Executive under Article 73, the Court held that since the “business of the Government” has not been defined, the Amendment cannot be protected under Article 73(1)(a).

Conclusion and Analysis

The judgement delivered by Justice GS Patel has placed paramount reliance on progressive judgements like Bennet Coleman, Shreya Singhal and Minerva Mills, to arrive at a conclusion that legislations pertaining to the control of free speech cannot be unfettered and ambiguous. The Court vide this judgement has placed the principles of natural justice on a pedestal while analysing the role of the FCU in ascertaining the truth of the contents which relates to the business of the government.

The judgment also delves upon the subjectivity of ‘truth’ and ponders whether it is possible to objectively ascertain the truth of information published. It has observed that information/content that could be termed as ‘fake, false or misleading’ by the FCU does not have any parameters, and solely depends upon the discretion of the constituents of the FCU.

On a novel note, in this judgment, the Court has extended the applicability of equal treatment under Article 14 to also include information. It was observed that information with regard to the business of the government could not be placed on a high horse and have a dedicated mechanism to cull out fake or false information when information with regard to other individuals is not provided with such privileges and mechanisms.

Although the Amendment has been struck down by the Hon’ble Court, it does not shy away from welcoming the idea that there needs to be collective responsibility in ensuring that the ability to disseminate information on the internet or public domain is not misused. In this backdrop, the Court has also observed that dissent and disagreement being a vital part of a democratic state, should not be stifled by regulations which are not within the contours of the limits prescribed under Article 19(2). Therefore, the judgment clearly emphasizes on the importance of protecting and upholding fundamental rights in the digital age, and also serves as a reminder to the Government that legislations regulating freedom of speech and expression cannot be capricious, ambiguous and in violation of fundamental rights guaranteed under the Constitution.