IT (Amendment) Rules, 2023 struck down by the Bombay High Court!

tl;dr

The final judgement from the Division Bench of the Bombay High Court has struck down the  Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023. Following a split verdict by a two-judge bench, the third referral judge — Justice Chandurkar – rendered an opinion following many weeks of oral argument by the Petitioners and the State. This amendment allowed the Central Government to form a Fact-Check Unit to identify online content regarding government business as “fake, false, or misleading”. IFF is providing legal assistance to the Association of Indian Magazines, one of the Petitioners in the matter.

Why should you care?

The Fact-Check Unit (“FCU”), established under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (“impugned Rules”), was empowered to evaluate the accuracy of online information and impose consequences for non-compliance with its determination. The expansive scope of terms like “fake, false, or misleading” and “business of the Central Government” granted the FCU considerable discretion in determining what constitutes misinformation related to government business, which could potentially include any action taken by a Central Government. Unchecked government control over information can stifle public discourse, limit access to diverse viewpoints, and undermine the freedoms of speech and expression essential for a vibrant democracy. Moreover, intermediaries that fail to remove content flagged by the FCU risked losing their safe harbour protections in the Information Technology Act, 2001 (“IT Act”). Safe harbour is crucial for preserving the independence of the digital press in India as well as the public’s right to freedom of speech and expression.

History of the case     

The Association of Indian Magazines, Kunal Kamra, and others challenged the constitutionality of the FCU provisions in the impugned Rules, before the Bombay High Court. In April 2023, the Union Government agreed not to constitute the FCU until the conclusion of the case, and the court accepted this as an effective stay against the amendment. However, on January 31, 2024, the Bombay High Court delivered a split verdict, with Justice Neela Gokhale upholding the validity of the impugned Rules holding the same as not violative of Articles 14 and 19(1)(a) of the Constitution of India,  and (now retired) Justice G.S. Patel striking down the impugned Rules as being ultra vires Articles 14, 19(1)(a) and 19(1)(g) of the Constitution of India, Section 79 of the IT Act and also being in violation of the principles of natural justice. 

Due to the impasse, the matter was referred to a third judge, Justice A.S. Chandurkar for opinion. On March 11, 2024, Justice Chandurkar rejected the plea for interim relief, allowing the Union Government to notify the Press Information Bureau (“PIB”) as the FCU on March 20, 2024.

Subsequently, the Petitioners moved the Supreme Court against Justice Chandurkar’s rejection of interim relief. The Supreme Court reversed the decision and stayed the FCU notification on April 10, 2024. The decision on the merits of the case was pending before Justice Chandurkar, in which regard the Petitioners began their arguments on April 15, 2024, and concluded on April 24, 2024. 

Following the Petitioners’ arguments, the Respondents – the Union of India, began their arguments on July 1, 2024, and continued on July 2, 2024. At the Solicitor General’s request, Justice Chandurkar adjourned the hearing until July 24 and July 25, 2024, to allow the Respondents to complete their submissions. The Respondents argued that the right to information under Article 19(1)(a) of the Constitution includes the right to accurate information, necessitating a balance between individual rights and societal interests, particularly in the context of electronic media. They defended the impugned Rules as a proportional response, requiring social media intermediaries (“SMI”) to merely add disclaimers about false content rather than mandating removal. The Respondents contended that the impugned Rules required SMIs to “resolve” complaints about false information, allowing them to either take down the content, add a disclaimer, or take no action and defend their choice in court. The “safe harbour” status was not automatically lost; it could be contested in court if an aggrieved party claimed the SMI had failed to comply. The Respondents countered claims of a chilling effect by noting that platforms like YouTube often retain flagged content, emphasising that the allegations of chilling effect must be substantiated with evidence. Furthermore, they clarified that “government business” is specifically defined in the Constitution and the Government of India Transaction of Business Rules, 1961, ensuring that only misinformation related to official affairs is flagged, thereby excluding subjective criticisms.

Subsequently, the Petitioners were allowed to provide rejoinder submissions from July 29, 2024, to August 1, 2024. Sr. Adv. Navroz Seervai, representing Kunal Kamra, made several key submissions. Firstly, he argued that there is no fundamental right to true and correct information under Article 19(1)(a) of the Indian Constitution, asserting that the limitations established by the eight exceptions in Article 19(2) cannot be expanded through legislation. Secondly, he contended that the impugned Rules compelled SMIs to automatically remove content flagged by the FCU without any discretion, which, combined with penalties under Rule 7 and Section 45 of the IT Act, undermined the judicial oversight established in Shreya Singhal v. Union of India and Ors., (2015) 5 SCC 1. This coercive framework could lead SMIs to excessively censor content due to profit motives and risk aversion, creating a chilling effect on free speech. He argued that this approach is disproportionate as it mandated takedowns without necessary procedural safeguards, failing the Supreme Court’s proportionality test. Lastly, he criticised the terms “fake, false, and misleading” and “business of the Central government” in the impugned Rules as overly broad and vague, susceptible to subjective interpretation, and assuming the infallibility of government-provided facts, which history shows is often unwarranted.

Sr. Adv. Arvind Datar, representing the News Broadcasters and Digital Association, argued that the impugned Rules should be struck down for failing to define crucial terms, violating established legal principles and Supreme Court precedents. He pointed out the inconsistency in the differential treatment of electronic versus print media and questioned the lowering of the threshold for actionable misinformation from ‘knowingly’, ‘intentionally’, and ‘patently’ false to merely fake, false, or misleading, which he claimed violates Article 14. He further asserted that the broad definition of “misleading” could suppress legitimate criticism and curtail freedom of speech.

Adv. Sharad Farasat argued that even the Supreme Court in its order dated March 21, 2024, while ruling that the notification of March 20, 2024, must be stayed recognised that the impugned Rules raised serious constitutional issues regarding freedom of speech. He further submitted that under the IT Act, information is clearly defined, and a law officer’s concession that information should be limited to facts, not opinions, cannot alter the statutory framework. Even with a restricted interpretation, the impugned Rules still unduly limited information flow and could lead to excessive government control, potentially extending similar powers to state governments.

Adv. Gautam Bhatia, appearing for the Association for Indian Magazines, contended that the impugned Rules undermined safe harbour protections by forcing SMIs to remove content to avoid losing legal immunity, which risked excessive censorship. He submitted that the measure infringed free speech by favouring government perspectives and was unconstitutional and disproportionate, as it failed to employ the least restrictive means to address misinformation.

After the conclusion of the Petitioners’ rejoinder submissions, Justice Chandurkar, at the request of the Solicitor General Tushar Mehta, allowed a short time to present sur-rejoinder submissions on August 8, 2024. The Respondents submitted that the FCU’s focus was solely on “fake” and “false” content, which is a necessary step to combat misinformation concerning the Central Government’s affairs. They emphasised that FCU would only identify whether the content is fake or false, and the SMIs would have three options: remove the content, publish a disclaimer, or take no action. If an SMI chose not to act, users could take legal action against the SMI, and the court would then decide whether the SMI should retain its safe harbour protections under Section 79 of the IT Act. The Respondents also dismissed concerns about a chilling effect as speculative. They contended that while Article 19(1)(a) guarantees free speech, regulation under Article 19(2) is necessary to address harmful misinformation.

Justice Chandurkar’s opinion 

Justice Chandurkar, as the third referral judge, delivered an opinion on September 20 2024, and struck down Rule 3(1)(b)(v) of the impugned Rules which called for the formation of a centralised FCU, citing violations of Articles 14, 19(1)(a) & (g), and 21 of the Constitution. The opinion was delivered on the nine points of difference between Justice Patel and Justice Gokhale’s opinion, which were as follows: 

1. Article 19(1)(a) and Article 19(2);
2. Violation of Article 19(1)(g) read with Article 19(6);
3. Violation of Article 14;
4. Knowingly and intentionally;
5. Expression “fake or false or misleading”;
6. The impugned Rule being ultra vires the Act of 2000;
7. Chilling effect of the amended Rule;
8. Saving the impugned Rule by reading it down;
9. Aspect of proportionality;

In his opinion, while agreeing with Justice G.S. Patel’s opinion, Justice Chandurkar stated that the right to freedom of speech and expression does not encompass a separate “right to the truth,” nor is it the State’s responsibility to ensure that citizens receive only non-fake, non-false, or non-misleading information. Justice Chandurkar criticised Rule 3(1)(b)(v) of the impugned Rules for attempting to restrict the fundamental right guaranteed under Article 19(1)(a) by imposing limitations that are inconsistent with Article 19(2) of the Constitution. Justice Chandurkar further noted the lack of rationale for assessing whether information about the Central Government is fake, false, or misleading in digital form while exempting print media from the same scrutiny, leading him to conclude that the impugned Rules violated Article 19(1)(g) and Article 14. Additionally, it was highlighted that Article 14 was also violated because the impugned Rules positioned the government as the final arbiter in its own matters, allowing the FCU to determine which information is fake, false, or misleading. The absence of clear guidelines for identifying such information rendered the terms “fake,” “false,” and “misleading” vague and overbroad, with the potential to create a chilling effect on free speech. Justice Chandurkar opined that the impugned Rules created substantive law beyond what is permissible under the IT Act, particularly in relation to Sections 69A and 79. It was also noted that there were insufficient safeguards against potential abuses of the impugned Rules which interfere with fundamental rights. Ultimately, Justice Chandurkar found that the validity of the impugned Rules could not be upheld through the proposed “reading down” approach, rejecting the Union of India’s argument that the impugned Rules represented the least restrictive means to combat the spread of “fake or false or misleading information.”

The FINAL verdict

With the third opinion rendered, the matter was placed before the Division Bench for judgment, comprising Justice Gokhale and Justice Gadkari (since Justice Patel has retired) of the Bombay High Court, for a final verdict on September 26, 2024. Since the majority opinions—those of Justice Patel and Justice Chandurkar—were in favour of striking down the impugned rules, the Division Bench pronounced its final verdict and struck down the amendments with a “majority view,” holding them unconstitutional. By striking down the impugned Rules, the Bombay High Court effectively reinforces that digital platforms and the content shared on them are subject to the same constitutional protections as traditional forms of speech. This ruling can help safeguard against laws that might impose disproportionate restrictions on online expression, ensuring that individuals retain the right to freely share their thoughts, opinions, and information in digital spaces.

As always, we are grateful to the Association for Indian Magazines for their support and confidence in us for taking up this important matter that goes to the root of online free speech for all Indians. We are grateful to Advocate Gautam Bhatia who led the arguments for AIM, and to the IFF Legal Team of Advocates Vrinda Bhandari, Abhinav Sekhri, Radhika Roy, and Gayatri Malhotra. We are also grateful to Senior Advocates Darius Khambata and Navroz Seervai for their leadership and guidance, and to Advocates Arti Raghavan and Meenaz Kakalia. 

IFF worked diligently and swiftly to respond to the potential threats posed by the impugned Rules to free speech and digital rights, tirelessly advocating for the protection of these fundamental freedoms. To support our vital work, consider making a donation today and help us continue our efforts to safeguard our rights in the digital age.

Important documents

1. Final judgement of the Division Bench dated September 26, 2024 [Link]
2. Justice Chandurkar’s opinion dated September 20, 2024 [Link]
3. Previous blog post titled, “Petitioners Conclude Arguments Before Third Judge in Case Challenging Constitutionality of Fact-Check Unit Conceptualised under IT (Amendment) Rules, 2023” [Link]
4. Supreme Court order dated March 21, 2024 [Link]

We would like to thank Advocate Gautam Bhatia for reviewing this blog.