Authored by Naman Pratap Singh and Anshuman Mishra, 3rd-year law students at Faculty of Law, Jamia Millia Islamia, New Delhi
Introduction
Recently, Justice Atul Chandurkar ruled that the notification under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 violated Articles 14 and 19 of the Indian Constitution. He struck down the IT Amendment Rules, 2023, which allowed the government to establish a Fact Check Unit (FCU) with powers to notify social media platforms about misinformation and to take down content.
The articles explore the rationale of the judgement and analyse the future prospects of litigation involving freedom of speech and censorship. The idea of individual freedom and free speech have also been contemplated with the need to regulate healthy dialogue in a democracy.
What the Case is All About?
Kunal Kamra, along with several other petitioners, challenged the 2023 notification under IT Rules, 2021 before the Bombay High Court claiming the amended rules violate Articles 14 and 19. The central issue was a Ministry of Electronics and Information Technology notification which notified amendments to Information Technology (Digital Media Ethics Code) Rules, 2021 under section 87(2) (zg) of the Information Technology Act, 2000.
Petitioners argued that the amendments do not provide for any grievance redressal mechanism or opportunity for intermediaries to appeal against content takedowns by the FCU which violates the principles of natural justice and makes the government the "sole arbiter" without judicial oversight. The amendments exceeded the scope of the IT Act of 2000 and breached the Supreme Court mandate in Shreya Singhal[1], which limited governmental regulation of online expression. The government's stance was centred on ensuring order and accuracy in information dissemination while affirming its authority to regulate content connected to its activities without violating constitutional rights.
In Search of Clarity: Split Verdict
In the previous split verdict, conflicting views were expressed by Justice Patel and Justice Gokhale. Justice Patel affirmed the government notice ultra vires, deeming it violative of Article 14, 19 and Section 79 of the IT Act. He criticised the arbitrary nature of terminology such as "fake" and "misleading," cautioning against their misuse. Justice Gupta, on the other hand, sustained the notice, emphasising the need for fact-checking in combating disinformation in government affairs, claiming that it enhances public trust while not infringing on basic rights, as long as proper safeguards exist. This is in clear contradiction with Shreya Singhal v. Union of India, which mandates clear guidelines when imposing restrictions upon freedom of speech and expression. Meanwhile, the petitioners moved to the Supreme Court, claiming that the recent modification had a chilling impact on fundamental rights. Despite the Union Government notifying the creation of an FCU, the Supreme Court stayed its operations until the Bombay High Court ruled on the matter.
Recent Order
In the recent judgement by Justice Chandurkar, it has been held that the amended rules are ultra vires of the IT Act 2000 and observed that phrases "fake, false, or misleading" are ambiguous and overbroad, and cannot be resolved by interpretation or concessions. The need for a new Fact Checking Unit was questioned, as the Press Information Bureau already handled fact-checking. Concerns were also expressed regarding the lack of comparable supervision systems for alternative media sources. It was argued that interpretations of 'business of the government' might differ substantially. It was further argued that such disparities violate the right to practise any profession under Article 19(1)(g) of the Constitution. Justice Chandurkar, agreeing with this view, emphasised that there is no “right to truth”. The state has no obligation to guarantee that citizens only receive "truthful" information, nor does it have the authority to determine what is false or misleading.
Where Does It Lead Us?
It is essential to monitor information on social platforms with reasonable restrictions. Any unilateral authority requiring immediate action without allowing intermediaries to be heard is a futile attempt to validate information on social platforms. Removing content labelled as "fake, false, or misleading" by the FCU is ineffective and can be misleading owing to the subjectivity at play. There certainly lurks a threat that the government may selectively remove or flag social media posts via a fact-checking unit. Moreover, the state should not have unrestricted power to determine what is acceptable, nor can it assert itself as the sole custodian of the public trust. Such absolute control is completely impractical.
Democracy thrives on free debate and public engagement, relying on citizens' participation in communal issues. Public discourse is essential in distinguishing democracy from other forms of government, as was maintained in S. Rangarajan v. P Jagjivan Ram [2]. Monitoring the online exchange of information on various social platforms is indeed a Catch-22 situation where restriction and indifference could be equally detrimental. The context of information needs much consideration while deciding on its authenticity, which may be relative. Loss of safe harbour protection as envisaged under Section 79 of the IT Act, on account of non-compliance with Rule 3 of the IT Rules, would cause intermediaries to not toe the line and duly follow the diktats of the FCU. In Shreya Singhal case, it was clearly established that only in pursuance of a government order, the intermediaries can be expected to block contents online. The IT Amendment Rules, by threatening the safe harbour protection of intermediaries on failing to block content at the government's request within a limited time frame, is in clear contradiction with the Shreya Singhal judgment as was also held in Justice Chandurkar's judgement.
Censoring content simply because it may threaten the government's narrative/perspective sets a worrying precedent. This has the potential to stifle genuine disagreement and undermine the fundamental ideals of a free and open society. It is important to contemplate whether speech can be curtailed for its inflammatory potential. Should restrictions on speech, including the removal of fake news, be strictly grounded in Article 19(2) or can transgress much beyond it? There is a pressing need to reconsider how governments handle disinformation, even when courts do not mandate a right to truth or hold the state liability. It is crucial to consider the democracy we envision—one in which we can recognise harmful content and mould public opinion responsibly or where democratic ideals are preyed on by sheer indifference.
The objectives of IT Act, 2000 do not align with practices of establishment of FCU and content takedowns. However, many states have established such units under the Indian Penal Code, raising questions regarding their legal authority. Without clear legal rules, there is tremendous doubt about the scope of these powers, as well as the requisite supervision and accountability procedures. Recent UP Digital Media Policy 2024 marches in an altogether different direction. Clause 7(2) allows the state government extensive authority to identify any online post as "anti-social" or "anti-national" if it "paints the government in a bad light" or "create with mala fide intent." The policy provides for monthly payments of up to ₹8 lakh to ‘empanelled influencers’ to promote government projects. This raises important questions about who determines what constitutes "anti-national" sentiment and whether mere criticism of the government can be classified as such. The policy’s objective and the state of conformity it expects is apparent and alarming. Devising strong compartmentalisation on criteria of what qualifies as truthful, can never result in an efficient discourse on the issue.
Conclusion
The Puttaswamy test for determining the proportionality of state action involves four main criteria: a legitimate state aim, suitability, necessity and balance (proportionality strictly speaking).[3] While the IT amendment rules may coincide with legitimate aims and proportionality stricto sensu, there is still a need for clarity on suitability and necessity. Existing fact-checking procedures already handle these issues and also, the rules raise serious concerns about fairness and due process. Justice Chandurkar's decision underscores the vitality of judicial oversight in limiting arbitrary government intervention in content regulation. The future of such litigation must focus on interpreting the broader legal implications, moving beyond the opposition to censorship disguised as fact-checking. It should also explore alternative methods for implementing fact-checking functions that align with constitutional mandates. Ultimately, the evolving landscape of freedom of speech and expression in India requires careful consideration of competing interests, including the need for regulatory frameworks that uphold democratic principles while combating the menace of disinformation.
References
[1] Shreya Singhal v. Union of India AIR 2015 SC 1523.
[2] S. Rangarajan v. P. Jagjivan Ram 1989 SCR (2) 204.
[3] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.