There's No "Right To The Truth": Bombay HC 'Third Judge' Opines That 2023 Amendment To Rule 3(1)(b)(v) IT Rules Is Unconstitutional

The Bombay High Court's 'third judge' opined that, Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 as amended in 2023 is unconstitutional and ultra vires the Information Technology Act, 2000 (IT Act).

Justice A.S. Chandurkar gave his opinion in a batch of writ petitions filed by stand-up comedian Kunal Kamra and others, challenging the validity of the aforesaid Rule. The case was placed before the Judge due to difference of opinion between Justice G.S. Patel and Justice Neela Gokhale.

The proceedings arose pursuant to the reference made under the provisions of Chapter-I Rule 7 of the Bombay High Court Appellate Side Rules, 1960 (BHCAS Rules) read with Section 98 of the Civil Procedure Code (CPC) and Clause 36 of the amended Letters Patent of the Bombay High Court so as to render an opinion on the points of difference recorded by the Judges constituting the Division Bench that heard the said batch of writ petitions.

The judge observed, “In my view, Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 is ultra vires the Act of 2000. Firstly, the amendment of 2023 has not been effected as required by Section 87(3) of the Act of 2000. It has not been shown that the proposed amendment was laid before each House of Parliament in the manner prescribed by Section 87(3) of the Act of 2000. Secondly, the amended Rule is not referable to Section 87(2)(z) as the said provision relates to the procedure and safeguards for blocking for access by the public under Section 69A(3). Section 87(2)(zg) refers to guidelines to be observed by intermediaries under Section 79(2) of the Act of 2000.”

The Bench agreed with the finding of Justice Patel that the impugned Rule creates substantive law beyond the Act of 2000 and that it does not relate to anything permissible either under Section 69A or Section 79 of the IT Act.

"I would agree with the view of Patel, J that under the right to freedom of speech and expression, there is no further “right to the truth” nor is it the responsibility of the State to ensure that the citizens are entitled only to “information” that was not fake or false or misleading as identified by the FCU. Rule 3(1)(b)(v) seeks to restrict the fundamental right guaranteed under Article 19(1)(a) by seeking to place restrictions that are not in consonance with Article 19(2) of the Constitution.”, the Judge added.

Senior Advocates Navroz Seervai and Darius Khambata represented the petitioners while Solicitor General Tushar Mehta represented the respondents. Senior Advocate Arvind Datar represented the applicants/intervenors.

Case Background -

The validity of Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 as amended in 2023 was the subject matter of challenge in the batch of writ petitions. The proceedings were decided by the Division Bench which had struck down the amendment to Rule 3(1)(b)(v) of the Rules of 2021 as being ultra vires the provisions of Articles 14, 19(1)(a) and 19(1)(g) of the Constitution of India, Section 79 of the IT Act, 2000, and also being in violation of the principles of natural justice. Justice Neela Gokhale upheld the validity of the said Rule holding the same to be not violative of Articles 14 and 19(1)(a) of the Constitution. She held that the said Rule was not ultra vires the provisions of the Act of 2000 nor was it contrary to the judgment of the Supreme Court in Shreya Singhal v. Union of India, 2015 INSC 257. It was also held that the exemption under Section 79 of the Act of 2000 would cease to operate only if the offensive information as provided in the said Rule affected any restriction under Article 19(2) of the Constitution of India.

On the other hand, Justice Patel struck down the amendment. He observed that the government's Fact Checking Unit becomes 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 petitioners, including stand-up comedian Kunal Kamra, the Editors Guild, the Association of Indian Magazines, and the News Broadcasters and Digital Association, challenged the constitutional validity of certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules in 2023. Kunal Kamra argued that the amendments, specifically Rules 3(i)(II)(A) and (C), which introduced fact-checking provisions, violated his freedom of speech and right to carry out his profession as a comedian. The media organizations contended that the rules subjected their work to government-controlled fact-checking, impacting their freedom of the press.

The Bench in view of the above background of the case, noted, “In my view, absence of any indication as regards the manner of identifying fake or false or misleading information and there being no guidelines whatsoever in that regard renders the expression “vague or false or misleading” to be vague and overbroad. It is material to note that each word is used in a disjunctive manner being separated by the word “or”. The word “misleading” can be subjected to various dimensions without any idea being given as to what it would connote. Since the amended Rule attempts to identify “information” in respect of any business of the Central Government as fake or false or misleading by the FCU, it is all the more necessary that the said expressions are either defined or explained to broadly give an idea of what could be termed to be fake or false or misleading.”

The Judge, therefore, endorsed the view expressed by Justice Patel that in absence of any guidelines under the Rules of 2021 as amended to indicate the scope and applicability of the expression “fake or false or misleading”, the impugned Rule is vague and overbroad rendering it liable to be struck down.

“The impugned Rule thus created a substantive law beyond the parent statute. No such rule making power could be exercised beyond the frame of Article 19(2) of the Constitution. He thus held that the Rule as amended was ultra vires the Act of 2000”, he said.

The Bench further noted that the amended Rule seeks to impose restrictions beyond those permissible under Article 19(2) of the Constitution and also suffers from manifest arbitrariness for not being in conformity with the IT Act on the principles laid down by the Constitution Bench in Association for Democratic Reforms and another v. Union of India and others 2024 INSC 113.

“In the present case the impugned Rule requires an intermediary not to host information that is patently fake or false or misleading which terms are undefined and doing so could result in deprivation of safe harbour. That there could be a “chilling effect” in view of an anticipated future impact of a provision has been considered in Shreya Singhal (supra)”, it remarked.

The Judge observed that when the totality of the challenge is considered and all grounds of attack are taken together, the fact that the impugned Rule also results in a chilling effect qua an intermediary would render it invalid.

“In my view, limiting the operation of the impugned Rule only to fake or false information, thereby ignoring the expression “misleading” which appears in Rule 3(1)(b)(v) would not be an exercise of reading down but would amount to “reading out” the said expression which has been held to be impermissible by the Supreme Court while dealing with a similar submission in Shreya Singhal (supra)”, he also enunciated.

Furthermore, the Bench remarked that the Rule as amended suffers from vagueness and overbreadth. It added that the impugned Rule cannot be saved by undertaking the exercise of “reading down” as suggested or by accepting the stand of the Union of India of the limited manner of its operation in the context only of “fake or false” information or for that matter putting up a disclaimer being sufficient in itself so as not to deprive the intermediary of any safe harbour.

“In my view, the challenge raised to the impugned Rule as not satisfying the proportionality test has to be upheld especially when it seeks to abridge fundamental rights guaranteed under Article 19(1)(a) and 19(1)(g) of the Constitution of India. Absence of sufficient safeguards against the abuse of the Rules that tend to interfere with the aforesaid fundamental rights are shown to be absent. … I therefore find that even on the ground of proportionality, the impugned Rule cannot be sustained as observed by Patel J”, the Judge observed.

The Bench, therefore, concluded by agreeing with the view expressed by Justice Patel that –

• Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 is violative of the provisions of Article 14, Article 19(1)(a) and Article 19(1)(g) of the Constitution.

• The said Rule as amended is ultra vires the Act of 2000.

• The expression “knowingly and intentionally” does not apply to the amended portion of Rule 3(1)(b)(v) in relation to the business of the Central Government.

• The expression “fake or false or misleading” in absence of it being defined is vague and overbroad.

• The impugned Rule cannot be saved either by reading it down or on the basis of any concession made in that regard of limiting its operation.

• The test of proportionality as laid down in Gujarat Mazdoor Sabha (supra) is not satisfied by the impugned Rule.

• Given the totality of the above, the impugned Rule also results in a chilling effect qua an intermediary.

Accordingly, the Judge placed the writ petitions before the Division Bench for being decided in accordance with the provisions of Chapter-I, Rule 7 of the BHCAS Rules and Clause 36 of the Letters Patent.

Cause Title- Kunal Kamra v. Union of India (Neutral Citation: 2024:BHC-OS:14371-DB)

Appearance:

Petitioners: Senior Advocates Navroz Seervai, Darius Khambata, Advocates Arti Raghavan, Meenaz Kakalia, Shahdan Farasat, Bimal Rajsekhar, Gautam Bhatia, and Aditi Saxena.

Respondents: Solicitor General Tushar Mehta, Additional Solicitor General (ASG) Devang Vyas, Advocates Rajat Nair, Gaurang Bhushan, Aman Mehta, Advait M. Sethana, D.P. Singh, Sheelang Shah, Savita Ganoo, Anusha Amin, Vaibhavi Choudhary, and Devanshu Gupta.

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