Case Summary and Outcome

The Bombay High Court (2:1) held that Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2024, is unconstitutional. The case involved a public interest litigation by comedian Kunal Kamra, along with several organizations, editors, journalists, and publication houses, challenging the said rule, which empowered a government-established fact-checking unit to identify and flag or remove social media content related to government affairs as fake, false, or misleading under Rule 7 of the Ethics Code. The petitioners contended that the rule infringes on freedom of expression under Article 19(1)(a), creates a chilling effect on speech, and lacks clear standards, leading to arbitrary censorship. The Court issued a split verdict: Justice Patel found the rule unconstitutional, stating that it contravenes Articles 14, 19(1)(a), and 19(1)(g) by placing an undue burden on digital intermediaries, which incentivizes self-censorship and limits the open marketplace of ideas essential for democracy. He highlighted that the rule’s lack of procedural safeguards allows the FCU, a government-appointed body, to act without checks, essentially making the government both prosecutor and judge. On the other hand, Justice Dr. Neela Gokhale upheld the rule’s validity, asserting that it is a proportionate restriction designed to curb misinformation, consistent with Article 19(2) and that the intermediaries retain choices such as disclaimers to meet compliance. Gokhale J. argued that the rule includes sufficient safeguards and aligns with past judgments upholding restrictions for public order. Later in a tier-breaker decision, Justice Chandurkar agreed with Patel J. that the Rule violated Articles 14, 19(1)(a), and 19(1)(g) of the Constitution and exceeded the authority granted by the IT Act of 2000. He found that the rule’s vagueness, lack of procedural safeguards, and discriminatory application to digital media unduly burden freedom of expression and create a chilling effect, making it impermissibly broad and arbitrary.

Note: An appeal against the Bombay High Court’s earlier split-verdict decision is still pending before the Supreme Court of India.

Facts

On April 6, 2023, the Ministry of Electronics and Information Technology of the Government of India introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Rules 2023), mandating social media platforms like Facebook and Twitter to remove any news regarding the “business of the Central Government” deemed “fake, false, or misleading” by a government-established fact-checking unit.

In April 2023, an observational comedian, Kunal Kamra filed a Writ Petition before the Bombay High Court, arguing that the establishment of a fact-checking unit by the Central Government violates Section 79 of the Information Technology Act, 2000 (IT Act). Section 79 provides a safe harbor for social media intermediaries, protecting them from liability for user-generated content. It requires intermediaries to remove content only when notified by the Union Government under Section 79(3). The Petitioner contended that under Rule 7 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, intermediaries could lose this safe harbor protection if they fail to comply with the IT Rules. 

In June 2023, several other organizations, including the Editors Guild of India, the Association of Indian Magazines, and the News Broadcasters and Digital Association, also filed challenges against the rule. All the petitioners were clubbed together and adjudicated by the Bombay High Court Division Bench. 

On January 31st, 2024, Justices Gautam Patel and Dr Neela Gokhale delivered a split verdict. Patel J. held that the IT Rules 2023 are unconstitutional, while Justice Gokhale upheld their constitutional validity. Subsequently, in February 2024, the Chief Justice of the Bombay High Court appointed Justice A.S. Chandrukar as the third judge to break the tie regarding the split verdict. Consequently, the Petitioners approached the Bombay High Court praying for the interim stay of the establishment of the FCU, which the High Court did not grant in its order dated 11th March 2024.  On appeal before the Supreme Court of India, the establishment of the FCU was stayed by an order of the Supreme Court dated 21st March 2024 till the third judge’s opinion regarding the constitutional challenge was delivered.

Decision Overview

Justice Atul Chandurkar, Justice Gautam Patel, and Justice Dr. Neela Gokhale each delivered separate opinions. While Justices Chandurkar and Patel, in their individual opinions, declared the IT Rules 2023 unconstitutional, Gokhale J. in her opinion (now dissent), upheld the validity of the Rules in her sole opinion. The primary question before the High Court was to determine whether the IT Rules violate the freedom of expression protected under Article 19 of the Constitution of India along with other rights. 

The Petitioner contended that Rule 3(1)(b)(v) of the IT Rules, 2021, as amended in 2023, violates the right to freedom of speech and expression under Article 19(1)(a) of the Constitution. [para. 49, Patel J. and para. 14, Chandurkar J.] They contended that the rule allows the government-controlled ‘fact-check unit’ (FCU) to unilaterally identify user content as ‘fake or false or misleading’ regarding the ‘business of the Central Government’, forcing intermediaries to take down such content or risk losing safe harbor protection under Rule 7. [para. 49, Patel J.] The Petitioners, who are users rather than intermediaries, asserted that they are subjected to a chilling effect due to the vague and expansive definitions employed in these amendments. They contended that the amendments shift liability from users to intermediaries, compelling intermediaries to remove user-generated content deemed ‘fake or false or misleading” by a government-controlled FCU. This shift undermines user rights and creates a scenario where intermediaries are incentivized to censor content preemptively to avoid penalties, thus stifling free expression and the marketplace of ideas. [para. 49, Patel J. and para. 14, Chandurkar J.]

Furthermore, the Petitioners contended that the term “business of the Central Government” is overly broad and lacks clarity, rendering it unconstitutional. They emphasized that this vagueness fails to adhere to the restrictions outlined in Article 19(2), which delineates permissible limitations on freedom of speech. The Petitioners contended that such an expansion is reminiscent of past unsuccessful attempts by the Union of India to impose similar restrictions under Section 66-A of the Act of 2000. [para 12, Chandurkar J.]  The Petitioners also raised concerns regarding natural justice, asserting that the FCU’s role as both judge and executor creates a conflict of interest. They highlighted that individuals whose content may be classified as misleading are not afforded an opportunity for a fair hearing or an explanation for the FCU’s determinations. This lack of due process violates established principles of natural justice and could lead to arbitrary enforcement of rules against users without proper recourse. [para. 13, Chandurkar J.]

Moreover, the Petitioner contended that the amended Rule violates Article 14 by imposing restrictions selectively on digital media while exempting print media from similar scrutiny, thereby constituting class legislation without any rational basis. [para 14, Chandurkar J.] The Petitioners maintained that the amended Rule not only infringes upon their constitutional rights but also lacks a legal foundation within existing statutes. They contended that there is no provision in the Act empowering such amendments and that existing frameworks for addressing misinformation—like those established under prior rules—are sufficient. The Petitioners called for a thorough judicial review and quashing of the amended Rule, asserting it poses a grave threat to democratic principles and freedom of expression in India. [para 17, Chandurkar J.]

The Union of Government contended that the amended Rule 3(1)(b)(v) was valid and necessary to combat the spread of misinformation regarding the business of the Central Government. It argued that the amendment aimed to ensure that citizens were informed about accurate facts, thereby protecting the integrity of governmental communication. The government emphasized that the minimum intrusive test was applied during the rule’s formulation, adhering to the principle of proportionality. It highlighted that intermediaries had the option to issue disclaimers for any content deemed fake or misleading, allowing them to maintain their safe harbor status under existing laws. The Union maintained that the right to access correct information was a fundamental aspect of free speech as protected under Article 19(1)(a) of the Constitution, asserting that misinformation could not be shielded by constitutional protections. [para. 50, Patel J. and para. 21, Chandurkar J.] 

Furthermore, the Union argued that the establishment of an FCU was justified as it would help identify and address false information related to government activities. It stressed that while the FCU would play a role in this process, it did not eliminate individuals’ rights to seek legal recourse if they disagreed with its determinations. The government noted that consultations with various intermediaries had occurred before implementing these rules, ensuring clarity on what constituted “the business of the Central Government” as outlined in existing regulations. The Union dismissed concerns about a chilling effect from the amended rule, asserting that there was no evidence suggesting such an impact had occurred since its introduction and that safeguards were in place to prevent misuse. [para. 50, Patel J. and para. 21, Chandurkar J.]

Opinion of Justice Dr. Neela Gokhale

• On the issue of automatic deprivation of safe harbor for intermediaries on grounds beyond Article 19(2) of the Constitution

Gokhale J. upheld the constitutionality of the impugned Rule 3(1)(b)(v) of the IT Rules, 2021, which mandated intermediaries to take “reasonable efforts” to address false or misleading information concerning government business, stating that the Rule was not ultra vires the Parent Act. Gokhale J. emphasized that intermediaries were not subjected to an excessive burden of action and were only required to act as they would in cases involving individual users. The amendment to the Rule, constituting the FCU for reporting false information, was designed for the convenience of intermediaries, helping them identify misleading content. Gokhale J. found no mandatory ‘take-down’ requirement, interpreting the Rule to allow for alternative actions like disclaimers, which still qualified as ‘reasonable efforts’. [para 16-17, Gokhale J.]

Gokhale J. referenced to Shreya Singhal v. Union of India and State of Tamil Nadu v. P. Krishnamurthy, to held that the Rule is constitutional. She referred to Shreya Singhal to clarify that intermediaries would only lose “safe harbour” protections if they failed to comply with procedures under Article 19(2) of the Constitution. [para 20-21, Gokhale J.] Gokhale J. further stated that the Rule was in line with the blocking provisions of Section 69A, as upheld in Union of India v. Agij Promotion of Nineteenonea Media Pvt Ltd, which allowed blocking content under specific grounds such as sovereignty, public order, or decency. Gokhale J. concluded that the Rule did not suffer from manifest arbitrariness and satisfied the tests laid down in P. Krishnamurthy. [para 23, Gokhale J.]

• On the issue of making the Central Government an arbiter in its own cause.

Gokhale J. addressed the petitioners’ concern that the government was acting as both the prosecutor and judge through the creation of the FCU, which would allegedly have the power to determine whether the information was false or misleading. Gokhale J. clarified that the FCU’s role was limited to identifying information concerning government business that may be false, fake, or misleading. The intermediary would only lose immunity if it failed to make “reasonable efforts” to prevent the spread of such information, and there were no direct penal consequences for either the intermediary or the user. Additionally, the final decision regarding the validity of such information would rest with a court of law, not the FCU, thereby preserving due process. [para. 24, Gokhale J.]

Regarding the FCU’s alleged bias, Gokhale J. held that the mere fact that it would be comprised of government-appointed officials did not automatically make it biased. The FCU members, being knowledgeable about government policies and having access to relevant data, were necessary to fulfill their role of identifying misinformation. Relying on the precedent set in Crawford Bayley and Co. v. Union of India, Gokhale J. emphasized that bias could not be presumed merely based on government appointment; personal bias or motivation would need to be proven. [paras. 25-26, Gokhale J.] Lastly, Gokhale J. reiterated that the FCU had not yet been constituted, and any challenge based on apprehension of bias was premature. An aggrieved party could always seek redress through the courts or the grievance redressal mechanism of the intermediary, thus safeguarding constitutional rights under Article 14. [para. 27, Gokhale J.] 

• On the issue of loss of safe harbor for Intermediaries and its ‘Chilling Effect’ on the Free Speech of the ‘User’ 

Gokhale J. dismissed the Petitioner’s argument that the impugned Rule had a chilling effect on free speech, including political satire, parody, criticism, and opinions. It emphasized that the Rule did not directly penalize intermediaries or users and provided adequate safeguards, including a grievance redressal mechanism and respect for constitutional rights. Unlike Section 66A of the IT Act, which was struck down in Shreya Singhal v. Union of India, the Rule did not impose automatic penalties without judicial recourse. The Court clarified that intermediaries were only liable if they failed to comply with due diligence requirements under Section 79 of the IT Act, and that the safe harbor provision remained unless a court or government agency identified unlawful content. [paras 29-30, 33, Gokhale J.]

The Court also noted that the Rule targeted only misinformation that was knowingly and intentionally spread with malice, excluding political satire or criticism from its scope. The Petitioners’ fear of intermediary action due to potential loss of immunity was deemed premature and unfounded, as intermediaries had requested government involvement in fact-checking. While referring to Shreya Singhal, the Court reiterated that any challenge to the fact-checking process could be addressed through existing legal mechanisms, and users had recourse through the intermediary’s redressal system or courts if their content was wrongfully flagged. [paras 31-34, 37, Gokhale J.]

• On the issue of the terms ‘fake’, ‘false’ ‘misleading’, and ‘business of the Government’ 

Gokhale J. rejected the petitioners’ argument that the terms “fake, false or misleading” and “business of the Government” in the impugned Rule were overly broad and vague The Court clarified that the Rule did not target false information itself, but rather the intentional sharing of known false information without reasonable efforts to prevent its spread. It emphasized that intent was a crucial element for the Rule to apply. [para. 43, Gokhale J.] The Court also dismissed concerns about the vagueness of “business of the Government,” noting that this term appears in Article 77 of the Constitution. [para. 45-46, Gokhale J.] It noted that while the terms “fake,” “false,” and “misleading” were not explicitly defined in the impugned Rule, their ordinary meanings were clear and could be derived from established dictionaries. The Court concluded that these terms were not ambiguous when read in context and that the Rule’s focus on knowingly disseminating false information with malicious intent did not infringe upon freedom of expression or legitimate discourse. [para. 45-47, Gokhale J.] Thus, it upheld the validity of the Rule against challenges based on vagueness and over-breadth.

• On proportionality 

Gokhale J. held that the impugned Rule did not fail the test of proportionality. She recognized the fundamental importance of freedom of speech and expression in a democracy but emphasized that this right is subject to reasonable restrictions under Article 19(2) of the Constitution. [para. 52-53, Gokhale J.] In her opinion, Gokhale J. referred to Romesh Thapar v State of Madras, State of Madras v. V. G. Row, and Sakal Papers v. Union of India, to establish the principles governing legitimate restrictions on free speech. Moreover, Gokhale J. acknowledged the government’s legitimate concern about the spread of misinformation on social media platforms and its potential to harm public order and democratic processes. [paras 54-56, Gokhale J.] She referenced the Facebook v. Delhi Legislative Assembly case, which highlighted the need for accountability of social media platforms in controlling the spread of disruptive messages and hate speech. 

While Gokhale J. recognized the petitioners’ apprehensions as justified, she found that the Rule had a rational nexus to its objective of combating fake and misleading information [paras 58-59, Gokhale J.). She referred to S.P Gupta v. Union of India to emphasize citizens’ right to know about government actions but stressed that this knowledge must comprise authentic information. Gokhale J. concluded that the Rule could not be struck down merely based on concerns of potential abuse, as affected parties could always approach the courts if their fundamental rights were infringed. Gokhale J. found that there was no unconstitutionality in the impugned Rule and that it met the test of proportionality given the significant public interest in combating misinformation. [para 60, Gokhale J.]

Opinion of Justice Gautam Patel

• On the right to freedom of speech under Article 19

Patel J. affirmed that the right to freedom of speech and expression, as guaranteed under Article 19(1)(a) of the Indian Constitution, extends to online platforms and includes the right to disseminate information widely. [para 86,  Patel J.] He emphasizes that any restrictions on this right must strictly conform to the parameters set out in Article 19(2) and pass the test of reasonableness and proportionality. Patel J. relies heavily on the Supreme Court’s decisions in Shreya Singhal v Union of India, Anuradha Bhasin v Union of India, and KS Puttaswamy v Union of India to establish this framework. [paras. 86-87, Patel J.]

Applying these principles to the case at hand, Patel J. found that the impugned Rule, which requires intermediaries to block or take down content related to the Central Government’s business that the Fact Check Unit deems fake, false, or misleading, fails the proportionality test. He argues that this Rule effectively strips intermediaries of choice and imposes a form of self-interested censorship, which goes beyond the permissible restrictions under Article 19(2). Gokhale J. also references cases like R Rajgopal v State of TN and international precedents like New York Times v Sullivan to support the principle that rules compelling guarantees of truth under threat of suppression lead to self-censorship. [para. 90, Patel J.]

Patel J. concluded that while the government has an expansive right to counter any content, it has an extremely restricted entitlement to abridge the fundamental right to free speech. He dismisses the government’s arguments about welcoming debate and dissent, stating that the impugned Rule leaves no scope for debate, dissent, or satire before the material is removed from the public domain. Patel J. emphasized that this case is not about a particular government but about the limits of what the State can permissibly do in restricting free speech. [paras. 96-97, Patel J.]

• On the chilling effect

Patel J. defined the concept of “chilling effect” as a phenomenon that leads to self-censorship, either directly by the author or indirectly by those who control the author’s content. [para. 98, Patel J.] This self-censorship occurs when there’s knowledge that certain content will be proscribed or result in adverse consequences, causing individuals to refrain from exercising their right to free speech. Patel J. elaborated on the “marketplace of ideas” as a forum for exchange, debate, and dissent. [para. 99, Patel J.] He emphasizes that this marketplace is not about agreement or conformity, but rather about the expression of diverse ideas, perspectives, and opinions. Patel J. stressed that without disagreement and debate, there is no real “right to freedom of speech and expression.” He notes that this marketplace demands civility in discourse, even when disagreeing. To support his analysis, Patel J. referenced the decision of S Muralidhar J in Srishti School of Art, Design & Technology v Chairperson, Central Board of Film Certification, which highlights the importance of divergence in perception and expression. [para. 100, Patel J.] He also mentions the Supreme Court decision in Kaushal Kishor v State of Uttar Pradesh & Ors, which addresses the question of whether restrictions on free speech under Article 19(2) are exhaustive and whether additional restrictions can be imposed based on other fundamental rights. [paras. 100-102, Patel J.]

• On the issue of the impugned Rule surviving the Article 19(2) test

Patel J. emphasized that the Rule had to be shown to fall strictly within the parameters of Article 19(2). Patel J. rejected the government’s attempts to justify the Rule based on concepts not found in Article 19(2), such as “national security,” “public interest,” and “national interest”. He pointed out that free speech could not be regulated “in the public interest” because this ground was not included in Article 19(2), although it appeared in Articles 19(5) and 19(6) Patel J. dismissed the government’s reliance on the Secretary, Ministry of Information & Broadcasting v Cricket Association of Bengal case, noting that it dealt with regulating licenses for broadcasters, not content. [paras. 155-156, Patel J.] Patel J. rejected the notion that the fundamental right to free speech was limited to ensuring citizens received only “true” and “accurate” information as determined by the government. [paras. 158, Patel J.]  He asserted that it was not the government’s role to keep citizens from falling into error, but rather the citizens’ duty to prevent the government from doing so. Patel J. emphasized that all forms of expression were presumptively protected under Article 19(1)(a), with the only restrictions being those specified in Article 19(2). [paras. 159, Patel J.]

Furthermore, Patel J. held that even restrictions on fake, false, or misleading information had to fall within Article 19(2) and satisfy the tests of being the least restrictive and meeting the demands of the doctrine of proportionality. [paras. 163, Patel J.] He noted that while some “fake news” calling for insurrection or inciting violence might fall within the “public disorder” grounds of Article 19(2), this would require specific guidelines and a narrower definition of what could be considered fake, false, or misleading. Patel J. concluded that the impugned Rule took up falsity per se and restricted content on that ground, divorced from and untraceable to any specific part of Article 19(2), which he deemed impermissible. [paras. 164, Patel J.]

• On proportionality

Patel J. relied its reasoning on the proportionality based on the five-fold test established by the Supreme Court in Gujarat Mazdoor Sabha & Anr v State of Gujarat. [paras. 192, Patel J.] He concluded that the impugned Rule fails all five tests of proportionality. Specifically, he agrees with Mr. Datar’s submission that the Rule fails the fifth test, which requires sufficient safeguards against abuse of interference, as the after-the-event grievance redressal mechanism is inadequate because the officer in question cannot know the basis for identifying content as fake, false, or misleading. [paras. 193, Patel J.] Patel J. went further, and asserted that the Rule fails not just the fifth test, but all five tests of proportionality, which include: legitimate State aim, rational connection between the measure and its objective, necessity and non-excessiveness of the measure, protection of legitimate purposes, and provision of sufficient safeguards. This comprehensive failure of the proportionality test significantly undermines the Rule’s constitutional validity concerning freedom of expression. [paras. 193-194, Patel J.]

Opinion of Justice Atul Chandurkar

Atul Chandurkar, in his opinion, first addressed points on which either no difference of opinion existed between Patel J. and J. Gokhale or only one judge expressed an opinion. On the classification and discrimination issue, Patel J. held that the impugned Rule amounted to class legislation violating Article 14, as there was no intelligible differentiation justifying the Central Government’s preferential treatment, a view not shared by J. Gokhale. [paras. 178-188, Patel J.’s opinion] On procedural fairness, Patel J. further held that the Rule’s lack of guidelines and hearing procedures violated principles of natural justice, but J. Gokhale did not opine on this. [paras. 189-191] Thus, Chandurkar J. found it unnecessary to examine these issues further, as they had not been contested by both judges. [paras. 24-25, Chandurkar J.]

• On Article 19 of the Constitution and the question of its violation 

Chandurkar J., in his opinion on Article 19, also considered the challenged Rule in light of the rights guaranteed under Article 19(1)(a) and the restrictions permitted by Article 19(2) of the Constitution. He held that the Rule infringed upon the freedom of speech and expression by attempting to impose a “right to the truth,” a notion he found unsupported by Article 19(1)(a). While making reference to cases including Shreya Singhal v. Union of India, Anuradha Bhasin v. Union of India, Sakal Papers Pvt. Ltd. v. Union of India, and Cricket Association of Bengal, Chandurkar J. held that the Rule, by restricting the dissemination of allegedly false information, did not fall within the permissible grounds of Article 19(2). He emphasized that while free speech on the internet was a fundamental right, any restriction upon it must be justified under Article 19(2) and deemed reasonable. [paras 28, 32, Chandurkar J.]

Chandurkar J. referenced Sakal Papers to demonstrate that the press has the right to publish content freely, provided it remains within Article 19(2)’s boundaries. In this case, the Court had struck down restrictions on newspaper content based on their alleged impact on readers, affirming that the propagation of views should not be restricted unless they threatened public order, decency, or other specified grounds under Article 19(2). [para 30, Chandurkar J.] Similarly, he referred to the Cricket Association of Bengal to reinforce the stance that freedom of expression includes the right to disseminate information through any chosen media, whether print, electronic, or audiovisual. He contended that attempts to restrict content based on its truthfulness were outside Article 19(2)’s limited grounds. [para 31, Chandurkar J.] 

Chandurkar J. also referred to Shreya Singhal v. Union of India, where the Supreme Court found that restrictions that allowed for broad censorship beyond Article 19(2)’s permissible limits were unconstitutional. Chandurkar J. contended that the impugned Rule, similar to Section 66A, could suppress information based solely on its alleged falsity, thereby imposing unreasonable restrictions outside of Article 19(2). [para 32, Chandurkar J.] Additionally, he cited Anuradha Bhasin, wherein the Supreme Court underscored that online freedom of expression was integral to Article 19(1)(a). The Court had held that restrictions imposed on this medium must still satisfy Article 19(2), further supporting the argument that the Rule in question was overly broad. [para 33, Chandurkar J.] 

Addressing the broader implications, Chandurkar J. referenced Kaushal Kishor v State of Uttar Pradesh, where the Constitution Bench reiterated that restrictions not falling within Article 19(2)’s scope would be unconstitutional. He applied this principle to underline that the impugned Rule, by mandating the removal of “false” or “misleading” information without reference to Article 19(2)’s justifications, overstepped constitutional bounds. Chandurkar J. held that the Rule’s framework, as subordinate legislation, could be struck down for overstepping the powers conferred by its enabling Act if it attempted to introduce restrictions not permissible under Article 19(2) [para 34, Chandurkar J.]  Chandurkar J. agreed with Patel J.’s view that it is not the state’s responsibility to determine what information is “true” or “false” He concluded that Rule 3(1)(b)(v), which sought to restrict information transmission based on content not relatable to Article 19(2), was unconstitutional. The rule was deemed ultra-vires of Article 19(1)(a) and Article 19(2), as it attempted to place restrictions through delegated legislation that were not in consonance with constitutional provisions. [para 36, Chandurkar J.] 

Chandurkar J., in his assessment of the challenge under Article 19(1)(g) read with Article 19(6), concurred with the view that the impugned Rule directly infringed upon the constitutional guarantee of the right to practice any profession or carry out any occupation. He aligned with Patel J.’s findings, that information regarding the Central Government’s business, when published in print media, was not subjected to the same intense scrutiny as information shared on digital platforms, where it was liable to be suppressed if deemed “fake,” “false,” or “misleading.” Chandurkar J. emphasized that this differential treatment resulted in an unreasonable and arbitrary restriction solely targeting digital media, which constituted a direct violation of Article 19(1)(g) [para 37-38, Chandurkar J.] Dr. Gokhale J’s opinion, noted that the petitioner’s concerns over political satire were accounted for within the impugned Rule’s framework. However, Chandurkar J. disagreed, highlighting that the Editors Guild of India rightly raised concerns about the disparate scrutiny faced by print and digital media. He underscored that there was no rational basis for selectively applying these rigors to digital platforms while exempting print media from similar scrutiny. By supporting the Editors Guild’s grievance regarding the broader implications of such selective fact-checks, Chandurkar J. reaffirmed that this differential treatment lacked a constitutional basis, thereby infringing the right under Article 19(1)(g) [para 37-38, Chandurkar J.] 

• On the violation of Article 14 of the Constitution 

Chandurkar J. held that Rule 3(1)(b)(v) of the Rules of 2021 breached Article 14 by effectively making the government the final arbiter in determining whether information about its business was “fake,” “false,” or “misleading.” He agreed with Patel J.’s interpretation, where Patel J. highlighted the inherent conflict of interest in the government appointing and controlling the FCU tasked with evaluating its own information, thereby contravening the principle that one cannot be a judge in one’s own cause. Chandurkar J. supported Patel J.’s reliance on the A.K. Kraipak v. Union of India, which held that principles of natural justice prevent a party from adjudicating its own disputes. [para 40, Chandurkar J.]  He noted that allowing the government to unilaterally label information as false or misleading undermined fairness and objectivity, which are central to Article 14’s guarantee of equal treatment under the law. Although Dr. Gokhale J. contended that courts retained the final say, Chandurkar J. dismissed this as an inadequate safeguard, as the initial determination of truthfulness remained under executive control. [para 42, Chandurkar J.] 

Chandurkar J. also agreed with Patel J.’s critique of the differential treatment of digital and print media under the impugned Rule, underscoring that this distinction violated Article 14’s requirement for equal protection of the law. While information about the government could be freely published in print without such scrutiny, the same content shared digitally faced the risk of being flagged and suppressed if deemed misleading by the FCU. This, he contended, created an unjustifiable inconsistency, subjecting digital media to restrictions that print media avoided. [para 40, Chandurkar J.] Chandurkar J. pointed to the vagueness surrounding the FCU’s operations, as also noted by Dr. Gokhale J. arguing that the lack of clear guidelines on how information would be classified as “fake” or “misleading” reinforced the Rule’s arbitrariness. Ultimately, by selectively applying these standards to digital media, Chandurkar J. concluded that the amended Rule violated Article 14, as it lacked a rational basis for subjecting digital platforms to unique constraints.

• On the issue of ‘knowingly and intentionally the expression ‘fake’

Chandurkar J. supported Patel J.’s interpretation that the phrase “knowingly and intentionally communicates” in Rule 3(1)(b)(v) of the 2021 Rules, as amended, applied only to misinformation unrelated to Central Government business. Patel J. held that the 2023 amendment created an independent clause by adding “or, in respect of any business of the Central Government, is identified as fake or false or misleading by such fact check unit,” which established that, for government-related content, the FCU’s determination alone was sufficient to identify false or misleading content without regard to the user’s knowledge or intent. Chandurkar J. concurred, noting that the disjunctive “or” between the original rule and the amendment marked a clear separation, placing government-related content in a unique category wherein safe harbor protections could be lost if FCU-identified information continued to be hosted, irrespective of the user’s awareness or intent [para 41, Chandurkar J.] He emphasized that the FCU was empowered to determine content authenticity-related specifically to Central Government business, thus eliminating any need to establish user intent for content falling under this scope. Chandurkar J. found that maintaining this separation was essential to avoid rendering the word “or” meaningless, as including the knowledge and intent requirement in the amended clause would undermine the rule’s intended bifurcation between non-government and government business information. [para 42, Chandurkar J.]

Chandurkar J. concurred with Patel J.’s view that the expression “fake or false or misleading” in Rule 3(1)(b)(v) of the 2021 Rules was overly broad and lacked clarity, rendering it vague and susceptible to subjective interpretation. Patel J. had referred to Section 3 of the Indian Evidence Act, 1872, and cited scholarly works, arguing that without specific guidelines to direct the FCU on identifying fake, false, or misleading information, the rule provided only an “illusion of choice” in the context of Central Government business, effectively leaving it open-ended. [para 43, Chandurkar J.] Furthermore, Chandurkar J. highlighted that the disjunctive use of “or” between “fake,” “false,” and “misleading” further compounded the issue, as each term represented distinct concepts and was not interchangeable, thereby creating multiple interpretive possibilities without any clear framework. He underscored the potential breadth of the term “misleading,” which could have numerous interpretations, making it essential for the rule to contain either definitions or guiding principles for each term. Chandurkar J. agreed that the rule’s ambiguity allowed the FCU broad, unguided discretion, creating an arbitrary standard. Citing the Madras High Court’s decision in R. Thamaraiselvan, he endorsed the need for structured definitions to prevent vagueness and held that, in their absence, the rule was excessively broad and thus liable to be struck down. [para 44, Chandurkar J.]

• On the Chilling Effect

Chandurkar J. acknowledged the chilling effect of the amended Rule 3(1)(b)(v) and aligned with Patel J.’s analysis, agreeing that the Rule’s vagueness could result in self-censorship by intermediaries and users due to the lack of defined terms like “fake,” “false,” or “misleading.” Patel J held that the chilling effect stems from an environment where individuals preemptively suppress speech due to a perceived threat of punitive measures, creating a “marketplace of ideas” less open to disagreement and debate. [para 46, Chandurkar J.] The rule’s ambiguous language, according to Patel J, intensified this effect by granting the FCU unchecked discretion, thereby leaving intermediaries and users uncertain of the boundaries of permissible content. Chandurkar J. underscored that this chilling effect was not merely hypothetical; rather, it had been recognized as a real concern in the landmark case Shreya Singhal v. Union of India, where the Supreme Court noted that vagueness in law amplifies the chilling effect, especially when the law lacks explicit standards for content regulation. [para 47, Chandurkar J.] The chilling effect, in this context, reflected the anticipated suppression of speech due to the absence of clear guidance on what constitutes “fake” or “misleading” information.

Chandurkar J. further referred to the Supreme Court’s judgments in Anuradha Bhasin v. Union of India and Shreya Singhal, explaining that the principle of the chilling effect had become an integral part of Indian jurisprudence, particularly in assessing the constitutional validity of speech restrictions. He pointed to the decision in Mohammed Zubair v. State of Uttar Pradesh, where the Supreme Court opined that imposing a gag order on the petitioner would unduly restrict free expression, further reinforcing the chilling effect argument. Chandurkar observed that the rule’s undefined terms could lead to a loss of safe harbor for intermediaries, compelling them to err on the side of caution by restricting more speech than necessary. He concluded that, in totality, the rule’s vagueness and its potential to produce a chilling effect formed a significant ground for invalidating it. Chandurkar J. thus concurred with Patel J that, without clear definitions or guidance, the rule imposed an unconstitutional burden on free expression by chilling speech due to the fear of unpredictable State action against intermediaries. [para 47, Chandurkar J.] 

On proportionality

Chandurkar J., in assessing the proportionality of the amended Rule, echoed the five-fold proportionality test established by the Supreme Court in Gujarat Mazdoor Sabha. Patel J., whose views Chandurkar J. endorsed, had previously determined that the Rule failed all five prongs of this test, rendering the Rule disproportionate. In contrast, Gokhale J. had reasoned that the Rule’s requirements for intermediaries to ensure the accuracy of content were consistent with Section 79(3)(b) of the IT Act, 2000, as interpreted in Shreya Singhal. [para 53, Chandurkar J.]  Gokhale J. held that this obligation, targeting misinformation and offensive content while exempting political satire and opinions, did not violate the proportionality principle, given that the Rule was intended to limit only “offensive information” with specific qualifications, such as knowledge and intent. However, Chandurkar J. found Gokhale J.’s analysis insufficient, contending that the Rule’s lack of clear safeguards against abuse and its potential interference with fundamental rights were constitutionally unsound. [para 54-55, Chandurkar J.] 

Chandurkar J. highlighted that merely claiming that the Rule adopted a “least restrictive approach” did not justify its validity. He was unconvinced by the Union of India’s argument that the Rule was narrowly tailored to counter misinformation, finding instead that it overreached by interfering with the freedom of speech under Article 19(1)(a) and the right to trade under Article 19(1)(g). Chandurkar J. observed that these fundamental rights could not be abridged without strong justification, and the amended Rule’s broad terms, such as “fake or false or misleading,” without clear definitions, would ultimately fail to meet the proportionality test. He concurred with Patel J. that the amended Rule’s vague and overbroad language lacked the precision needed to maintain the proportionality required by law.

In his conclusion, Chandurkar J. held that Rule 3(1)(b)(v) of the 2021 Rules, as amended in 2023, was unconstitutional. He agreed with Patel J. that the Rule violated Articles 14, 19(1)(a), and 19(1)(g) of the Constitution and exceeded the authority granted by the IT Act of 2000. He emphasized that the Rule’s undefined terminology and lack of specific safeguards left it overly broad, potentially triggering a chilling effect on free speech. The Rule, Chandurkar J. concluded, could not be salvaged by reading down or imposing any implied limitations, and thus was liable to be struck down in its entirety. [para 56-57, Chandurkar J.]