Upholding Constitutional Integrity: The Bombay High Court's Resolute Stand on Digital Rights and Governance
The Bombay High Court's judgment striking down Clause 3(1)(b)(v) robustly defends constitutional rights against executive overreach in digital governance.
On September 20, 2024, a pivotal judgment was rendered by a single judge acting as a tiebreaker, which declared Clause 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021—amended on April 6, 2023—as ultra vires. This ruling highlighted the clause's contravention of several articles of the Indian Constitution and Section 79 of the IT Act of 2000, as well as its violation of the principles of natural justice. The controversy surrounding this clause first escalated to the Bombay High Court, which delivered a split verdict on February 6, 2024. Subsequent to this, the tiebreaker judge, in a session on March 11, 2024, declined to grant interim relief to the petitioner. This decision underscored the fact that the Fact Checking Unit (FCU) had not been formally established at that time, allowing the Central Government to proceed with the FCU's notification on March 20, 2024, through an official gazette. However, this notification was promptly stayed by the Supreme Court on March 21, 2024, pending the resolution of ongoing proceedings. This article aims to delve into the rationale employed by the tiebreaker judge in striking down the contentious clause, examining the justifications and reasoning that led to its classification as unconstitutional and in violation of key legal principles.
Points on Which Divisional Judges Agreed or One Remained Silent
The tiebreaker judge focused on identifying areas where the Divisional Bench judgments aligned, or where only one judge expressed an opinion while the other remained silent. The adjudication did not extend to issues where there was consensus, concentrating only on points of contention. Here’s a summary of the agreed conclusions:
Classification and Discrimination
Key adjudication theme - Central Government does not constitute a unique class deserving preferential treatment.
Patel J, analyzing paragraphs 178 to 188, emphasized that although Article 14 of the Constitution permits classification, it strictly prohibits class legislation. He argued that the Central Government does not constitute a unique class deserving preferential treatment. The differentiation must be clear and justifiable, which was not the case with the impugned Rule, thus deeming it discriminatory and violating Article 14. Dr. Gokhale J did not comment on this matter, allowing Patel J's observations to stand unopposed.
Violation of Principles of Natural Justice
Key adjudication theme - violation of procedural fairness, combined with the absence of a reasoned order from the FCU
In paragraphs 189 to 191, Patel J critiqued the impugned Rule for its procedural unfairness. The absence of guidelines on its operation, lack of a hearing process, and no opportunity to counter allegations rendered the Rule fundamentally unjust. This violation of procedural fairness, combined with the absence of a reasoned order from the FCU, rendered it indefensible under principles of natural justice. Dr. Gokhale J did not express an opinion on these points, leaving Patel J’s findings unchallenged, except concerning the “aspect of bias,” where differing opinions were noted.
Points of Disagreement Among Divisional Judges and the Rationale Behind Breaking the Tie
Violation of Article 19(1)(a) vs. Article 19(2) of the Indian Constitution
Key adjudication theme - Article 19(1)(a) provides a broad right to freedom of speech and expression, and does not include a "right to the truth." and only subjected reasonable restriction under Article 19(2)
Patel J. highlighted that Article 19(1)(a) provides a broad right to freedom of speech and expression, emphasizing that it does not include a "right to the truth." He argued that any internet speech restrictions should comply strictly with the reasonable limitations set out in Article 19(2), and should not be limited to government-sanctioned "true" and "accurate" information.
Dr. Gokhale J. pointed to the Shreya Singhal case regarding Section 79 of the IT Act of 2000, underscoring that loss of safe harbor should only occur if content explicitly violates the restrictions under Article 19(2), thereby ruling out automatic removal of safe harbor protections for reasons outside these specified constraints.
Tiebreaker Judge’s Perspective: The tiebreaker judge noted that the rule improperly attempts to control the transmission of 'information' as defined by Section 2(1)(v) of the IT Act of 2000, based on content that does not pertain to any of the eight subjects listed under Article 19(2) of the Constitution, thus stepping beyond permissible grounds for restriction.
Violation of Article 19(1)(g) Read with Article 19(6) of the Indian Constitution
Key adjudication theme - No FCU for Print Media, but Only for Digital Media
Patel J. (Paragraphs 167-177) emphasized that information about the Central Government, when presented in print media, does not undergo the same level of scrutiny as it does on digital platforms under the impugned Rule. He argued that this discrepancy leads to a kind of censorship that only applies to digital content, resulting in a direct infringement of Article 19(1)(g), which protects the freedom to practice any profession, or to carry on any occupation, trade, or business.
Dr. Gokhale J. (Paragraph 30) countered this by noting that the concerns about political satire being unreasonably curtailed under arbitrary fact-checking were adequately addressed by the provisions of the impugned Rule. She argued that the Rule does not violate the rights guaranteed under Article 19(1)(g) as it stands within the reasonable restrictions provided under Article 19(6).
Tiebreaker Judge’s Perspective: The tiebreaker judge agreed with Patel J., highlighting the inconsistency of applying rigorous scrutiny to digital content while allowing similar print content to go unchecked. He pointed out the lack of a sound basis for differentiating between digital and print media in terms of the factual scrutiny applied to information related to the Central Government. This differentiation unjustifiably infringes on the rights protected under Article 19(1)(g).
Violation of Article 14 of the Indian Constitution
Key adjudication theme - Equality below law breaks down as in FCU Government itself is the final arbiter in its own cause
Patel J. argued that the constitution of the Fact Checking Unit (FCU) by the Central Government makes the government a judge in its own cause, which contravenes principles of natural justice as seen in the decision of A. K. Kraipak & others. He pointed out that this direct control over determining the authenticity of information related to the government's business creates an inherent bias, violating Article 14 which mandates equality before the law.
Dr. Gokhale J. countered by highlighting the presence of a judicial redressal mechanism that ensures any grievances concerning the FCU's decisions can be adjudicated by a competent court. She argued that this safeguard is sufficient to address potential biases, maintaining that the FCU's constitution does not inherently violate Article 14. However, she acknowledged the legitimate concerns regarding the government's intentions behind the impugned Rule, suggesting these should not be dismissed as trivial.
Tiebreaker Judge’s Perspective: The tiebreaker judge concurred with Patel J., emphasizing the problematic nature of the government acting as both complainant and adjudicator through the FCU. This arrangement, he argued, lacks the necessary impartiality, particularly when similar information is treated differently across digital and print media, leading to an inconsistent application of rules. Such discrepancies underscore a violation of Article 14, as they do not provide equal protection under the law for similar content in different mediums.
Divergence on the Application of "Knowingly and Intentionally"
Key adjudication theme - Separate standards for government-related content, where the intermediary's compliance with FCU determinations, rather than user intent, becomes crucial.
Patel J. contended that the phrase "knowingly and intentionally communicates" in Clause 3(1)(b)(v) specifically applies to the clause addressing misinformation or content that is false or misleading does not extend to the 2023 amendment involving the Central Government's business, which is adjudicated by the Fact Checking Unit (FCU) without requiring the user's knowledge or intent. Patel J. highlighted the disjunctive "or" to emphasize that the amendment introduces an independent clause, thus separating the user's intent and knowledge from the determination of what is fake, false, or misleading by the FCU.
Dr. Gokhale J. disagreed, asserting that "knowingly and intentionally" should apply uniformly across the rule, including the amended portions relating to the Central Government. She argued that knowledge and intent are critical for determining the loss of safe harbor protections, and that these elements should be adjudicated through evidence in a competent court.
Tiebreaker Judge’s Perspective: The tiebreaker judge sided with Patel J., noting the distinct treatment of content related to non-Central Government versus Central Government business under the rule. He recognized the new clause as creating separate standards for government-related content, where the intermediary's compliance with FCU determinations, rather than user intent, becomes crucial.
Interpretation of "Fake or False or Misleading"
Key adjudication theme - Use of “or” between words makes interpretation very wide and expansive - giving excessive powers to the Fact Checking Unit.
Patel J. addressed the ambiguity of the phrase "fake or false or misleading" within Rule 3(1)(b)(v) of the 2021 Rules, noting the absence of guidelines on how the Fact Checking Unit (FCU) should identify such information. He referred to the Indian Evidence Act, 1872, and various scholarly works, concluding that the rule was vague and overbroad. Patel J. emphasized that the use of the words "fake," "false," and "misleading" in a disjunctive manner (separated by "or") contributed to this vagueness, as it left too much room for interpretation without clear definitions, creating just an "illusion of choice."
Dr. Gokhale J. took a different approach by referring to the dictionary definitions of these terms and argued that they should be understood contextually. She believed that when used in the rule, these terms specifically pertain to deceptive or deceitful information, which does not render the rule vague or invalid. However, she acknowledged that these terms were not defined in the rule itself, suggesting the necessity to examine future FCU notifications for possible clarifications.
Tiebreaker Judge's Perspective: I align with Patel J.'s view on the rule's vagueness due to the lack of explicit guidelines or definitions for identifying what constitutes "fake or false or misleading" information. This ambiguity gives the FCU excessive discretionary power without a clear framework, potentially leading to arbitrary enforcement. This, coupled with the critical need for precision in legal definitions, especially concerning government-related content, confirms the rule’s vulnerability to being struck down for being overly broad and unclear.
Ultra Vires Challenge to the Impugned Rule under the Act of 2000
Key adjudication theme - IT Act does not empower GOI to form FCU and any such rules introduced should be laid before the parliament as per Section 83(3) of IT Act
Patel J. argued that the impugned Rule exceeded the rule-making power granted under the Act of 2000. He noted that while Section 87(2)(z) of the Act allows for procedures and safeguards regarding public access blocking under Section 69A(2), it does not authorize the creation of a Fact Checking Unit (FCU) to label government-related information as fake or false. He maintained that the Rule thus constitutes substantive law, exceeding the boundaries set by the Act and Article 19(2) of the Constitution, and declared it ultra vires—beyond the legal power or authority of the government.
Dr. Gokhale J. disagreed, stating that any content blocking by intermediaries must follow the procedures outlined in the Blocking Rules of 2009 and the Ethics Code Rules, asserting that the impugned Rule is within the scope of the Act of 2000 and consistent with the Shreya Singhal judgment. She rejected the challenge that the Rule was ultra vires.
Tiebreaker Judge’s Perspective: I concur with Patel J. that the amended Rule 3(1)(b)(v) is ultra vires the Act of 2000. The amendment was not properly presented before Parliament as required by Section 87(3) of the Act, and the Rule does not align with the specified provisions of Section 87(2)(z) or Section 87(2)(zg), which relate to blocking access and guidelines for intermediaries, respectively. The Rule imposes restrictions that extend beyond what is allowable under Article 19(2) of the Constitution and lacks conformity with established legal principles, reflecting manifest arbitrariness and exceeding the intended regulatory framework of the Act.
Differing Views on the "Chilling Effect" of the Impugned Rule
Key adjudication theme - Impending Fear of Pick and Choose Government Control Censorship of Digital Content
Patel J. highlighted the "chilling effect" as a significant concern, describing it as factors leading to inevitable self-censorship, whether direct or indirect through content control by another agency. He argued that the impugned Rule's vagueness and overbreadth foster an environment where authors may refrain from exercising free speech due to potential repercussions from content overseers, thus stifling the "marketplace of ideas" essential for free and open discourse.
Dr. Gokhale J. disagreed, noting the absence of any intermediaries before the Court complaining of a chilling effect. She posited that since the impugned Rule was developed in consultation with intermediaries and did not necessarily target political satire or criticism, it supported rather than suppressed free exchange of ideas. She asserted that fears regarding the loss of safe harbor for intermediaries flagged by the FCU were unfounded and premature, emphasizing that the Rule encourages fact-based discussions and does not inherently restrict free speech as long as the content adheres to Article 19(2) restrictions.
Tiebreaker Judge's Analysis: Reflecting on the significant Supreme Court cases Anuradha Bhasin and Shreya Singhal, which identified the chilling effect as a key factor in evaluating state actions' impact on free speech, I find these precedents crucial. These decisions stress the importance of having clear, precise legal standards to avert arbitrary speech restrictions. In accordance with these rulings and considering the vague and expansive nature of the impugned Rule, I align with Patel J.'s view that the Rule potentially suppresses free expression by placing undue constraints on intermediaries. This likely chilling effect, combined with the Rule’s lack of definitive guidelines, strongly supports its invalidation. This perspective underscores the need for regulatory clarity to safeguard the constitutional guarantee of free speech effectively.
Analysis of Proportionality in the Impugned Rule
Key adjudication theme - The Rule lacks adequate safeguards to prevent abuse and does not demonstrate that it employs the least restrictive means necessary to combat "fake or false or misleading information."
Patel J.'s Evaluation: Patel J. assessed the proportionality of the impugned Rule using the five-fold test established by the Supreme Court in Gujarat Mazdoor Sabha. He concluded that the Rule failed to meet any of the criteria and upheld the challenge based on its disproportionality. This failure indicates that the Rule excessively infringes upon freedoms without adequate justification or consideration of less restrictive alternatives.
Dr. Gokhale J.'s Viewpoint: In contrast, Dr. Gokhale J. argued that the Rule was not disproportionate. She referenced the interpretation of Section 79(3)(b) of the Act of 2000 as modified in Shreya Singhal, which restricts loss of safe harbour to violations directly related to Article 19(2) of the Constitution. She maintained that the due diligence required by the impugned Rule is reasonable, aligning with the constitutional safeguards against spreading misinformation or fake content. Dr. Gokhale J. dismissed concerns about potential abuse of the Rule, emphasizing its application only to clearly defined "offensive information," and therefore found no grounds to strike it down.
Tiebreaker Judge's Perspective: Considering the arguments, I uphold the challenge that the impugned Rule fails the proportionality test, especially as it seeks to limit fundamental rights under Articles 19(1)(a) and 19(1)(g) of the Constitution. The Rule lacks adequate safeguards to prevent abuse and does not demonstrate that it employs the least restrictive means necessary to combat "fake or false or misleading information." Consequently, the Rule’s infringement on fundamental rights is neither justified nor proportionate, aligning with Patel J.'s observations. Thus, on grounds of proportionality alone, the impugned Rule cannot be sustained.
Conclusion: Reaffirming the Tenets of Constitutional Guarantees and Judicial Prudence
The pivotal judgment by the tiebreaker judge on September 20, 2024, striking down Clause 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, represents a resolute affirmation of constitutional sanctity and the rule of law in India. The judgment meticulously dissects and invalidates the impugned clause, highlighting its inconsistencies with the Indian Constitution, the IT Act of 2000, and fundamental principles of natural justice. This case has not only underscored the necessity for laws to be clear, precise, and justly applied but also highlighted the crucial role of judicial oversight in preventing the overreach of legislative actions by the executive.
In every aspect—from the disproportionality of the impugned Rule, its vague and broad language leading to a chilling effect on free speech, to its ultra vires nature relative to the parent statute—the judgment has carefully balanced the need for national security and public order with the imperatives of individual freedoms. The detailed analysis by the tiebreaker judge, supported by precedents and rigorous legal scrutiny, has ensured that the digital space remains a free market of ideas rather than a regulated echo chamber subject to whimsical governmental control.
This judgment not only navigates through complex legal and constitutional queries but also sets a robust benchmark for future legislation and policymaking. It sends a clear message that while regulation is necessary in the age of digital expansion, it must not stifle the fundamental rights that form the bedrock of democracy. The decision reaffirms the judiciary's role as the guardian of constitutional values and protector against any encroachment on the rights afforded by the Constitution. In essence, this ruling is a beacon for maintaining a balanced approach in law that respects both the needs of governance and the liberties of the governed, ensuring that India’s digital landscape continues to thrive as an arena of free expression and innovation under the watchful guidance of judicial prudence.