Central government’s chronic struggle to legislate on the Internet in accordance with Article 19 - Part I

On September 26, 2024, Justice Atul Chandurkar of the Bombay High Court delivered his “tiebreaker” judgment in Kunal Kamra V. Union of India (“Kunal Kamra Judgment”). Ruling in favour of the petitioners, the Bombay High Court declared Rule 3(1)(b)(v) (“Impugned Rule”) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) as unconstitutional. Justice Chandurkar’s judgement follows a split verdict delivered by a Division Bench of the Bombay High Court earlier this year.

The ruling finds its genesis in an amendment to the IT Rules introduced by the Ministry of Electronics and Information Technology (MeitY) in April 2023, which inter alia introduced the Impugned Rule. This amendment casts a mandate upon the intermediaries to remove any information pertaining to the “business of the government” that is deemed "fake, false, or misleading" by the “Fact Check Units” (FCUs) set up by the Central Government.

Before delving into the dispute, it is imperative to contextualise Section 79 of the Information Technology Act, 2000 (“IT Act”), which provides immunity to social media intermediaries (such as X [formerly Twitter] or YouTube) from any liability that may be incurred by hosting third party content (“safe harbour”). However, the said protection is not applicable where the intermediaries are unable to expeditiously remove or disable access to third-party material despite having received actual knowledge or having been notified by the appropriate government that such material is being used to commit an unlawful act. The grounds on which the Central Government can seek such a takedown of third-party content have been enumerated in Section 69A of the IT Act.

Interestingly, when IT Rules were introduced, it broadened the reasons for seeking such a takedown, thereby widening the scope for interference with the safe harbour protection granted to social media intermediaries. It is worth noting that as of March 2024, the Supreme Court has transferred various petitions challenging the grounds to remove safe harbour for Intermediary Guidelines under IT Rules, 2021 to the Delhi High Court, and the matter is currently sub judice.

The Impugned Rule, as introduced vide the 2023 amendment, took things a step further by creating another class of content viz., information relating to the ‘business of the Central Government’, which was mandated to be taken down by the intermediary upon it being ‘found’ to be fake, false or misleading by a notified FCU. The rules sought to burden the intermediaries by making it mandatory for them to take down any content pertaining to the business of the Central Government upon it being flagged by the FCUs.

Aggrieved by the Impugned Rule, the petitioners challenged the constitutionality of the amendment on the following grounds:

1. The Impugned Rule is vague, overbroad, impossible to interpret – thereby, violative of Article 14 of the Constitution.

2. The Impugned Rule falls foul of the principles of natural justice.

3. The Impugned Rule does not fall strictly within the parameters of Article 19(2) as a restriction on the right to free speech.

4. Loss of safe harbour for intermediaries has a ‘chilling effect’ on the free speech of its users, where the right is stifled by compelling the intermediary to act in aid of a direction by the FCU, failure of which results in an automatic loss of immunity under Section 79 of the IT Act. The principle of chilling effect is that a person could be restricted from exercising his protected right due to the ambiguous nature of an overbroad statute. [Para. 155 and 156, Anuradha Bhasin v. Union of India, (2020) 3 SCC 637)]

5. The Impugned Rule fails the established test of proportionality.

6. The Rules are ultra vires to the IT Act.

Notably, the legal principles as discussed in the Kunal Kamra Judgment have already been settled by several decisions revolving around internet laws. The petitioners’ arguments and Justice GS Patel’s opinion are a testament to the fact that the Parliament seems to be consistently failing in incorporating the evolving jurisprudence on internet laws. At this juncture, it becomes imperative to have a closer look at each of the grounds mentioned hereinabove.

It is well settled that the State can impose “reasonable restrictions” on the fundamental right to free speech, guaranteed under Article 19(1) of the Constitution, on the grounds exhaustively enumerated in Article 19(2).  

The jurisprudence on free speech has been well-settled since 1950. In Brij Bhushan v. State of Delhi, the Supreme Court ruled that Section 7(1)(c) of the East Punjab Public Safety Act, 1949, which allowed for pre-censorship publication, was an arbitrary restriction on the freedom of speech and expression under Article 19(1)(a) of the constitution.

Subsequently, in Shreya Singhal v. Union of India (“Shreya Singhal Judgment”), the Supreme Court of India declared Section 66A of the IT Act as unconstitutional, citing its vague language and overly broad restrictions on online speech. The Hon’ble Supreme Court found it problematic due to the use of ambiguous terms like “offensive,” which failed to precisely define prohibited conduct or content. The Hon’ble Supreme Court further explained that any interpretation which curtails individuals’ fundamental right to freedom of speech and expression would have a "chilling effect," on free speech thereby discouraging individuals from freely expressing themselves online.

As per KS Puttaswamy V. Union of India, “chilling effect” is stated to mean that “a person could be restricted from exercising his protected right due to the ambiguous nature of an overbroad statute.”

Based on the aforementioned precedents, the Bombay High Court has held Rule 3(1)(b)(v) of the IT Rules as unconstitutional, considering the use of vague terms such as “business of the government” and “fake, false and misleading”. This marks the second time that a constitutional court has cited a provision’s nature as over-broad and vague in the context of free speech on the internet.

However, as discussed above, the vagueness of the provision and its resultant chilling effect are not the only well-established principles in the law regarding internet legislation that have been upheld by the Supreme Court and reiterated again in the context of the Kunal Kamra Judgement. The recurring pattern of such constitutional principles being forgotten at best, and ignored at worst, during the drafting of this delegated legislation also includes struggles to meet the test of proportionality and adhere to the principles of natural justice. Part II of this Article elaborates further on the same.

The article is continued in the second part.

About the authors: Pranav Bhaskar is a Partner and the Head of Corporate Practice at SKV Law Offices. Akash Lamba is a Senior Associate and Adarsh Singh is a Trainee Associate at the Firm.

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