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.

BSF personnel cannot be drunk while on duty: Supreme Court