New Delhi: The right to free speech and expression, not the right to truth, is a constitutional right, the Bombay High Court held Friday, declaring the Centre’s amendments to the Information and Technology Rules, 2021, as “ultra vires”—used in law to describe an action that exceeds the legal authority of a government, company, or their agents.
In April 2023, the Centre amended the IT rules. The proposed changes empowered the Centre to establish fact check units (FCUs) to identify if information about its functioning uploaded on digital platforms as “fake or misleading” and direct the intermediary to remove such content. In case the intermediary failed to abide by the directive, it faced the risk of losing its legal protection from facing criminal proceedings.
In his judgment, Justice Atul Chandurkar said a citizen’s right to free speech and expression does not impose any responsibility on the Centre to determine if some information is fake or true. With that said, Chandukar declared the IT rules’ amendments as “arbitrary restriction”. He said that the restriction intended to prevent dissemination of information as envisaged originally under the statutory law, The Information Technology Act, 2000.
The judge said the amended rules, more specifically Rule 3(1)(b)(5), infringed upon Article 19(1)(g) of the Constitution since they sought to curtail the rights of digital platforms, adding that the vice of vagueness in their wording has the potential to cause a “chilling effect”. Article 19(1)(g) allows a business entity to practice trade and profession freely.
Justice Chandurkar is the tie-breaker judge whose verdict Friday settled the question of law on the validity of the amended IT rules that came under challenge before the Bombay High Court last year. The amendments triggered a controversy, with critics accusing the government of impinging on the rights of digital platforms and citizens through the proposed changes.
Justice Chandurkar was apprised of the matter in February this year when a division bench of the HC delivered a split verdict on the petitions challenging the amendment. While now-retired Justice Gautam Patel struck down the amendments at the time, Justice Neera Gokhale permitted them, subject to certain safeguards.
While the matter was pending before Justice Chandurkar, the Centre, on 20 March, notified the FCU. Its notification mandated that intermediaries pull down content identified as “misinformation” by the FCU or else face judicial proceedings.
However, only a day later, the Supreme Court, on 21 March, stayed the FCU’s operations until Justice Chandurkar decided the petitions. While delivering that decision, the SC observed the petitions pending before the HC “implicates core values of freedom of speech and expression” and that the queries in the petitions raised “serious constitutional questions”. With that said, it opined that the HC would need to analyse the FCU’s impact on the fundamental right to freedom of speech and expression.
Considering the petitions, Justice Chandurkar elaborately dealt with points of dispute between Justices Patel and Gokhale and ultimately upheld the view expressed by Justice Patel. The matter would now go before a two-judge bench that would pronounce the majority opinion invalidating the amended rules. Since Justice Patel has retired, a new bench, including Justice Gokhale and a new judge, will take up the matter.
Newly inserted proviso 5 of Rule 3(1)(b)
Sub-rule 1 of Rule 3 of the amended IT Rules, 2023, requires intermediaries to observe due diligence while discharging duties, ranging from a prominent display of its privacy policy to having to give an undertaking. In the undertaking, intermediaries pledge to modify, upload, display, transmit, store, or update any potentially objectionable information or information threatening India’s unity, integrity, defence, security, or sovereignty or its friendly relations.
Inserted in April last year, proviso 5 of sub-rule 1 of Rule 3 mandated intermediaries to undertake to comply with government orders in case information uploaded on their platform “deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature [or, in respect of any business of the central government, is identified as fake or false or misleading by such fact check unit of the central government as the ministry may, by notification published in the official gazette, specify].”
According to the petitions, Rule 3(1)(b)(5) violates the Constitution’s Article 19(1)(a), which promises free speech and expression subject to reasonable restrictions as listed under Article 19(2), since the rule transgresses reasonable restrictions under Article 19(2).
After considering the rule in the context of various Supreme Court judgements, Justice Chandurkar held that it seeks to restrict the transmission of information as defined under the original IT Act from 2000. The restriction, he added, is based on grounds unrelatable to the eight subjects Article 19(2) refers to.
Freedom of speech and expression through the Internet was declared an integral part of Article 19(1)(a) in the Anuradha Bhasin judgement related to the internet ban in Jammu & Kashmir, noted the judge. Any curtailment of this right, he said, has to conform to Article 19(2), i.e., restrictions should fall within Article 19(2)’s four corners, with additional ones not to be imposed by an executive order or any departmental conditions. Even through the statutory force of law, a restriction has to be reasonable and within limitations as permitted under Article 19(2), he said.
Justice Chandurkar also touched upon the concept of open government and said it is a direct result of the right-to-know implicit in the right to free speech and expression.
In the light of the settled legal position, Justice Chandurkar said he agreed with the view of Justice Patel 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 is not fake or false or misleading as determined by the FCU.
Infringement of Articles 19(1)(g) and 19(6)
While Article 19(1)(g) guarantees the right to practice any profession, occupation and trade, Article 19(6) allows the state to impose reasonable restrictions on the fundamental right to practice a profession or trade, or conduct a business.
The petitioners in the case had argued that the FCU’s role was limited to digital media, but the print media was not placed on the same level of scrutiny. Like Justice Patel, Justice Chandurkar found merit in the submission.
“It has been held that a piece of information — relating to the business of the central government — that could find (a) place in print media was not subjected to the same level of scrutiny as is expected under the impugned rule (under challenge) when that very information is shared on digital platforms,” he opined.
Saying there is no “censorship” when such material is in print but is liable to be suppressed as “fake, false, or misleading” in its digital form, he upheld Justice Patel’s view that the rule was in “direct infringement of Article 19(1)(g) of the Constitution.”
According to Justice Chandurkar, the government failed to provide any basis or rationale for undertaking the exercise to determine whether any information related to the business of the central government is either fake, false or misleading when in the digital form but not undertaking a similar exercise when that very information is in the print form.
In his view, the amended rules did not satisfy the proportionality test, which every law and executive order has to pass when it seeks to abridge the fundamental rights guaranteed under Article 19(1)(a) and 19(1)(g) of the Constitution.
“Absence of sufficient safeguards against the abuse of the rules that tend to interfere with the aforesaid fundamental rights are shown to be absent,” he said in response to Centre’s plea that the rule is the “least restrictive mode to prevent the spread of fake or false or misleading information”.
Rule vague in the context of Article 14
In the earlier split verdict, the two judges differed on the legal point of whether the FCU empowered the government to become a final arbiter in its cause. Justice Patel said the Centre could not be a judge in its cause, and Justice Gokhale said that considering a redressal mechanism available for the intermediary as well as for the user, it was the court of law that was the final arbiter of a grievance.
After taking into consideration all aspects, including the basis on which the information related to the business of the central government would be identified for being categorised as either fake, false, or misleading, Justice Chandurkar decided that the exercise to be undertaken by the FCU would result in a unilateral determination by the executive itself.
“By contending that the decision of the FCU can be subjected to challenge before a constitutional court, the same cannot be treated as an adequate safeguard,” he added.
Another facet of the challenge under Article 14 was what would be permissible in the print media would come under regulation in the digital form. The judge said he agreed with Justice Patel that such a distinction resulted in the violation of the Constitution’s Article 14 — equality before law.
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Expressions such as fake and misleading are too wide
Another point of difference in the split verdict was based on the absence of the exact meaning of the expression “fake or false or misleading”.
Endorsing Justice Patel’s view, Justice Chandurkar said that in the absence of guidelines regarding how fake, false, or misleading information will be identified, the three expressions were vague and overbroad.
The word “misleading” can be subjected to various dimensions without any idea being given as to what it would connote, he said.
“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 matter would be left entirely at the unguided discretion of the FCU in (the) absence of any guiding principle in that regard,” he said.
Rule would have a chilling effect
Justice Chandurkar concurred with Justice Patel that under the IT Act, 2000, the Centre could not have created an FCU. Though the Act contemplates rules for providing a procedure and safeguards for blocking access by the public, the rule does not allow the creation of a substantive law beyond the parent law.
Moreover, the judge opined that the amendment of 2023 was not effected in terms of the requirement laid out in the law. The Centre could not show the court that the proposed changes were laid before each of the Houses of Parliament in the manner prescribed in the law.
Further, the future impact of the rule was that it would have a chilling effect on writers and authors and lead to self-censorship.
“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 that context, I, thus, agree with Patel J and opine that the impugned rule being vague and broad, it has the potential of causing a ‘chilling effect’ on that premise,” the judge said while refusing to read down the rule.
(Edited by Madhurita Goswami)
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