Challenge to the IT Rules 2023

Case Description

On 6 April 2023, the Ministry of Electronics and Information Technology issued the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Rules 2023). These rules direct social media intermediaries (such as Facebook, Twitter, etc.) to remove any news related to the “business of the Central Government” that is deemed “fake, false, or misleading” by a fact-checking unit established by the Union Government.

On 10 April 2023, comedian and political satirist Kunal Kamra challenged the Rules in the Bombay High Court. Kamra claimed that the formation of a fact-check unit is in conflict with Section 79 of the Information Technology Act, 2000 (IT Act) which is a safe harbour provision for social media intermediaries. It protects them from liability for user-generated content. According to Section 79(3), intermediaries must remove content upon receiving a notification from the Union Government. Under Rule 7, of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, a social media intermediary can lose its safe harbour if it does not comply with the IT Rules. 

Kamra relied  on Shreya Singhal v Union of India (2015), where the Supreme Court  held that notifications to take down content should be issued through a court order. The IT Rules 2023 enables the Union Government to bypass this process and address the social media intermediary directly. Kamra claims that the Union would act as both “the Judge and the Prosecutor.” 

His petition claims that the IT Rules 2023 violate Articles 14,19(1)(a) and 19(1)(g) of the Constitution since they run afoul of principles of natural justice, restrict freedom of speech, and prevent him from engaging in political satire. Here’s some more detail on the specific grounds of the challenge.  

Ground:  Violating freedom of speech and expression

In Shreya Singhal, Section 66A of the IT Act was struck down because it suffered from the ‘vice of vagueness’. In a similar vein, Kamra claimed that the phrase “business of the Central Government” is “overbroad and vague.” Further, the restrictions on speech are beyond the scope of reasonable restrictions under Article 19(2). Last year, in Kaushal Kishore v Union of India, the Supreme Court ruled that these restrictions are exhaustive. Kamra’s  petition argued that broad and imprecise terms would lead to self-censorship by social media users resulting in excessive regulation and suppression of free speech. Moreover, social media intermediaries might opt to remove information to avoid the risk of losing their safe harbour protection. 

Ground: Restricts freedom to carry out profession

Kamra argued that the IT Rules 2023 violate his right to carry out his profession as a political satirist under Article 19(1)(g). He feared that his content was likely to be hand-picked by the Union Government and subject to the fact-check unit, potentially leading to him losing access to social media. He speculated that other political satirists will avoid political commentary. 

Ground: Violates the principles of natural justice 

The IT Rules 2023 do not have any provision for a grievance redressal cell, or any such platform to appeal the flagging or removal of any content by an intermediary. Kamra argues that this would allow the government to flag any content critical of its actions or policies. The lack of an opportunity for users to present their case violates the “right to be heard” under Article 14. He argued that the Union Government encroached upon the domain of the courts, essentially making it the sole arbiter.

Union’s Response 

On 21 April 2023, the Union responded to Kamra’s petition and termed it “premature.” They stated that the Rules were issued in “public interest” to prevent the spread of “false news.” They argued that fact-checking will be carried out on the basis of evidence. Further, all aggrieved persons will have the remedy to approach a court if their information is flagged and taken down. 

On 7 June 2023, the Association of Indian Magazines (AIM) and Editors Guild of India filed a writ petition challenging the IT Rules 2023 in the Bombay High Court. These petitions were clubbed with Kamra’s petition. 

On 29 September 2023, Solicitor General Tushar Mehta submitted that the Fact Check Unit would not be notified until the Bombay High Court rendered its judgement. 

Bombay High Court refuses to put a stay on the notification for formation of fact-check unit

The petition was heard by Justices Gautam Patel and Dr. Neela Gokhale. On 31 January 2024, the Bombay High Court delivered a split verdict. Justice Patel held that the amendment should be struck down. He observed that the fact check unit of the Union government becomes the “sole authority” to decide whether a piece of news or information is true or false. 

“Anything could be said to be ‘fake’,” Justice Patel noted, “ ‘Misleading’ is entirely subjective. And as to ‘truth’ and ‘falsity’, throughout recorded human history, there are few, if any, absolute truths.” Further, he expressed concern that social media intermediaries are a “vulnerable segment” who would comply with take down requests due to the risk of losing safe harbour. This, he argued, “allows the government, through its FCU, to be the final arbiter not just of what is or is fake, false, or misleading, but, more importantly, of the right to place an opposing point of view.” 

He also pointed out that the Union government did not demonstrate how the fact-check unit would “go about its business.” He held that the IT Rules 2023 attempts to expand the exhaustive restrictions and is contrary to Kaushal Kishore and Shreya Singhal. 

In her contrary opinion, Justice Gokhale held that social media intermediaries will not lose their safe harbour. She pointed out that, according to Shreya Singhal, the protection will cease to operate only if the intermediaries fail to take down information which is within the exhaustive limitations under Article 19(2). 

Further, she stated that an aggrieved person can address their grievances and seek remedies.  This would make a competent court the “sole arbiter” and not the Union government. Additionally, she noted  that it was “unfair” to attribute bias to the fact check unit simply because it was appointed by the government. According to her, the challenge was “premature” as it was based on the anticipation of a “potential abuse.”  She also stated that the IT Rules 2023 were for curbing misinformation that is patently untrue. “Political satire, political parody, political criticism, opinions, views etc does not form part of the offensive information,” said Justice Gokhale.   

After the judgement, Kamra approached the Bombay High Court with an Interim Application seeking a stay on the notification of the fact check unit. Earlier, the Union government had given its word that the fact check unit would not be notified until the pending petitions are decided. The matter was placed before Justice A.S. Chandurkar. This application was not concerned with the constitutionality of the amendment. Justice Chandurkar held that notifying the fact check unit would not lead to an “irreversible situation” as any action by the unit would be subject to the validity of the amendment which was still undecided due to the split verdict. 

On 14 March 2024, Kamra approached the Supreme Court appealing this decision of the single judge of the Bombay High Court.

On 20 March 2024, the Union notified the fact check unit. The case will be heard by a bench of Chief Justice D.Y. Chandrachud with Justices J.B. Pardiwala and Manoj Misra. The matter has been listed for 21 March 2024.

On 21 March 2024, the Supreme Court put a stay on the Union’s notification establishing the fact check unit.