On September 26, 2023, Justice Atul Chandurkar of the Bombay High Court delivered his “tiebreaker” judgement in Kunal Kamra V. Union of India (Kunal Kamra Judgement), ruling that Rule 3(1)(b)(v) (Impugned Rule) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules) is unconstitutional. The Impugned Rule sought to notify a “Fact Check Unit” (“FCU”) that would have the power to notify any information pertaining to “the business of the government” as “fake, false and misleading." This, in effect, would hold the social media intermediaries such as YouTube or Facebook liable for hosting any posts notified as “fake, false or misleading” by said FCU.
Previously, in the first part of this article, we discussed how the Kunal Kamra Judgment highlights a consistent failure to incorporate Supreme Court’s jurisprudence on online speech and delved deep into how the vagueness of the provision would have a chilling effect on citizens and their fundamental right to freedom of speech under Article 19 of the Constitution.
In part 2, we continue to discuss the grounds for challenging the Impugned Rule and trace the history of its adjudication in the context of the internet, specifically with regard to the doctrine of proportionality.
The petitioners argued that the Central government violated principles of natural justice by establishing a government-controlled FCU to verify the accuracy of user-posted content related to the "business of the Central government." They contended that the lack of procedural clarity and the absence of provisions for a hearing under the Impugned Rule are contrary to established principles of natural justice. The Court, in agreement, highlighted that the Press Information Bureau (PIB) already has an effective mechanism for identifying false or misleading information about government policies, making the FCU redundant for determining the truthfulness of government-related content on online platforms.
By emphasizing on principles of natural justice, the Court underscored the procedural deficiencies in the Impugned Rule, noting that it lacks specific guidelines for FCU operations, the procedure for raising objections, and opportunities for individuals to contest the designation of content as false, misleading, or fake. Additionally, the Impugned Rule provides no defined redressal mechanism, leaving individuals without a reliable means to challenge unfavourable FCU rulings, further violating principles of natural justice.
As the Court rightfully pointed out, the government, vide the Impugned Rule, has appointed itself as the sole arbiter of what is “fake, false and misleading”, and when the intermediary rejects the dictum of the State by continuing to host the content, it immediately risks losing the safe harbour.
The aphorism that best summarises the doctrine of proportionality was coined by J. Diplock in 1983 [R. V. Goldsmith (1983) 1 WLR 151, 155] – “You must not use a steam hammer to crack a nut if a nutcracker would do” meaning that, if restrictions on fundamental rights become imperative, the State must take the least restrictive avenue possible. In the context of Article 19, the Supreme Court in Anuradha Bhasin V. Union of India (“Anuradha Bhasin Judgment”) has articulated the application of the doctrine of proportionality by stating that “...the necessity to restrict the citizen’s freedom … the possibility of achieving the object by imposing a less drastic restraint … or that a less drastic restriction may ensure the object intended to be achieved.”
Justice Patel’s judgement in Kunal Kamra Judgment relies on the Anuradha Bhasin Judgement to state that the doctrine of proportionality is a fundamental doctrine of constitutional law, revolving around five parameters:
The law restricting fundamental rights must have a legitimate State aim.
There must be a rational connection between the measure, the factual situation and the aim of the statute.
Measures must be shown to be necessary and not more excessive than needed.
The necessity of measures to protect legitimate interests mut be established.
Sufficient safeguards against abuse of such restriction must be provided by the State.
The majority in Kunal Kamra Judgment, while checking the vires of the Impugned Rule, holds that it has failed all the five tests mentioned above.
The government, by the way of Impugned Rule, gave itself autonomy to regulate free speech. It is worth noting that the circulation of misinformation and fake news is an issue that requires a cohesive policy response rather than a mere legislative enactment.
In Kunal Kamra Judgment, the Union of India before the Bombay High Court submitted that there already exists an FCU within the PIB – albeit without the powers prescribed to it under the 2023 amendment to IT Rules. In light of this, the question on the policy front really becomes - what is stopping the Union of India from holding the intermediaries liable for not publishing the PIB fact check report below the alleged “fake news” post?
Currently, YouTube, in videos that talk about COVID-19, has a link providing specific government-curated information resources (as recommended by the Ministry of Health and Family Welfare) to prevent the promulgation of misinformation. This solution is proportionate, effective and constitutional, and this solution could easily be replicated without legislative changes. However, the government’s current mechanism under the Impugned Rule of curtailing "fake, false and misleading” content is unconstitutional for being disproportionate to the matter at hand and falling foul of the five criteria enumerated above.
From the above, it is possible to infer a pattern of policy failures that constantly put citizens in a position to rap the doors of the Constitutional courts. The application of the Anuradha Bhasin Judgment is another great example of internet governance failure in the context of Article 19. The judgement emphasised that the government must apply the doctrine of proportionality when ordering internet restrictions, recognizing internet access as integral to Article 19(1)(a) and (g). Nonetheless, four years on, frequent shutdowns continue - disrupting e-commerce, information access, and navigation for issues as minor as protests or examinations. This normalization of shutdowns indicates a disconnect between governance policy and constitutional protections, impacting citizens' daily exercise of their rights.
In the contemporary world, States grapple with balancing freedom of expression under Article 19(2) and competing social interests. Freedom of expression demands that restrictions must address immediate pressing dangers, not remote or hypothetical risks. Any curtailment should only occur when public welfare is genuinely at stake. Yet, as civil rights groups and concerned citizens repeatedly defend Article 19, the judiciary is burdened with disputes over policy challenges, making internet policy reform a costly, time-consuming process. As India moves further into its digital age, it is essential that governance policy aligns more closely with judicial standards on internet restrictions. Hopefully, as India progresses and embraces its digital age; governance policy will find cohesion with the court’s rulings on the constitutionality of internet legislation.
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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