Written By: Gaurav Singh
In Kunal Kamra v. Union of India & Ors.,[1] Writ Petition (L) No. 9792 of 2023, the Bombay High Court struck down Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021[2], as amended in 2023 (“Amended IT Rules”). This rule had empowered the Central Government to establish a Fact Check Unit (FCU) under the Ministry of Electronics and Information Technology to identify “fake, false, or misleading” information relating to the business of the Central Government on social media platforms such as Facebook, X, Instagram, and YouTube.
Background:
The Amended IT Rules sought to place an additional compliance burden on intermediaries such as social media platforms, requiring them to take down or label content deemed objectionable by the FCU. On 10 April 2023, comedian Kunal Kamra, along with several media entities, challenged the amendments before the Bombay High Court. The petitioners argued that the Amended IT Rules were arbitrary, vague, and violative of fundamental rights under Articles 14, 19(1)(a) [3], and 19(1)(g) of the Constitution of India. They further contended that the amendments were ultra vires Section 79[4] of the Information Technology Act, 2000 (“IT Act”), which grants safe harbour to intermediaries for third-party content, as well as Section 87(2)(z)[5] and Section 87(2)(zg)[6], which do not empower the Government to establish a fact-checking mechanism.
Union Government’s Submissions
Appearing for the Union Government, the Ld. Solicitor General, Mr. Tushar Mehta, defended the validity of the Amended IT Rules. He submitted that when information concerning the business of the Central Government is found to be fake, false, or misleading, intermediaries are not compelled to take it down. Instead, they have the option of appending disclaimers while still continuing to enjoy “safe harbour[7]” under Section 79 of the Information Technology Act, 2000 (“IT Act”).
The Ld. Solicitor General emphasised that the right to accurate information forms an intrinsic part of Article 19(1)(a). He clarified that the FCU did not act as the final arbiter of truth—the final authority rested with courts of law. Importantly, the remedy of judicial review was not taken away,and any party aggrieved by an FCU determination could still approach a court of law.
Petitioners’ Counter-Arguments
The Petitioners, represented by Ld. Counsel, vehemently rebutted these submissions presented by the Ld. Solicitor General Tushar Mehta. They stressed that the right to accurate information vests in citizens, not in the State, and warned that vesting the Government with pre-emptive powers to brand information as “fake, false, or misleading” amounted to conferring upon the executive a monopoly over truth.
They argued that this not only blurred the constitutional separation between the State and the citizenry in matters of speech but also imposed prior restraints on intermediaries, chilling lawful expression. The Petitioners further contended that terms such as “fake,” “false,” and “misleading” were undefined in the IT Rules, leaving them unconstitutionally vague and susceptible to arbitrary enforcement.
Citing precedents on free speech jurisprudence, it was argued that vague laws which empower the executive with excessive discretion invariably lead to self-censorship, undermining the very fabric of Article 19(1)(a). The Petitioners also emphasized that intermediaries would, in practice, have no real option but to comply with FCU determinations to avoid the risk of losing safe harbour protections, thereby converting a “recommendatory” mechanism into a de facto censorship regime.
Divergence of Judicial Opinions
On 31 January 2024, a Division Bench of the Hon’ble Bombay High Court comprising Justice Gautam Patel and Justice Neela Gokhale delivered a split verdict in Kunal Kamra v. Union of India & Ors.[8]
Justice Patel’s Opinion: Justice Gautam Patel struck down Rule 3(1)(b)(v), observing that it vested excessive powers in the executive to determine the veracity of speech. He highlighted the dangers of censorship and the unconstitutional shifting of responsibility for verifying content from creators to intermediaries. He further underscored the absence of clear guidelines and pointed out the imbalance in privileging grievances concerning government information over other sensitive issues.
Justice Gokhale’s Opinion: In contrast, Justice Neela Gokhale upheld the validity of the Amended IT Rules. She reasoned that the provisions were aimed at curbing misinformation spread with malicious intent while safeguarding freedom of speech. Justice Gokhale held that a law cannot be invalidated solely because of a fear of misuse, stressing that affected parties retained the remedy of approaching courts in cases where their fundamental rights were violated.
The Tiebreaker and Final Ruling
Given this divergence, the Hon’ble Chief Justice D.K. Upadhyay appointed Justice A.S. Chandurkar as the “Tiebreaker Judge.” After examining both opinions, Justice Chandurkar concurred with Justice Patel, thereby striking down Rule 3(1)(b)(v) of the Amended IT Rules.
The Hon’ble Court held that the Amended Rules violated Articles 14, 19(1)(a), and 19(1)(g) of the Constitution. It reasoned that the provisions disproportionately targeted information relating only to the business of the Central Government while failing to provide adequate legal safeguards. Further, the Court declared the amendments ultra vires the Information Technology Act, 2000, noting that the parent legislation did not empower the Government to impose vague and sweeping restrictions on speech.
Particularly, the Court emphasized that the expressions “fake, false, and misleading” remained undefined, thereby conferring unguided and excessive discretion upon the Government. This vagueness rendered the provision unconstitutional as it carried the potential for misuse and arbitrary enforcement.
Broader Implications and Conclusion
The judgment marks a landmark affirmation of free speech in the digital era. While acknowledging the State’s interest in tackling misinformation and deepfakes, the Court held that such regulation must operate strictly within constitutional limits and the framework of the IT Act, 2000. Expediency cannot justify vague or overbroad restrictions that chill legitimate expression.
Two principles are reinforced. First, fundamental rights cannot be curtailed by undefined or sweeping terms; restrictions on speech must be precise, proportionate, and legally grounded. Second, judicial review remains the ultimate safeguard—the authority to determine truth or falsehood cannot rest solely with the executive.
Digital rights groups, who had criticised the FCU as excessive state intervention, welcomed the decision. While both the State and platforms bear responsibility in addressing misinformation, the Court underscored that any regulatory framework must remain tethered to constitutional guarantees.
By declaring the amended Rules ultra vires, the Court reaffirmed that the IT Act was designed to balance intermediary liability and safe harbour, not to authorise censorship. Going forward, the ruling provides a decisive check on executive power and will shape the contours of India’s digital governance, ensuring that the fight against misinformation does not come at the cost of democratic freedoms.
[1]https://www.verdictum.in/pdf_upload/ilovemergedwatermark-1584904.pdf
[2]https://indiankanoon.org/doc/111130067/
[3]https://indiankanoon.org/doc/1218090/
[4]Section 79(1) of the IT Act states that an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by it, provided that it fulfils the conditions prescribed in Section 79(2) and Section 79(3) therein.
[5]Section 87(2)(z) of the IT Act is a clause which allows for the blocking of access to information by the public
[6]Section 87 (2) (zg) of the Act provides the guideline to be observed by the intermediaries under sub Section 2 of Section 79 of the IT Act.
[7]The terminology ‘safe harbour’ as provided under the IT Act refers to the legal immunity provided to the Internet Service Providers (ISPs) and other intermediaries that transmit third-party content on the Internet.
[8]Ibid. (Opinion of Jus ce Neela Gokhale)
