An Analysis of Kunal Kamra vs Union of India - Part II

On January 31, 2024, The Bombay High Court vide its judgment in Kunal Kamra v. Union of India and connected matters, pronounced a split verdict wherein the constitutional validity of the 2023 amendment to Rules 3(1)(b), 3(1)(b)(v) and 7 (the “Amendment”) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the “Intermediary Rules”) was challenged.

The case was heard by the Division Bench consisting of Hon’ble Justice GS Patel and Hon’ble Justice Neela Ghokale.

Our earlier article dealt with the challenges against the Amendment and the judgement delivered by Hon’ble Justice GS Patel, who struck down the Amendment. This article will summarize the judgment delivered by Hon’ble Justice Neela Gokhale, who upheld the Amendment.

The respondent i.e., the Union of India, argued that the aim of the amendment is to devise a mechanism for curbing the spread of evidently false, concocted, and erroneous information through distorted means by using digital platforms. It was contended that the public has a right to receive information which is authentic. The Union argued that the removal of protection under Section 79 of the Information Technology Act, 2000 (Act) by way of this Amendment would only apply if any false or misleading information is intentionally continued to be communicated,  and does not place any restrictions on freedom of speech and expression.

It was further contended that the Fact Checking Unit (FCU) under the Amendment aims to provide a mechanism to identify and address false or misleading information which will help maintain the integrity of public discourse and democratic processes. This helps protect the rights of individuals and intermediaries, ensuring that any action taken is based on a thorough examination of the facts. Furthermore, it was argued that the State, being the authority responsible for various aspects of governance and policy-making, is in the best position to provide authentic information about the business of the Government. It was also contented that curbing of false information falls within the ambit of Article 19(2) of the Constitution.

The Court observed that in the absence of any mechanism to verify information, the constitution of the FCU would help identify the veracity of information which is intentionally communicated in respect of government business. The Court explained that the working of the FCU, as per the Intermediary Rules, is that of identification of information related to any business of the government shared via intermediaries. There is no authority or power granted to the FCU to direct the intermediary to take down any such information, the Court noted. The discretion is with the intermediary to do the same and the person who is aggrieved with any such decision can approach the Grievance Redressal Mechanism as envisaged under the Intermediary Rules. The Court further observed that if there is any grievance with regard to the functioning of the FCU, then an aggrieved person can approach a Court of law for the same.

The Court observed that there is no ‘chilling effect’ on the freedom of speech and expression in the present case. The Amendment solely refers to false and misleading information which is shared with mala fide intention and does not include opinions expressed by an individual. Further, if any grievance arises from the categorization of information by the FCU, then an individual can raise their grievances with the competent authorities. The Court held that the Amendment was enacted to curb the spread of false information and not to curb differences of opinions on policies or facts. The Court observed that the words - fake, false and misleading - with regard to information are to be understood in its ordinary sense, and do not refer to satires, parodies, commentaries etc., and hence cannot be termed as vague. The Court also held the vagueness of the term ‘Business of the Government’ cannot be a reason in itself to strike down the Amendment, when it is in fact the government which is in the best position to provide authentic information about the conduct of its business.

The Court relying upon the decision of the Apex Court in Justice K.S. Puttuswami and Anr vs. Union of India and People’s Union for Civil Liberties vs. Union of India held that the impugned Amendment meets the test of proportionality and is within the ambit of reasonable restrictions under Article 19(2). 

The Court while upholding the Amendment has categorically held that the same comes within the ambit of Article 19(2) and does not in any manner infringe the right to freedom of speech and expression. The Court emphasized that dissemination of one-sided information, disinformation, and misinformation collectively contributes to an uninformed citizenry, undermining the integrity of democracy. The conclusion is that these forms of information distortion collectively diminish the effectiveness of democratic processes.

The Court held that the Intermediary Rules has its own procedure for grievance redressal and a user, if aggrieved by flagging of information as fake, false or misleading by the FCU under the Amendment, can approach the grievance redressal mechanism and only a competent court who has jurisdiction can be the final arbiter of any such grievance, and not the government. 

The Court further held that the Amendment does not penalize either the intermediary or the user without the recourse to a court of law. The qualification of information is based on knowledge and intent and no content is restrained by the Amendment unless the same is false or erroneous.  The Court reiterated that the words ‘fake’ and 'false’ are to be understood ordinarily and should be shared with a mala fide intent. The Court carefully considered the fact that the FCU’s task is to know the correctness of the information about the business of the government, and not to take down any information. The Court emphasized that if information which is false, fake and misleading is knowingly shared with mala fide intentions, then the same affects the citizen’s right to participate in a democratic environment, since access to true and authentic information is of utmost importance.

About the authors: Ishwar Ahuja is a Principal Associate and Rahul Saxena is a Senior Associate at Saga Legal.

Disclaimer: The views and opinions expressed in this article are those of the author(s) alone and meant to provide the readers with understanding of the judgement passed in Kunal Kamra v. Union of India and issues relating to the constitutional validity of the 2023 Amendment to the IT intermediary Rules, 2021. The contents of the aforesaid article do not necessarily reflect the official position of Saga Legal. The readers are suggested to obtain specific opinions/ advise with respect to their individual case(s) from professional/ experts and not to use this article in place of expert legal advice.