SC issues notice in Union’s appeal on IT Rules 2023
Challenge to the IT Rules 2023Judges: Surya Kant CJI, R. Mahadevan J, Joymalya Bagchi J
Today, the Supreme Court refused to stay the Bombay High Court judgement which held that the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Rules 2023) were unconstitutional. The Rules proposed a Fact-check unit (FCU) for identifying “fake, false or misleading” information about its business on social media platforms. The Bombay High Court had found that the Rules imposed restrictions that were beyond the scope of Article 19(2).
A Bench of Chief Justice Surya Kant and Justices R. Mahadevan and Joymalya Bagchi issued notice in the Union’s appeal and directed that the matter be heard by a three-judge bench. The Bench noted that the issue raised significant constitutional questions, and stated that it would lay down certain governing principles to curb misinformation online.
Solicitor General Tushar Mehta, appearing for the Union, submitted that the amendment was intended to address the spread of misinformation online. “There is no intent to suppress humour, satire or critique,” he said.
Referring to material placed before the Court on misinformation circulating online, CJI Surya Kant stated that such content could be dangerous and could affect public institutions. At the same time, he noted that any regulatory framework would require clearly defined safeguards.
Senior Advocate Arvind Datar, appearing for one of the intervenors, argued that the Rules used terms such as “misleading”, which are not clearly defined. He pointed out that mechanisms, such as Section 69A under the Information Technology Act, 2000 (IT Act), already exist. This permits the government to direct blocking of content through a prescribed process.
Senior Advocate Navroz Seervai, appearing for one of the petitioners, submitted that the amendment had already been examined by the Bombay High Court and that the Supreme Court would now have to decide the issue finally.
Background
On 6 April 2023, the Ministry of Electronics and Information Technology notified amendments to the IT Rules. The amendment required social media intermediaries to make reasonable efforts not to host information relating to the “business of the Central Government” if it had been identified as “fake, false or misleading” by a fact-check unit notified by the Union.
Comedian Kunal Kamra, along with the Editors Guild of India and the Association of Indian Magazines, challenged the amendment before the Bombay High Court. The petitioners argued that the rule violated Articles 14, 19(1)(a) and 19(1)(g) and conflicted with the safe harbour protection available to intermediaries under Section 79.
Bombay High Court’s split verdict
On 31 January 2024, a Bombay High Court Division Bench of Justices G.S. Patel and Neela Gokhale delivered a split verdict on the constitutional validity of the amendment.
Justice Patel held that the amendment was unconstitutional. He observed that the rule effectively allowed the government to determine the truthfulness of information concerning its own affairs. Referring to the language of the provision, he noted that expressions such as “fake” and “misleading” lacked objective limits. “Anything could be said to be ‘fake’. ‘Misleading’ is entirely subjective,” he observed, adding that throughout recorded human history there are “few, if any, absolute truths.”
Justice Patel also expressed concern that social media intermediaries were a “vulnerable segment” because they risk losing their safe harbour protection under Section 79 if they fail to comply with the IT Rules. This, he held, could pressure intermediaries to remove content even where its legality is uncertain and could allow the government to become “the final arbiter not just of what is fake, false or misleading, but of the right to place an opposing point of view.”
Justice Gokhale disagreed. She held that the challenge to the amendment was premature as it was founded largely on apprehensions of potential misuse. She observed that “the impugned Rule merely provides for identification of fake or false or misleading information by a Fact Check Unit.”
The split verdict resulted in no decision on the notification of the FCU. In March 2024, a Bench of the Supreme Court led by CJI D.Y. Chandrachud stayed the notification of the FCU until a tie-breaker judge delivered a decision at the Bombay High Court. On 20 September 2024, Justice A.S. Chandurkar, who was at the Bombay High Court that time, concurred with Justice Patel’s opinion and declared the Rules as unconstitutional.