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Kunal Kamra v. Union of India: Challenging the Constitutional Validity of the 2023 IT Rules Amendment

Updated: Jul 9

Authored by Kunal Parihar, a 3rd-year law student at National Law School of India University, Bangalore.


Kunal Kamra and The Constitution of India
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Overview

In the case of Kunal Kamra v. Union of India, the petitioners challenged the constitutional validity of a 2023 amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 in the Bombay High Court. This amendment required intermediaries to prevent users from sharing misinformation, especially about the Central Government, as identified by a government fact-check unit (FCU). Justice GS Patel invalidated the amendment, citing violations of constitutional rights and concerns over vagueness and overreach. Conversely, Justice Neela Gokhale upheld it, emphasizing the need for accurate information in democracy and appropriate safeguards. Due to the split verdict, Justice AS Chandurkar did not grant an interim stay on the FCU notification. However, the Supreme Court on March 21st 2024 stayed the notification until the final verdict is given by the Bombay High Court.


While there is a general presumption in favour of the constitutionality of subordinate legislation, it is widely accepted that such legislation can be contested if it exceeds legislative authority or contravenes constitutional provisions. In light of this, it becomes imperative to examine the constitutionality of the amended Rule 3(1)(b)(v) of the IT Rules, 2021, against the fundamental rights guaranteed by the Constitution under Articles 14, 19(1)(a), and 19(1)(g). The ambiguous nature of amendment can lead to inconsistent interpretations and enforcement, creating an environment where intermediaries may over-censor content to avoid penalties. This not only stifles free expression but also hampers the democratic exchange of ideas. Furthermore, without clear procedural safeguards, there is a heightened risk of misuse, where content critical of the government or unpopular opinions could be unjustly targeted. This undermines the fundamental right to freedom of speech and expression, which is vital for the functioning of a healthy democracy. Additionally, the pressure on intermediaries to comply with potentially arbitrary directives can disrupt business operations, infringing on the right to practice any profession or carry on any occupation, trade, or business. Therefore, it is imperative to re-evaluate these amendments to ensure they align with constitutional protections and uphold democratic values.


Article 14: Infringement of the Right to Equality Before the Law

Article 14 guarantees the right to equality before the law. In cases involving discrimination between different classes by legislation, the classification must be scrutinized according to the test held by the courts to determine whether it contravenes Article 14 or not.  As upheld by the Supreme Court in Kathi Raning Rawat as well as Anwar Ali Sarkar case , the test is to check whether the classification has any rational nexus to the purpose sought to be achieved by such differentiation. A distinction should be drawn between discrimination with a valid reason and discrimination without a valid reason. Rule 3(1)(b)(v) of the IT Rules creates two distinct classes with regard to due diligence to be exercised by the intermediaries: 


  1. Towards individuals who post content unrelated to the business of the Central Government: takes into account the awareness of users of the falsity, untruth, and misleading nature of their content, both intention and knowledge elements are considered. There is no involvement of FCU.

  2. Towards individuals who post content related to the business of the Central Government: focuses on the intermediary's allowance of content certified by the FCU as fake, false, or misleading. Here, the intention and knowledge of the user do not matter, and FCU has the final say on the matter.


The disjunctive ‘or’ separates FCU-identified content related to the “business of the Central Government” and certified as “fake, false, or misleading” into a separate category. Immediate loss of safe harbour occurs if this type of content is not removed. The creation of such a second category or class by the Rules violates Article 14 because it discriminates without a valid reason or intelligible differentia. 


Firstly, the FCU is not obligated to consider the intent behind the circulated information. This will lead to arbitrary content takedowns, without regard for intent or knowledge, and without providing justification beyond a mere assertion of falsehood, which is concerning.


Secondly, the Rules lack procedural due process, granting the Central Government unilateral authority to determine the veracity of all content related to its affairs. This makes the government the sole judge, immune to questioning, which could suppress criticism and dissent. Such vesting of powers goes against the principles of natural justice without giving the other side a right to a fair hearing.


Thirdly, The term "business of the Central Government" lacks clarification, leaving room for broad interpretation. The government could potentially label any activity within its executive powers as its business. Such ambiguity cannot be allowed to encroach upon rights guaranteed under the Constitution. Moreover, there is no justification as to why the “business of the Central Government” should be treated differently from other information. Merely stating that there is a likelihood of speculation, misconception, and one-sided information is insufficient. This assertion applies equally to any entity or information source. Any claim that the Central Government is uniquely vulnerable and unable to defend itself is also untenable. With access to vast information resources and wide-reaching dissemination capabilities, the Central Government holds considerable power. It is worth noting that the same authority capable of shutting down the internet in a region cannot credibly claim vulnerability in this context.


According to the doctrine of vagueness, as emphasized by the Supreme Court in Shreya Singhal, when no reasonable standards are prescribed, such a section would be deemed manifestly arbitrary and would be struck down. The 2023 Amended Rules appear excessive, disproportionate, unreasonable, discriminatory, and biased, failing to ensure equal treatment of all information.


Article 19(1)(a): Infringement of Right to Freedom of Speech and Expression

The right to share ideas is fundamental to freedom of speech and expression. Citizens can publish and disseminate ideas verbally or in writing. In 2017, the UN criticised a German law for over-regulation, warning it threatened online information access. Similarly, the 2023 Amended IT Rules by the Central Government risk overreach. Section 69A of the IT Act empowers the Central Government or its authorised officers to block public access to any information in the interest of India's sovereignty, integrity, defence, security, foreign relations, or public order. The order needs to be in writing, stating the reasons, and directed at any government agency or intermediary to block the specified information. However, with the Amended rules, the FCU can deem content fake and compel removal without providing written reasons, bypassing the mandatory requirement under Section 69A of the Act. This undermines the role of intermediaries in supporting free expression. Viewers also have the right to independent thought and informed decision-making free from state coercion, as affirmed in Srishti School of Art, Design v. The Chairperson. The amended IT Rules adopt a paternalistic approach, restricting users' freedom to express opinions by labelling them as fake and establishing state monopoly over the 'true' portrayals of events.


The constitutionality of restrictions under Article 19(2) hinges on the proportionality test, as exemplified in the Modern Dental College case. This test evaluates restrictions based on whether they have a legitimate goal, are suitable for achieving it, impose minimal restrictions, and do not disproportionately impact the right holder. Applying this framework to the new Amended IT Rules reveals that they unreasonably curtail freedom of speech and expression under Article 19(1)(a).


A. No Legitimate Goal:

Article 19(1)(a) guarantees free speech and expression, but Article 19(2) allows limitations only on specific grounds. In ADR v. UOI, the Supreme Court used the proportionality test to deem electoral bonds unconstitutional, dismissing the government's justification of curbing black money as it did not fall under Article 19(2). Similarly, restrictions based on vague accusations of ‘fakery’ or claims of 'public interest' do not meet the criteria of Article 19(2). Thus, preventing fake information is not a legitimate aim to restrict fundamental rights.


B. No Suitable Means:

Removing content labelled as "fake, false, or misleading" by the FCU is ineffective. The content can be reposted or spread through other means, making such removals impractical. Implementing Rule 3(1)(b)(v) and establishing the FCU are not suitable methods to address misinformation.


C. No Necessity:

Measures should impose minimal restrictions on fundamental rights, with no less restrictive alternatives available. The Press Information Bureau (PIB) already addresses misinformation, making an additional 'Fact-Check Unit' unnecessary. The new agency's power to determine 'truth' and mandate content removal threatens intermediaries' statutory protections. Therefore, such coercive measures are unnecessary.


D. Disproportionate Impact on Right-holders:

Restrictions should balance the importance of the goal with the extent of the impact on fundamental rights. Freedom of expression should only be restricted for urgent and clear threats, not speculative dangers. Here, the right to speech and expression outweighs the government's vague goal of combating fake news. The government's approach may lead to undue curtailment of citizens' rights without room for debate, dissent, or satire, failing the proportionality test.


Article 19(1)(g): Infringement of the Right to Practice Any Profession, or to Carry on any Occupation, Trade, or Business

When publishing content involves commercial risk for the intermediaries, such as the potential loss of safe harbour protections, prioritizing risk avoidance becomes common practice by adhering to the rules and regulations. They engage in self-censorship out of fear of facing such repercussions. Such censorships are not permissible and lead to the State wielding a Heckler's veto, stifling freedom of speech at its convenience, giving a ‘chilling effect’. As a result, intermediaries and likewise journalists will not be able to conduct their business freely, as they are compelled to display biased content favouring the government.


Intermediaries have a legitimate expectation of statutory safe harbour under the IT Act if they comply with its provisions, while journalists anticipate the freedom to report information fairly and freely. Public authorities are bound to act in the public interest and must consider the reasonable expectations of those affected before imposing restrictions. However, the vague and arbitrary nature of the 2023 Amended Rule leads to non-compliance and invokes Rule 7, denying intermediaries the crucial safe harbour protection necessary for their operations. Similarly, journalists find their content taken down without a fair hearing, undermining their ability to report freely.


In Monnet Ispat and Energy Ltd. v. Union of India, the Supreme Court ruled that legitimate expectations can only be overridden in the public interest under Article 19(6). However, the Central Government's justification in this case is solely to prevent fake information about government affairs. Without clear guidelines for combating fake news, vague claims of public interest lack justification. A legislation that excessively infringes on rights cannot be considered reasonable unless it strikes a proper balance between the freedoms guaranteed in Article 19(1)(g) and the social control allowed by Article 19(6).


Conclusion

The 2023 amendment to the IT Rules raises significant constitutional concerns. By mandating intermediaries to remove content flagged by a government fact-check unit, it infringes upon fundamental rights under Articles 14, 19(1)(a), and 19(1)(g). The amendment's vague terms, lack of procedural safeguards, and potential for arbitrary enforcement undermine the principles of equality, free speech, and professional autonomy. The interim stay on the FCU notification by the Supreme Court underscores the need for careful judicial scrutiny to ensure that any regulation of digital content aligns with constitutional mandates and preserves democratic freedoms.

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