The Bombay High Court's judgment arises from a split decision on the constitutionality of amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, specifically Rule 3(1)(b)(v), which imposes obligations on intermediaries to curb "fake or misleading information" about the Central Government's business. The two-judge bench—comprising Justice G.S. Patel and Justice Dr. Neela Gokhale—delivered divergent opinions, leading to a reference before a third judge under Clause 36 of the Letters Patent of the Bombay High Court.

Justice Patel struck down the amendment as ultra vires the Constitution of India, citing violations of Articles 14, 19(1)(a), 19(1)(g), and Section 79 of the IT Act, 2000. Conversely, Justice Gokhale upheld its validity, asserting that the restrictions were reasonable and consistent with Article 19(2). The third judge is expected to resolve this constitutional conflict.

1. Introduction:

• Petitioners: Kunal Kamra, Editors Guild of India, and Association of Indian Magazines.
• Respondents: Union of India, Ministry of Electronics and Information Technology, Ministry of Law and Justice.
• Key Issue: Validity of the amended Rule 3(1)(b)(v) of the IT Rules, 2021, which governs how intermediaries handle content related to "fake, false, or misleading" information about the business of the Central Government.

2. Key Legal Provisions Involved:

• Articles 14, 19(1)(a), 19(1)(g) (Freedom of Speech and Equality)
• Article 19(2) (Reasonable Restrictions on Free Speech)
• Section 79 of IT Act, 2000 (Exemptions for intermediaries)

3. Petitioners' Arguments:

• Violation of Fundamental Rights: Rule 3(1)(b)(v) infringes upon the right to free speech under Article 19(1)(a). It lacks sufficient safeguards, including the right to a hearing, and the government's power to determine "false or misleading" information is vague and arbitrary.
• Chilling Effect: The amended rule would create a chilling effect on digital platforms, limiting free speech, particularly criticisms of the government.
• Class Legislation: The rule singles out "the business of the Central Government," excluding other bodies like state governments, violating Article 14.
• Ultra Vires: The petitioners argued that the rule exceeded the scope of the IT Act, 2000, especially when read with the Supreme Court's judgment in Shreya Singhal vs. Union of India.

4. Respondent's Defense (Union of India):

• Necessity of Rule: The rule is essential to curb misinformation that could mislead citizens, especially about the government's activities.
• Proportionality: The rule follows the principle of minimum intrusion and proportionality, as intermediaries are not penalized directly but encouraged to take "reasonable steps."
• Disclaimer Option: The government argued that intermediaries have the option of issuing a disclaimer rather than taking down content.

5. Divergent Opinions of the Judges:

• Justice G.S. Patel: Struck down the amendment, asserting that it violates free speech rights and is vague. He emphasized the overbroad nature of the rule, its chilling effect on expression, and its inconsistency with Shreya Singhal.
• Justice Dr. Neela Gokhale: Upheld the amendment, ruling that it passed the tests of reasonableness and proportionality. She emphasized that the government has a right to prevent the spread of false information affecting its business.

6. Pending Issues:

• Supreme Court Involvement: The Supreme Court has stayed the operation of the Fact-Check Unit (FCU) until the final resolution of the matter in the High Court.

Acts and Sections Discussed:

1. Articles 14, 19(1)(a), and 19(2) of the Constitution – Protection of Free Speech and its limitations.
2. Section 79 of the IT Act, 2000 – Intermediary liability and safe harbor provisions.
3. IT Rules, 2021 (Amendment 2023) – Focus on intermediary responsibilities in curbing misinformation.

Ratio Decidendi:

The core legal question revolves around whether Rule 3(1)(b)(v) is ultra vires the Constitution and IT Act, 2000. The judiciary needs to balance the State's interest in curbing misinformation with the need to protect free speech in the digital space.

Subjects:

Digital Media, IT Rules 2021, Free Speech, Constitutional Law, Intermediary Guidelines, Misinformation, Fundamental Rights, Bombay High Court Judgment.