Case Note & Summary
The present proceedings arise from a reference made under Chapter-I Rule 7 of the Bombay High Court Appellate Side Rules, 1960 read with Section 98 of the Code of Civil Procedure, 1908 and Clause 36 of the Letters Patent, to resolve differences of opinion between two judges of a Division Bench regarding the validity of Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, as amended on 06/04/2023. The petitioners, including Kunal Kamra, Editors Guild of India, and Association of India Magazines, challenged the Rule which requires intermediaries to remove fake or false or misleading information. The Division Bench had split: Justice G.S. Patel struck down the Rule as ultra vires Articles 14, 19(1)(a), 19(1)(g) of the Constitution, Section 79 of the Information Technology Act, 2000, and principles of natural justice, while Justice Dr. Neela Gokhale upheld its validity. The reference court, presided over by Justice A.S. Chandurkar, heard submissions from all parties. The petitioners argued that the Rule is vague, overbroad, and has a chilling effect on free speech, violating Article 19(1)(a) and Article 19(1)(g). They also contended that it violates Article 14 by making the government the final arbiter and is ultra vires the parent Act. The Union of India defended the Rule as a reasonable restriction under Article 19(2) to combat misinformation and protect public order. The court analyzed the scope under Clause 36 of the Letters Patent and identified points of difference. It held that the Rule does not violate Article 19(1)(a) as it falls within reasonable restrictions under Article 19(2) and is not vague or overbroad. The court also found no violation of Article 19(1)(g) or Article 14, and that the Rule is not ultra vires Section 79 of the IT Act. Applying the proportionality test, the court concluded that the Rule is proportionate and does not have a chilling effect. The court also rejected the argument that the Rule violates natural justice. Consequently, the reference court upheld the validity of the amended Rule, agreeing with the opinion of Justice Dr. Neela Gokhale.
Headnote
A) Constitutional Law - Freedom of Speech and Expression - Article 19(1)(a) and Article 19(2) of the Constitution of India - Validity of Rule 3(1)(b)(v) of IT Rules, 2021 - The court examined whether the amended Rule requiring intermediaries to remove fake or false or misleading information violates Article 19(1)(a). The majority opinion held that the Rule is not violative as it falls within reasonable restrictions under Article 19(2) and is not vague or overbroad. (Paras 27-36) B) Constitutional Law - Right to Practice Profession - Article 19(1)(g) read with Article 19(6) - The court considered whether the Rule infringes the right of digital media to carry on business. It held that the Rule does not violate Article 19(1)(g) as it is a reasonable restriction in the interest of public order and decency. (Paras 37-38) C) Constitutional Law - Equality Before Law - Article 14 - The court rejected the argument that the Rule violates Article 14 by making the government the final arbiter in its own cause, finding that the Rule provides for a grievance mechanism and is not arbitrary. (Paras 39-40) D) Information Technology - Intermediary Liability - Section 79 of the Information Technology Act, 2000 - The court held that the amended Rule is not ultra vires Section 79 as it falls within the exceptions under Section 79(3)(b) read with Article 19(2) and does not impose absolute liability. (Paras 45) E) Administrative Law - Principles of Natural Justice - The court found that the Rule does not violate natural justice as it provides for a notice and hearing mechanism before removal of content. (Paras 46-48) F) Constitutional Law - Doctrine of Proportionality - The court applied the proportionality test and held that the Rule is proportionate to the aim of combating misinformation and does not have a chilling effect on free speech. (Paras 53-55)
Issue of Consideration
Whether Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 as amended on 06/04/2023 is ultra vires Articles 14, 19(1)(a), 19(1)(g) of the Constitution of India, Section 79 of the Information Technology Act, 2000, and principles of natural justice.
Final Decision
The reference court, per A.S. Chandurkar, J., upheld the validity of Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 as amended on 06/04/2023, agreeing with the opinion of Dr. Neela Gokhale, J. The court held that the Rule is not violative of Articles 14, 19(1)(a), 19(1)(g) of the Constitution of India, Section 79 of the Information Technology Act, 2000, or principles of natural justice. The Rule was found to be a reasonable restriction under Article 19(2) and proportionate to the aim of combating misinformation.
Law Points
- Article 19(1)(a) and Article 19(2) of the Constitution of India
- Article 19(1)(g) read with Article 19(6)
- Article 14
- Section 79 of the Information Technology Act
- 2000
- Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules
- 2021
- Principles of Natural Justice
- Doctrine of Proportionality
- Overbreadth and Vagueness
- Chilling Effect
- Reading Down
- Ultra Vires
