ARTICLE
9 January 2025

An Analysis Of Kumal Kamra v. Union Of India – Part III

Saga Legal

Contributor

Saga Legal, founded in 2016, is a multi-service law firm providing a wide gamut of legal services in diverse areas of practice, ranging from dispute resolution to corporate advisory, the firm provides manifold legal solutions to its valued clients under one roof.
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 ...
India Government, Public Sector

INTRODUCTION

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 ("Rules") was challenged. The case was heard by a Division Bench consisting of Justice GS Patel and Justice Dr. Neela Ghokale.

The judgement delivered by Justice G.S. Patel struck down the Amendment, whereas the judgment delivered by Justice Dr. Ghokale upheld the Amendment. For a more comprehensive understanding of the said judgement, you can read Part I and Part II of this series, which covers our analysis thereof.

Since, Justice G.S. Patel and Justice Dr. Gokhale had expressed opposing views, the case was referred to Justice A.S Chandurkar ('Reference Court'), as per Clause 36 of the Letters Patent to render an opinion on the points of difference in the split verdict ("Reference"). In this article, we will analyse the opinion delivered by the Reference Court and its ramifications.

INTERIM RELIEF

In an interesting turn of events, while the Reference Court was considering the Reference, the Petitioners prayed that the statement made by Ld. Solicitor General before the Division Bench that the Fact Checking Unit ('FCU') contemplated under the Rules would not be notified until the final disposal of the case, be continued till the disposal of the Reference. However, the Reference Court vide it's order on March 11, 2024 turned down said prayer. Consequently, Union of India issued a notification dated March 20, 2024 constituting the FCU as contemplated under the Amendment. The said Order rejecting the prayer of interim relief was assailed before the Apex Court, and the same was set aside on March 21, 2024 whereby the operation of the said notification constituting FCU was stayed.

THE TIEBREAKER OPINION

The Reference Court in agreement with Justice Patel opined and upheld the striking down of the Amendment to Rule 3(1)(b)(v) of the Intermediary Rules. The Reference Court, gave its opinion on the points on which the judges of the Division Bench had differed largely being (i) vagueness of the Amendment in context of Article 14, (II) Constitutionality of the Amendment in the context of Article 19(1) (a) and 19(g), (III) legality of the Amendment in terms of Sections 87(2)(g), 87(2)(zg) and 87(3) of the Information Technology Act, 2000 ("Act"), (IV) the interpretation of expressions such as 'knowingly and intentionally communicates', 'fake, false and misleading' and (V) the 'chilling effect' of the Amendment.

The Reference Court opined that there is neither any right to the truth couched under the right to freedom of speech and expression, nor does the said right confer any responsibility on the State to ensure that citizens are only entitled to information that is not 'fake, false or misleading'. Hence, the Reference Court reached a conclusion that such restrictions are violative of reasonable restrictions provided under Article 19(2) of the Constitution.

It is also pivotal to highlight that the Reference Court while keeping individual autonomy on a higher pedestal, expressly held that the discretion provided to the State to act as the sole arbiter of truth in its own cause i.e., in relation to the 'business of the Central Government' is in contravention of the equality clause under Article 14 of the Constitution. Furthermore, the distinction between print and digital media brought forth by the Amendment was also held to be violative of Article 14 of the Constitution.

While endorsing the view of Justice Patel on the Amendment being ultra vires of the Act, the Reference Court held that the Amendment has not been effected as required under Section 87(3) of the Act. The Reference Court agreed with the finding of Justice Patel that the Amendment in essence created substantive law beyond the Act, and it does not relate to anything permissible under Section 69A and/or Section 79 of the Act.

The Reference Court was also of the view that the Amendment was broad and vague, without any adequate safeguard to determine the extent of the control that can be placed by the FCU on information disseminated through intermediaries. Hence, it was held that the unbridled and capricious powers of the proposed FCU had the potential of causing a 'chilling effect' qua the intermediaries and therefore, would render the Amendment unconstitutional.

The Reference Court had also considered the five-fold test laid down by the Apex Court in Gujarat Mazdoor Sabha v. Union of India, to hold that the Amendment failed the test of proportionality in view of the absence of sufficient safeguards against the abuse of the Rules that tend to interfere with the fundamental rights guaranteed under Article 19(1)(a) and 19(1)(g) of the Constitution. It merits mention that the Reference Court negatived the contention of the Union of India that the Amendment being the least restrictive mode to prevent 'fake, false or misleading' information can be 'read down' instead of being struck down in toto.

CONCLUSION

The debate sparked by the case of Kunal Kamra v. Union of India marks a crucial development in the ongoing discourse surrounding digital content regulation in India. The case raises significant questions regarding the balance between public interest and individual fundamental rights in this digital age.

The Opinion of the Reference Court has underscored the fact that while the State can enact laws to curb misinformation or abridge the fundamental rights guaranteed under Article 19, such laws must satisfy the proportionality test and have to be in consonance with the protection provided by the Constitution. While the intention behind the Amendment may stem from a need to combat misinformation in an era where news spreads like wildfire, it also raises rather critical concerns regarding the potential impact that such regulations may have on rights guaranteed under the Constitution.

Therefore, even though the case raised significant questions regarding freedom of speech, the role of the State in content regulation, and the future of digital platform oversight, it has also highlighted the inherent inadequacy of the law to regulate digital media without compromising on individual liberty.

Ishikaa Seth, Intern, provided assistance and helped with research.

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 judgment passed in Kunal Kamra v. Union of India. 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.

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More