While dismissing the petitions challenging the Information Technology Rules 2023, Justice Neela Gokhale observed that the measures adopted by the Government are consistent with the object of the law and that "the impact of the encroachment on fundamental right is not disproportionate to the benefit which is likely to ensue."

Calling the challenge to a 'potential abuse' by the proposed Fact Check Unit (FCU) pre-mature, Justice Gokhale also noted that the charter of the FCU, the extent of its authority, the manner of its functioning in ascertaining fake, false or misleading information, etc, is yet unknown. Moreover, in case of any actual bias exhibited by the FCU, recourse to the courts of law is always open to the aggrieved person, she said.

Submissions of Solicitor General Tushar Mehta

Arguing on behalf of the Union of India, Solicitor Tushar Mehta said the contention of the petitioners that the government has arrogated to itself the power to decide and is thus the sole arbiter of what is false, fake, or misleading, is fallacious and imaginary.

Referring to the internet and the social media phenomenon, Mr Mehta submitted that the medium which is sought to be regulated by the impugned Rule has the largest possible reach within and beyond the country as compared to other medium of communication. The said medium is anonymous but all-encompassing and transcends boundaries of nations. The government apprehends a serious potential of devastating public mischief; creation of law and order, public order, national security situations and spreading chaos in the country that requires regulations within the scope and ambit of Article 19(2) of the Constitution, he said.

As for the FCU proposed under the impugned rule, Mr Mehta said it merely provides for identification of fake or false or misleading information by a FCU where such information which is knowingly and intentionally shared via an intermediary.

The only consequence is a wide dissemination of a public announcement that such information is either fake or false or misleading, to enable the intermediary to employ due diligence. Once the intermediary is made aware of such information, it has the sole discretion to either take steps to prevent its further spread or to continue to host the same with a disclaimer regarding such information, Mr Mehta argued.


Addressing the fear expressed by the petitioners of the impugned Rule having a "chilling effect" on a citizen's right to circulate information in the form of news, opinion, political satire etc., Justice Gokhale observed-

"First and foremost, a plain reading of the Rule does not indicate any direct implication of an intermediary. Unlike the wording of Section 66A of the IT Act which was struck down in Shreya Singhal vs Union of India, the impugned Rule does not directly penalize either the intermediary or the user, without recourse to a Court of law. Rule 3A even as it existed prior to the amendment, provides for a Grievance Redressal Mechanism of the intermediary which include a Grievance Officer and an Appeal to a Grievance Redressal Committee, which is mandated to resolve the complaint of any aggrieved person, in a time-bound manner. The impugned Rule contains sufficient procedural safeguards. Furthermore, Clause (n) of the same due diligence Rule mandates the intermediary to respect all the rights accorded to the citizens under the Constitution, including Articles 14, 19 and 21."

Moreover, with regard to the specific grievance of comedian Kunal Kamra that the impugned Rule violates his fundamental right to practice his profession under Article 19(1)(g), Justice Gokhale said-

"As a political satirist, he necessarily engages in commentary about actions of the Central Government and its personnel. He says that his ability to engage in political satire will be unreasonably and excessively curtailed, if his content were subjected to a manifestly arbitrary fact check. In the scheme of the Rule, this apprehension of the Petitioner is sufficiently taken care of. Mere flagging of information as offensive under the Rule does not necessarily prompt action. The immunity under Section 79 of the Act continues to apply if the intermediary observes due diligence while discharging its duties under the Act and observes such other guidelines as the Central Government may prescribe in this behalf."

On the question as to who is to decide what is fake or false and what is authentic, Justice Gokhale said- "But more pertinent is the question as to whether breach of constitutional morality arising out of 'manipulation of information' needs urgent deterrence and whether the impugned Rule termed as, 'State imposed limits' as a way to combat this, itself is a breach. The entire canvass of the petitioners is based on an apprehension that the amendment reveals an intent of the Government to seize 'control of digital media'. There is no quarrel with the fact that a citizen is entitled to question the government, its decisions, especially if any decision is likely to affect the rights guaranteed him by the Constitution."

Then she referred to the "present and apparent danger of the spread of fake, false, patently untrue, misinformation" and said the same cannot be denied, calling for "ways and means to combat the malaise."

Justice Gokhale explained that the contest before the Court is a challenge to the shape, manner, and form of the impugned Rule and not a 'battle for control over digital content'.

"A citizen is entitled to his right of free speech as all other rights guaranteed by the Constitution. But can one canvass a right to share misinformation or fake content without being met with a resistance by the administration, on behalf of and in the interest of the rest of its citizen, is a question that can be answered only in the negative."

Furthermore, Justice Gokhale noted that there is no intermediary before the court complaining of a 'chilling effect'.

"In these circumstances, none of the intermediaries have assailed the impugned Rule. Be that as it may, the Rule plainly read merely targets misinformation, patently untrue information, which the user knows to be fake, or false or misleading and yet is communicated with a mala fide intent. The qualification to the offensive information is knowledge and intent. Political satire, political parody, political criticism, opinions, views etc does not form part of the offensive information. Then too, if such content is wrongly flagged by the FCU, it is always open to the user/aggrieved person to raise a complaint before the redressal mechanism of the intermediary and agitate his grievance before it and ultimately before a court of competent jurisdiction."

Finally, observing hat there is nothing unconstitutional in the Impugned Rule, Justice Gokhale said the same cannot be struck down as invalid merely on concerns of its potential abuse and dismissed the petitions,. The Chief Justice will now determine as to which bench will decide the issue further.

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