Kunal Kamra v. Union of India

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

3) The provisions of sub-section (1) shall not apply if- (a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act; bdp-sps (b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner. Explanation.–For the purposes of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary. f) Section 87(2)(z) and (zg)

87. Power of Central Government to make rules.– (1) ………. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:– (a)……. to (y)…... (z) the procedures and safeguards for blocking for access by the public under sub-section (2) of section 69-A; (za)….. to (zf) …... (zg) the guidelines to be observed by the intermediaries under sub-section (2) of section 79; Rules of 2021: g) Rule 3(1) - Due diligence by an intermediary: Any intermediary, including [a social media intermediary, a significant social media intermediary and an online gaming intermediary], shall observe the following due diligence while discharging its duties, namely:bdp-sps (a)………….. (b) the intermediary shall inform its rules and regulations, privacy policy and user agreement to the user in English or any language specified in the Eighth Schedule to the Constitution in the language of his choice and shall make reasonable efforts [by itself, and to cause the users of its computer resource to not host], display, upload, modify, publish, transmit, store, update or share any information that,- (i)…….. to (iv)……..

(v) deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature [or, in respect of any business of the Central Government, is identified as fake or false or misleading by such fact check unit of the Central Government as the Ministry may, by notification published in the Official Gazette, specify]; M] Opinion on the points of difference: 27] Having noted the relevant constitutional and statutory provisions, it would be necessary to now consider the various points of difference for answering the reference. (a) Article 19(1)(a) and Article 19(2) of the Constitution of India: While considering the challenge to the impugned Rule as being violative of the provisions of Article 19(1)(a) of the Constitution of India, Patel J has held that what is provided bdp-sps under Article 19(1)(a) is only the right to freedom of speech and expression and not some “right to the truth”. Free speech on the internet being an integral part of Article 19(1) (a), any restriction on it must conform to Article 19(2). Such restriction must be reasonable. After referring to Shreya Singhal, Anuradha Bhasin (supra) and various other decisions, it was held that the right guaranteed under Article 19(1)(a) could be restricted only in the manner provided under Article 19(2). The primary requirement therefore was that the impugned Rule ought to be shown to be falling within the straitjacket of Article 19(2) of the Constitution. The rights conferred under Article 19(1)(a) could not be curtailed on the premise that such fundamental right was to ensure that every citizen received only “true” and “accurate” information as determined by the Government. It was not open for the State to coercively classify speech as true or false and compel non-publication of the latter. The impugned Rule sought to take up falsity per se and restrict content on that ground which was not identifiable to any specific part of Article 19(2). The same was impermissible. It is on this basis that the learned Judge held that the impugned Rule violated bdp-sps the provisions of Article 19(1)(a) of the Constitution. 28] On the other hand, Dr. Gokhale, J has observed that the validity of Section 79 of the Act of 2000 was the subject matter of challenge in Shreya Singhal (supra). Section 79(3) (b) curtailed safe harbour in certain cases and was read down to include only those matters relatable to restrictions in Article 19(2) of the Constitution. Thus, loss of safe harbour would result only if any offensive information was beyond any restriction under Article 19(2) of the Constitution. The impugned Rule was framed to carry out provisions of Section 69A of the Act of 2000 and related to guidelines to be observed by an intermediary under Section 79(2) of the Act of

2000. It was therefore neither ultra vires the Act of 2000 nor contrary to the judgment in Shreya Singhal (supra). As the impugned Rule satisfied the test laid down in the case of State of Tamil Nadu vs. P. Krishnamurty (2006) 4 SCC 517, it was not in excess of the power conferred by the Act of 2000. There was no automatic deprivation of safe harbour on grounds beyond Article 19(2) of the Constitution and the Rule was in consonance with the judgment in Shreya Singhal bdp-sps (supra). On this premise, the challenge to the impugned Rule based on Article 19(1)(a) of the Constitution of India was turned down. Shreya Singhal: 29] In this regard it would be necessary to first refer to the decision in Shreya Singhal (supra). The provisions of Sections 66A and 69A of the Act of 2000 were challenged as being in violation of the fundamental right of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. According to the petitioners therein, the constitutionality of Section 66A was not saved by any of the eight subjects covered in Article 19(2) of the Constitution. The provision also suffered from the vice of vagueness and it sought to enforce a form of censorship which impaired the core value contained in Article 19(1)(a). It also had chilling effect on the aspect of freedom of expression. The Union of India while defending the validity of the said provision had urged that mere possibility of abuse of a provision could not be a ground to declare such provision invalid. Vagueness could not be a ground to declare the statute unconstitutional bdp-sps if it was otherwise legislatively competent and non-arbitrary. While considering the said challenge, reference was made to the definition of the expression “information” as defined under Section 2(1)(v) of the Act of 2000. It was held that the definition was an inclusive one and it did not refer to what the content of information could be. Section 66A was attracted in view of the right of people to know (also the market place of ideas) which the internet provided to persons of all kinds. The Supreme Court referred to its earlier decision in Cricket Association of Bengal (supra) wherein it was held that to contend that any restrictions to be imposed on the right under Article 19(1)(a) of the Constitution should be in addition to those permissible under Article 19(2) would be to misconceive both the content of freedom of speech and expression and the problem posed by the element of public property. Control could be exercised only within the framework of Article 19(2) and the dictates of public interest. The submission made on behalf of the Union of India to read into Section 66A, each of the subject matters contained in Article 19(2) of the Constitution to save the constitutionality of the provision was turned down as it would amount to bdp-sps reading into Section 66A something that was never intended to be read into it. Referring to the decision in Romesh Thappar vs. State of Madras, 1950 INSC 14, it was held that the ratio of the said decision was applicable on all fours. It was observed that as long as the possibility of the provision being applied for the purposes not sanctioned by the Constitution could not be ruled out, it must be held to be wholly unconstitutional and void. Article 19(2) having allowed imposition of restrictions on the freedom of speech and expression only in cases where danger to the State was involved, an enactment that was capable of being applied to cases where no such danger could arise could not be held to be constitutional and valid to any extent. On that basis, the provisions of Section 66A of the Act of 2000 came to be struck down as being violative of Article 19(2) of the Constitution of India. Sakal Papers Private Limited: 30] In the context of the challenge based on protection under Article 19(1)(a) of the Constitution of India, the petitioners relied upon the decision in Sakal Papers Pvt. Ltd bdp-sps and others vs. Union of India, 1961 INSC 277. Therein constitutionality of the Newspaper (Price and Page) Act, 1956 as well as the Daily News Paper (Price and Page) Order, 1960 was under challenge. The said Act and Order sought to regulate the number of pages of newspapers according to the price charged, prescribe the number of supplements to be published and prohibit the publication of sale of newspapers in contravention of any order made under Section 3 of the said Act. Upholding the challenge, it was held that the right to freedom of speech and expression was an individual right granted to every citizen by Article 19(1)(a) of the Constitution. There was nothing in clause (2) of Article 19 which permitted the State to abridge this right on the ground of conferring benefits upon public in general or upon a section of the public. It noted that the impugned provision could not be justified on any of the grounds under Article 19(2) of the Constitution. The only restrictions that could be imposed on the rights of an individual under Article 19(1)(a) were those which clause (2) of Article 19 permitted and none other. bdp-sps Cricket Association of Bengal: 31] In Cricket Association of Bengal (supra), the right to telecast through an agency of the choice of the organizer or the producer of an event was under consideration. While summarizing the law on the freedom of speech and expression under Article 19(1)(a) as restricted under Article 19(2), it was held that the right to communicate included the right to communicate through any media that is available, whether print or electronic or audio-visual. The said fundamental right could be limited only by reasonable restrictions under a law made for the purposes mentioned in Article 19(2) of the Constitution. No restrictions could be placed on the right to freedom of speech and expression on grounds other than those specified under Article 19(2). It was not permissible to contend that restrictions to be imposed on the right under Article 19(1)(a) could be in addition to those permissible under Article 19(2) of the Constitution. Anuradha Bhasin: In Anuradha Bhasin (supra), the Supreme Court held bdp-sps that in its earlier decisions it had recognized free speech as a fundamental right and as technology evolved, the freedom of speech and expression over different media of expression had also been recognized. The freedom of speech and expression through the medium of internet was an integral part of Article 19(1)(a) and any restriction on the same ought to be in accordance with Article 19(2) of the Constitution. Kaushal Kishor: The Constitution Bench in Kaushal Kishor (supra) reiterated the law that the restrictions under Article 19(2) were comprehensive in nature to cover all possible attacks on an individual, groups / classes of people, the society, the court, the country and the State. Any restriction that did not fall within the four corners of Article 19(2) would be unconstitutional. The Executive could not transgress its limit by imposing an additional restriction in the form of Executive or departmental instructions. Any reasonable restriction sought to be imposed must only be through “a law” having statutory force. The Court also could not impose additional restrictions by using tools of interpretation. bdp-sps 32] Having considered Rule 3(1)(b)(v) in the context of the areas it seeks to encompass in the backdrop of the law laid down in Sakal Papers Pvt. Ltd., Cricket Association of Bengal, Shreya Singhal, Anuradha Bhasin and Kaushal Kishor (supra), in my view, the Rule seeks to restrict transmission of ‘information’ as defined by Section 2(1)(v) of the Act of 2000 based on its content on grounds that are not relatable to any of the eight subjects referred to in Article 19(2) of the Constitution. Sakal Papers Pvt. Ltd. (supra), in the context of freedom of press as forming part of Article 19(1)(a) has upheld the right of a citizen to propagate his views and reach any class and number of readers as he chooses subject to the limitations permissible under a law competent under Article 19(2) of the Constitution. Restrictions placed must be justifiable under a law competent under clause (2) of Article 19. Cricket Association of Bengal (supra) reiterates that restrictions to be imposed on the right conferred by Article 19(1)(a) cannot be in addition to those permissible under Article 19(2) of the Constitution. Control can be exercised only within the framework of Article 19(2). In Shreya Singhal bdp-sps (supra) wherein the validity of Section 66-A of the Act of 2000 was under challenge, the Supreme Court referred to its decision in Romesh Thappar (supra) in the context of the challenge based on violation of Article 19(1)(a) and reiterated that “clause (2) of Article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent”. It was thus held that Section 66-A of the Act of 2000 purported to authorise the imposition of restrictions on the fundamental right under Article 19(1)(a) in language that was wide enough to cover even matters beyond constitutionally permissible limits. Anuradha Bhasin (supra) reinforces the position that freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible and that wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. It recognised the freedom of speech and expression through the medium of internet as an integral part of Article 19(1)(a) and bdp-sps held that any restriction on the same must be in accordance with Article 19(2) of the Constitution. 33] The decisions on which reliance was placed by the learned Solicitor General recognise the right to know as being a basic right to enable citizens to be part of participatory democracy. This right to know is in the context of the affairs of the Government, decisions taken by it and the basis thereof. S.P. Gupta (supra) refers to the citizens’ right to know true facts about the administration of the country as being one of the pillars of a democratic State. M. Nagaraj (supra) holds that the concept of an open Government is the direct result from the right to know that is implicit in the right of free speech and expression guaranteed by Article 19(1)(a) of the Constitution. In the present case however, the issue is with regard to the restrictions sought to be imposed on the content of “information” as defined by Section 2(1)(v) of the Act of 2000 in a manner that cannot be supported by falling back upon Article 19(2) of the Constitution. Hence, the ratio of the aforesaid decisions cannot further the efforts of the Union of bdp-sps India in seeking to support the validity of Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023. Similarly, the observations in Dr. D.C. Saxena (supra) that in case of speech or expression that was untrue and reckless as to its truth, the speaker or author would not get protection of the constitutional right have to be considered in the context of striking a balance between the freedom of speech and expression while seeking to maintain public confidence in the administration of justice. 34] Kaushal Kishor (supra) reiterates the position that any restriction not falling within the four corners of Article 19(2) of the Constitution would be unconstitutional. The Constitution Bench in Association for Democratic Reforms and another (supra) re-affirms this position. While dealing with the content of information being offensive, qualified by knowledge and intent of the user resulting in loss of safe harbour, Dr. Gokhale J has referred to paragraphs 14.1(d) and 25 in the opinion of Nagarathna J in Kaushal Kishor (supra). Perusal of paragraph 14 in its entirety reproduced hereinbelow indicates that the observations made are in the bdp-sps context of hate speech, defamatory speech etc.

14. According to Wesley Hohfeld’s analysis of the form of rights, every right has a complex internal structure, and such structure determines what the rights mean for those who hold them. Such rights are ordered arrangements of basic components. One of the components of a right, is a correlative duty. That is to say, if X has a right, he is legally protected from interference in respect of such right and such right carries with it the duty of the State, not to interfere with such right. If the State (or any other person) is under no corelative duty to abstain from interfering with the exercise of a right, then such a right is not a ‘right’ in the strict Hohfeldian sense. The boundaries of the protective perimeter within which a person can exercise their rights, depend on the degree to which the State is duty bound to protect the right.

14.1. What emerges from the Hohfeldian conception of rights and corelative duties, qua the right to freedom of speech and expression may be summed up as follows: a) The Constitution of India confers under Article 19(1)(a), the right to freedom of speech and expression to all its citizens. The State has a corelative duty to abstain from interference with such right except as provided in Article 19(2) of the Constitution which are reasonable restrictions on the right conferred under Article 19(1)(a). The extent of such duty depends upon the content of speech. For instance, in respect of speech that is likely to be bdp-sps adverse to the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality; or speech that constitutes contempt of court, defamation or is of such nature as would be likely to incite the commission of an offence, the duty of the State to abstain from interference, is nil. This principle is Constitutionally reflected under Article 19(2) which enables the State to enact law which would impose reasonable restrictions on such speech as described under the eight grounds listed hereinabove which are the basis for reasonable restrictions. b) Per contra, in respect of speech and expression which constitutes an exchange of ideas, including dissent or disagreement, and such ideas are expressed in a manner compatible with the ethos cultivated in a civilised society, the duty of the State to abstain from interference, is high. c) Similarly, in respect of commercial speech, the State is completely free to recall or curb commercial speech which is false, misleading, unfair or deceptive. Therefore, the threshold of tolerance towards commercial speech or advertisements depends on the content of such speech and the object of the material sought to be propagated/circulated. The duty of the State to abstain from interference would also depend upon the nature and effect of the commercial speech. bdp-sps d) As is evident from the above illustrations, the extent of protection of speech would depend on whether, such speech would constitute a ‘propagation of ideas’ or would have any social value. If the answer to the said question is in the affirmative, such speech would be protected under Article 19(1)(a); if the answer is in the negative, such speech would not be protected under Article 19(1)(a). In respect of speech that does not form the content of Article 19(1)(a), the State has no duty to abstain from interference having regard to Article 19(2) of the Constitution and only the grounds mentioned therein. e) Having noted that the protective perimeter within which a person can exercise his/her rights depends on the degree to which the State is duty bound to protect the right, it may also be said as a corollary that in respect of speech that does not form the content of Article 19(1)(a), the State has no duty to abstain from interference and therefore, speech such as hate speech, defamatory speech, etc. would lie outside the protective perimeter within which a person can exercise his right to freedom of speech. Such speech can be subjected to restrictions or restraints. While restrictions on the right to freedom of speech and expression are required to be made only under the grounds listed under Article 19(2), by the State, restraints on the said right, do not gather their strength from Article 19(2). Restraints on the right to freedom of speech and expression are governed by the content of Article 19(1)(a) itself; i.e., bdp-sps any kind of speech, which does not conform to the content of the right under Article 19(1)(a), may be restrained. Questions pertaining to the voluntary or binding nature of such restraint, the force behind the same, the persons on whom such restraints are to be imposed, the manner in which compliance thereof could be achieved, etc., are aspects left to be deliberated upon and answered by the Parliament. However, the finding made hereinabove is only to the extent of clarifying that any kind of speech, which does not form the content of Article 19(1)(a), may be restrained as such speech does not constitute an exchange of ideas, in a manner compatible with the ethos cultivated in a civilised society. Such restraints need not be traceable only to Article 19(2), which exhaustively lists eight grounds on which restrictions may be imposed on the right to freedom of speech and expression by the state.” The said observations would have to be construed in the context in which they have been made. This is further clear from what has been held in the following portion of paragraph 25 which reads thus: “25. It is clarified that at this juncture that it is not necessary to engage in the exercise of balancing our concern for the free flow of ideas and the democratic process, with our desire to further equality and human dignity. bdp-sps This is because no question would arise as to the conflict of two seemingly competing rights, being the right to freedom of speech and expression, vis-a-vis the right to human dignity and equality. The reason for the same is because, the restraint that is called for, is only in relation to unguided, derogatory, vitriolic speech, which in no way can be considered as an essential part of exposition of ideas, which has little social value. This discourse, in no way seeks to pose potential danger to peaceful dissenters, who exercise their right to freedom of speech and expression in a critical, but measured fashion. The present cases pertain specifically to derogatory, disparaging speech, which closely resembles hate speech. Such speech does not fall within the protective perimeter of Article 19(1)(a) and does not constitute the content of the free speech right. Therefore, when such speech has the effect of infringing the fundamental right under Article 21 of another individual, it would not constitute a case which requires balancing of conflicting rights, but one wherein abuse of the right to freedom of speech by a person has attacked the fundamental rights of another.” (emphasis supplied) bdp-sps 35] In the present reference, the restraint sought to be imposed by the Union through the amendment of 2023 to Rule 3(1)(b)(v) of the Rules of 2021 is being examined. In my view, the conclusion recorded in Kaushal Kishor (supra) as against Question-1 is material for the present purpose. Be it noted that Question-1 has been answered unanimously by all the learned Judges of the Constitution Bench. The answer is as follows: “The grounds lined up in Article 19(2) for restricting the right to free speech are exhaustive. Under the guise of invoking other fundamental rights or under the guise of two fundamental rights staking a competing claim against each other, additional restrictions not found in Article 19(2), cannot be imposed on the exercise of the right conferred by Article 19(1)(a) upon any individual.” 36] In the light of the aforesaid settled legal position, I would agree with the view of Patel, J that under the right to freedom of speech and expression, there is no further “right to the truth” nor is it the responsibility of the State to ensure bdp-sps that the citizens are entitled only to “information” that was not fake or false or misleading as identified by the FCU. Rule 3(1)(b)(v) seeks to restrict the fundamental right guaranteed under Article 19(1)(a) by seeking to place restrictions that are not in consonance with Article 19(2) of the Constitution. The same is impermissible through the mode of delegated legislation. P. Krishnamurthy (supra) holds that on such ground, subordinate legislation can be struck down. I agree that the impugned amendment of 2023 to Rule 3(1)(b)(v) is ultra-vires Article 19(1)(a) and Article 19(2) of the (b) Violation of Article 19(1)(g) read with Article 19(6): 37] The challenge raised by the petitioners based on the fundamental right guaranteed under Article 19(1)(g) of the Constitution has been considered by Patel J in paragraphs 167 to 177 of his judgment. It has been held that a piece of information relating to the business of the Central Government that could find place in print media was not subjected to the same level of scrutiny as is expected under the impugned Rule when that very information is shared on bdp-sps digital platforms. There is no such “censorship” when such material is in print while it is liable to be suppressed as fake or false or misleading in its digital form. It has thus been held that the impugned Rule resulted in direct infringement of Article 19(1)(g) of the Constitution. Dr. Gokhale J in paragraph 30 of her judgment has referred to aforesaid challenge and has observed that the apprehension of the petitioner in Writ Petition (L) No.9792 of 2023 that his ability to engage in political satire would be unreasonably and excessively curtailed if his content was subjected to a manifestly arbitrary fact check was sufficiently taken care of under the scheme of the impugned Rule. The impugned Rule was not violative of the right guaranteed under Article 19(1)(g) of the Constitution. 38] I am in agreement with what has been observed in paragraphs 167 to 177 by Patel J wherein the challenge based on violation of the right guaranteed under Article 19(1) (g) of the Constitution has been upheld. A piece of information that is not subjected to the rigors of Rule 3(1)(b)

(v) of the Rules of 2021 when in the print media being bdp-sps subjected to those rigors when in the digital form is a relevant aspect. There is no basis or rationale for undertaking the exercise of determining whether any information in relation to the business of the Central Government is either fake or false or misleading when in the digital form and not undertaking a similar exercise when that very information is in the print form. The Editors Guild of India is justified in its grievance that it is concerned with both, the print media as well as digital platforms. There is thus an infringement of the right guaranteed under Article 19(1)(g) of the Constitution of India.

(c) Violation of Article 14 as the Government itself is the final arbiter in its own cause: 39] This is another issue on which the learned Judges have disagreed. Patel J while considering the challenge to Rule 3(1)(b)(v) of the Rules of 2021 as amended has held that by constituting the FCU, the Government itself became the final arbiter in its own cause inasmuch as it was to decide which information was fake or false or misleading. He held that the Central Government could not be a judge in its own cause and relied upon the decision in A. K. Kraipak & others bdp-sps (supra). In paragraphs 189 to 191 of his judgment this issue has been considered under the head “Natural Justice”. Dr.Gokhale J in her judgment has dealt with the same in issue (b). She has held in paragraphs 24 to 27 of her judgment that as a redressal mechanism is available for the intermediary as well as for the user, it is the court of law which is the final arbiter of a grievance in that regard. There was no basis whatsoever to attribute bias of predisposition to the members of the FCU on the ground that they were Government appointees. Since a jurisdictionally competent Court was the ultimate arbiter the impugned Rule was not violative of Article 14 of the Constitution and was not liable to be struck down on that count. In this context however it would also be necessary to note that Dr.Gokhale J in paragraph 58 of her opinion has observed that the apprehensions expressed by the petitioners behind the intent of the Government in introducing the impugned Rule were justified and such apprehensions could not be swept away as frivolous or motivated. bdp-sps 40] The constitution of the FCU has been indicated in Rule 3(1)(b)(v) of the Rules of 2021 as a Unit to be constituted by the Central Government by issuing a Notification. The FCU is to decide as to whether any information with regard to the business of the Central Government is either fake or false or misleading. The Central Government being the aggrieved party, the FCU constituted by it is required to decide which piece of information with regard to the business of the Central Government is either fake or false or misleading. The exercise would result in an unilateral determination by the executive itself. That the charter of the FCU, the extent of its authority, the manner of its functioning in ascertaining fake or false or misleading information being unknown has been noticed by Dr.Gokhale J too in paragraph 25 of her judgment. This aspect in my view supports the petitioner’s challenge to the amended Rule on the ground of vagueness in the context of Article 14 of the Constitution. Taking into consideration all aspects including that the basis on which the information with regard to the business of the Central Government is to be identified for being categorized either to be fake or false or misleading, the FCU in a sense is the arbiter in its own bdp-sps cause. By contending that the decision of the FCU can be subjected to challenge before a constitutional Court, the same cannot be treated as an adequate safeguard and it would not be of much consequence in the light of the decision in A. K. Kraipak & others (supra). I am therefore inclined to agree with the view of Patel J that as the Central Government itself would constitute the FCU, it is an arbiter in its own cause. In addition, another facet of challenge based on violation of Article 14 that has been upheld by Patel J is that what is permissible in the print media is proscribed in the digital form. In other words, the test of any information being fake or false or misleading as regards business of the Central Government though applicable for the digital version is inapplicable for the very same information when published in the print media. I thus agree with Patel J that this distinction results in violation of Article 14 of the

(d) Knowingly and intentionally:

41] A difference has cropped up in the views expressed by the learned Judges in the context of the expression bdp-sps “knowingly and intentionally communicates” appearing in Rule 3(1)(b)(v) of the Rules of 2021 as amended. Patel, J has held that the words “knowingly and intentionally communicates” apply to and qualify the immediately following clause “any misinformation or information which is patently false and untrue or misleading in nature”. They do not control the amended portion which is “or, in respect of any business of the Central Government, is identified as fake or false or misleading by such fact check unit”. Emphasis has been placed on the disjunctive use of “or” and it has thus been concluded that the amendment to the Rule in 2023 is independent of any user knowledge or intent. It has been explained that with regard to any non-Central Government business related content, there is no FCU and there is no arbiter of what is “patently false and untrue or misleading”. In the said category, the focus is on the user’s awareness of falsity and untruth or misleading nature of information while in the latter, the focus is on the intermediary permitting continuance of what the FCU has determined to be fake or false or misleading. bdp-sps On the other hand, Dr. Gokhale J has held that the application of the words “knowingly and intentionally” cannot be severed and that the interpretation put-forth by the petitioners that the said words would apply only to the unamended portion of Rule 3(1)(b)(v) and not to the amended portion of the said Rule was not correct. The said words were applicable even to the amended Rule in relation to the business of the Central Government. Knowledge and intent would result in loss of safe harbour and hence reading Rule 3(1)(b)(v) dehors the application of the words “knowledge and intent” was not a correct interpretation. It has been further observed that the question whether any content is fake or otherwise, whether it was knowingly and intentionally shared were questions that would be required to be determined by adducing evidence by following the procedure established by law before a jurisdictionally competent Court. 42] A perusal of Rule 3(1)(b)(v) prior to its amendment indicates that “knowingly and intentionally” communicating any misinformation or information that was patently false and untrue or misleading in nature required the intermediary bdp-sps to make reasonable efforts not to host, display, upload, modify, publish, transmit, store, update or share such information. The amendment of 2023 seeks to insert “or, in respect of any business of the Central Government, is identified as fake or false or misleading by such fact check unit of the Central Government as the Ministry may, by notification published in the Official Gazette, specify” in Rule 3(1)(b)(v). I am inclined to agree with the view of Patel, J that insertion of the word “or” before the amended portion of Rule 3(1)(b)(v) makes all the difference inasmuch as an independent clause which is not related to any content that has been knowingly and intentionally communicated has now been inserted “in respect of any business of the Central Government”. The marked difference in the existing Rule prior to its amendment is the absence of any FCU for non- Central Government business which is evident from Rule 3(1) (b)(v). If any piece of information is patently false and untrue or misleading in nature, there is no provision for any identification by the FCU. On the other hand, the amendment requires the FCU to decide what is fake or false or misleading in respect of any business of the Central bdp-sps Government. If after identification by the FCU such content continues to be hosted, irrespective of knowledge and intent of the user, that would result in automatic loss of safe harbour. In my view, it has been rightly observed that with regard to non-Central Government business, the focus is on the user’s awareness of falsity and untruth or misleading nature of information while with regard to Central Government business, the focus is on the intermediary permitting continuance of what the FCU has determined to be fake or false or misleading. Applying the expression “knowingly and intentionally” even to the amended portion of Rule 3(1)(b)(v) in relation to business of the Central Government would result in rendering the disjunctive word “or” that follows the unamended Rule and precedes the amended portion of the Rule otiose. The amended Rule intends to create two different areas, one relating to non-Central Government business and the other specifically to the business of the Central Government. For these reasons, the finding recorded by Patel, J that the amendment of 2023 as regards “business bdp-sps of the Central Government” is independent of knowledge and intent of the user commends acceptance. (e) Expression “fake or false or misleading”: 43] Another point of difference is based on the absence of the exact meaning of the expression “fake or false or misleading” appearing in Rule 3(1)(b)(v) of the Rules of 2021 as amended. While considering this aspect, Patel J has referred to the provisions of the Indian Evidence Act, 1872 and especially Section 3 thereof. He has also referred to various scholarly works in that context and has thereafter found that in absence of any guidelines to indicate the manner in which fake or false or misleading information could be identified by the FCU, Rule 3(1)(b)(v) was vague and overbroad. What was therefore left was merely an “illusion of choice” with regard to the business of the Central Government. It was also emphasized that all the three words in the aforesaid expression had been used disjunctively since they were separated by the word “or”. The three words were not interchangeable which was another reason to hold the said expression to be vague. It is on this premise that the bdp-sps invalidity of Rule 3(1)(b)(v) has been recorded. Dr.Gokhale J in her judgment has referred to the dictionary meaning of the said words and has observed that they were to be understood in the context of their use in a sentence or phrase. The words “fake or false or misleading” had been used specifically in the context of deceptive, deceitful and patently untrue information. On this premise, it was held that Rule 3(1)(b)(v) did not suffer from the vice of vagueness and its validity could not be refuted on that ground. It was however noted in paragraph 45 that though the aforesaid words had not been defined in Rule 3(1)(b)(v), it was required to be seen whether the said words would find their definition in the FCU Notification that would be issued. 44] In my view, absence of any indication as regards the manner of identifying fake or false or misleading information and there being no guidelines whatsoever in that regard renders the expression “vague or false or misleading” to be vague and overbroad. It is material to note that each word is used in a disjunctive manner being separated by the word bdp-sps “or”. The word “misleading” can be subjected to various dimensions without any idea being given as to what it would connote. Since the amended Rule attempts to identify “information” in respect of any business of the Central Government as fake or false or misleading by the FCU, it is all the more necessary that the said expressions are either defined or explained to broadly give an idea of what could be termed to be fake or false or misleading. The matter would be left entirely at the unguided discretion of the FCU in absence of any guiding principle in that regard. The ratio of the decision of the Madras High Court in R. Thamaraiselvan (supra) is thus clearly attracted. I would therefore endorse the view expressed by Patel J that in absence of any guidelines under the Rules of 2021 as amended to indicate the scope and applicability of the expression “fake or false or misleading”, the impugned Rule is vague and overbroad rendering it liable to be struck down. (f) The impugned Rule being ultra vires the Act of 2000: 45] One of the challenges raised to the impugned Rule is bdp-sps that it travels beyond the rule making power conferred under the Act of 2000. Patel J held that Section 87(2)(z) of the Act of 2000 contemplates Rules for providing the procedure and safeguards for blocking for access by the public under Section 69A(2). He has held that under Section 87(2)(zg) the Central Government could not create a FCU to identify any information relating to the Government’s business as fake or false or misleading. What was intended to be provided was in the nature of substantive law and not any rule making exercise. The impugned Rule thus created a substantive law beyond the parent statute. No such rule making power could be exercised beyond the frame of Article 19(2) of the Constitution. He thus held that the Rule as amended was ultra vires the Act of 2000. Dr. Gokhale J, on the other hand has held that if an intermediary chooses to block content, it could be done only after following the due procedure prescribed under the Blocking Rules of 2009 and the Ethics Code Rules. The impugned Rule therefore was not ultra vires the provisions of the Act of 2000 nor was it contrary to the judgment in Shreya Singhal (supra). The challenge as raised by the petitioners in bdp-sps that regard was turned down. In my view, Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 is ultra vires the Act of 2000. Firstly, the amendment of 2023 has not been effected as required by Section 87(3) of the Act of 2000. It has not been shown that the proposed amendment was laid before each House of Parliament in the manner prescribed by Section 87(3) of the Act of 2000. Secondly, the amended Rule is not referable to Section 87(2)(z) as the said provision relates to the procedure and safeguards for blocking for access by the public under Section 69A(3). Section 87(2)(zg) refers to guidelines to be observed by intermediaries under Section 79(2) of the Act of

2000. I am in agreement with the finding of Patel J that the impugned Rule creates substantive law beyond the Act of 2000 and that it does not relate to anything permissible either under Section 69A or Section 79 of the Act of 2000. The amended Rule seeks to impose restrictions beyond those permissible under Article 19(2) of the Constitution. It also suffers from manifest arbitrariness for not being in conformity with the Act of 2000 on the principles laid down bdp-sps by the Constitution Bench in Association for Democratic Reforms and another (supra). (g) Chilling effect of the amended Rule: 46] Another area of difference that has arisen in the views expressed by the learned Judges is on the “chilling effect” flowing from the impugned Rule. Patel J in this regard has observed that the chilling effect connotes various factors that lead inevitably to self-censorship. This self-censorship may either be direct (by the author) or indirect (by another who has control over the author’s content). He has held that where the author is dependent on some other agency on whom the burden of content – control is cast, knowledge that the other agency would almost certainly act to forbid that content would prevent the author from exercising the right to free speech. Reference has been made to the market place of ideas which is a forum for exchange of ideas that are traded, exchanged, debated and commented upon. It is a term of art that means space and opportunity for discussion, dissent and debate. The market place of ideas is essentially a forum for disagreement. Vagueness and overbreadth have also been bdp-sps linked to the concept of the chilling effect. It has thus been concluded that the Supreme Court in Shreya Singhal (supra) had observed that the concept of the chilling effect militates against the acceptance of the submission that a mere possibility of abuse cannot be a ground for invalidation. The words “chilling effect” in fact indicate the anticipated future impact of the Rule. This is one of the reasons for not upholding the validity of the said Rule. Dr. Gokhale J has held that there was no intermediary before the Court complaining of a “chilling effect”. On the contrary, the Central Government had engaged with intermediaries before notifying the said Rule. On the premise that the qualification to offensive information was knowledge and intent coupled with the fact that political satire, political parody, political criticism, opinions, views etc. would not form part of offensive information, it was held that these were relevant aspects that could not be ignored. The impugned Rule was a forum for exchange of ideas, debates, dissent, discussions as a market place but based on real and existing facts which rendered discussions and debates effective and bdp-sps meaningful. The impugned Rule encouraged debates and discussions on facts bereft of fakery. It was thus held that the apprehension expressed by the petitioners that an intermediary would be compelled to refuse to continue to post content of user flagged by the FCU for the fear of loss of safe harbour was unfounded and premature. It was further held that as long as content of the information shared on a platform of any intermediary did not offend restrictions under Article 19(2), the intermediary would continue to enjoy safe harbour and right of speech of the user would not be impinged even indirectly by any State action against the intermediary. It was thus concluded that the impugned Rule did not bring a chilling effect on the rights of a user. 47] The principle of chilling effect has been referred to in Anuradha Bhasin (supra) by the Supreme Court. It was noted that the said principle had been utilized in Indian jurisprudence as a fairly recent concept. The said principle was adopted for impugning action of the State which though constitutional, imposed a greater burden on free speech. The question of law as to the appropriate standards in bdp-sps establishing a casual link in a challenge based on chilling effect was left open by the Supreme Court. It was however noted that a possible test of chilling effect was comparative harm. Since there was no sufficient material placed on record, the Supreme Court observed that in such a situation it was impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self-serving purpose. In Shreya Singhal (supra), while considering the challenge to the validity of Section 66-A of the Act of 2000, it was held that the said provision was cast widely so that any opinion on any subject would be covered by it. The reading of the said provision was such that to withstand the test of constitutionality, the chilling effect on free speech would be total. Patel J has linked the aspects of vagueness and overbreadth with the concept of chilling effect in the light of absence of any reasonable standards to define guilt in the provision that creates an offence and where there is no clear guidance given either to law abiding citizens or to authorities and Courts. A provision that created an offence which was vague was liable to be struck down as being arbitrary and bdp-sps unreasonable. The chilling effect therefore was an aspect that had material bearing as a facet of challenge to the validity of such provision. If it was found that the impugned Rule was also vague and broad without any guiding principle to indicate the areas it sought to encompass, possibility of such chilling effect being felt would be an additional ground to hold it invalid. In Mohammed Zubair (supra) while considering the request made by the State of Uttar Pradesh to prohibit the petitioner therein from tweeting while on bail, it was observed that imposition of such a condition would tantamount to a gag order which would have a chilling effect on the freedom of speech. 48] In the present case the impugned Rule requires an intermediary not to host information that is patently fake or false or misleading which terms are undefined and doing so could result in deprivation of safe harbour. That there could be a “chilling effect” in view of an anticipated future impact of a provision has been considered in Shreya Singhal (supra). bdp-sps Thus when the totality of the challenge is considered and all grounds of attack are taken together, the fact that the impugned Rule also results in a chilling effect qua an intermediary would render it invalid. On this count, the ratio of the decisions in Kusum Ingots and Alloys Limited as well as Sant Lal Bharti (supra) would not be attracted. In that context, I thus agree with Patel J and opine that the impugned Rule being vague and broad, it has the potential of causing a “chilling effect” on that premise. (h) Saving the impugned Rule by reading it down as well as on the basis of concession of the law officer: 49] It was urged before the Division Bench that the Court ought to make an attempt to read down the Rule so as to save it from being struck down. In this regard, it was held by Patel J that the submission that the operation of the Rule ought to be limited to information that was fake or false would result in ignoring the expression “misleading”. This was found to be impermissible as the words “fake or false or misleading” occurring in Rule 3(1)(b)(v) of the Rules of 2021 as amended had been used disjunctively. Excluding bdp-sps consideration of the expression “misleading” would therefore amount to reading out that expression and not reading it down. Similarly, excluding any opinion, view, commentary, satire or criticism from the expression “information” was also held to be impermissible given the definition of the said term by Section 2(1)(v) of the Act of 2000. Putting out a disclaimer as suggested was also not accepted in view of use of the words “not to host”. The submission to restrict the operation of the term “information” only to facts was also not accepted given its definition in the Act of 2000. On this basis it was held that the Rule could not be saved by reading it down in the manner suggested by the Union of India. 50] Dr. Gokhale J in her judgment has observed that as the impugned Rule when read in its entirety merely required an intermediary to make a “reasonable effort” to prevent it from losing safe harbour, the option of issuance of a disclaimer rather than “take down” would amount to making a reasonable effort as contemplated by the Rule. By interpreting the Rule in such manner, the procedure for deprivation of exemption would be fair, just and reasonable. bdp-sps The provision therefore did not suffer from any manifest arbitrariness. The insistence of the petitioners of denying availability of the option of “disclaimer” that was inherent in the Rule was incomprehensible. It was thus held that the impugned Rule did not pre-empt the option of issuance of disclaimer. Since political satire, political parody, political criticism, opinions, views etc. did not form part of offensive information, it was held that the Rule was valid. 51] In my view, limiting the operation of the impugned Rule only to fake or false information, thereby ignoring the expression “misleading” which appears in Rule 3(1)(b)(v) would not be an exercise of reading down but would amount to “reading out” the said expression which has been held to be impermissible by the Supreme Court while dealing with a similar submission in Shreya Singhal (supra). The words “fake or false or misleading” having been used in Rule 3(1)(b)

(v) disjunctively, each word would have to be given its due meaning and effect. This is for the reason that these expressions have been used in the context of hosting such information by a platform of the intermediary. Further, the bdp-sps word “information” having been defined as an inclusive term by Section 2(1)(v) of the Act of 2000, its operation cannot be restricted by urging that the impugned Rule was not intended to affect political views, satire, opinions etc. and was to be applied only to facts. As held by the Supreme Court in Minerva Mills Limited (supra), the principle of reading down cannot be invoked or applied in opposition to the clear intention of the legislature. Giving a restrictive meaning to an inclusive definition would not be permissible by resorting to the doctrine of reading down. I do not therefore find that by undertaking an exercise of “reading down”, the invalidity of the Rule can be saved. The Rule as amended definitely suffers from vagueness and overbreadth. 52] As regards the effort of the learned Solicitor General in urging for the exclusion of political comments, opinions, debates, satire etc. from the realm of the impugned Rule is concerned, suffice it to observe that a similar exercise was also sought to be undertaken before the Supreme Court in Shreya Singhal (supra). Turning down such stand, it was held that the provision under challenge ought to be judged on bdp-sps its own merits without any reference as to how well it would be administered. This is for the reason that any assurance from one Government even if carried out faithfully would not bind a succeeding Government. In my view therefore the impugned Rule cannot be saved by undertaking the exercise of “reading down” as suggested or by accepting the stand of the Union of India of the limited manner of its operation in the context only of “fake or false” information or for that matter putting up a disclaimer being sufficient in itself so as not to deprive the intermediary of any safe harbour.

(i) Aspect of proportionality:

53] While dealing with this aspect of challenge, Patel J has referred to the five-fold test laid down by the Supreme Court in Gujarat Mazdoor Sabha (supra). He has held that the impugned Rule as amended failed all the five tests laid down by the Supreme Court. The challenge to the impugned Rule on the ground of proportionality was upheld. 54] Dr.Gokhale J has considered this aspect while answering questions (e) and (f). It has been held that the bdp-sps impugned Rule was not disproportionate inasmuch as loss of safe harbour would be in terms of Section 79(3)(b) of the Act of 2000 that had been read down by the Supreme Court in Shreya Singhal (supra) so as to apply only in matters relatable to Article 19(2) of the Constitution. The due diligence expected of an intermediary through the impugned Rule was reasonable and not arbitrary. There was no right to share misinformation or fake content without being met with a resistance by administration on behalf of and in the interest of the rest of its citizens. The Rule was not liable to be struck down as invalid merely on the concerns of its potential abuse. It was limited to sharing of “offensive information” and hence there was nothing unconstitutional in the same. The qualification to the offensive information was knowledge and intent. Since political satire, political parody, political criticism, opinions, views etc. did not form part of offensive information, the Rule was not liable to be struck down. 55] In my view, the challenge raised to the impugned Rule as not satisfying the proportionality test has to be upheld especially when it seeks to abridge fundamental rights bdp-sps guaranteed under Article 19(1)(a) and 19(1)(g) of the Constitution of India. Absence of sufficient safeguards against the abuse of the Rules that tend to interfere with the aforesaid fundamental rights are shown to be absent. Having found that the validity of the impugned Rule cannot be saved by reading it down as urged, the contention raised on behalf of the Union of India of having adopted the least restrictive mode to prevent the spread of “fake or false or misleading information” by relying upon the decisions in that regard cannot be accepted. I therefore find that even on the ground of proportionality, the impugned Rule cannot be sustained as observed by Patel J. N] Conclusions: 56] Having considered the matter extensively on the points of difference, I would conclude by opining that I am in agreement with the view expressed by Patel J that - (a) Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 is violative of the provisions of Article 14, Article 19(1)(a) and Article 19(1)(g) of the Constitution. bdp-sps (b) The said Rule as amended is ultra vires the Act of 2000.

(c) The expression “knowingly and intentionally” does not apply to the amended portion of Rule 3(1)(b)(v) in relation to the business of the Central Government.

(d) The expression “fake or false or misleading” in absence of it being defined is vague and overbroad. (e) The impugned Rule cannot be saved either by reading it down or on the basis of any concession made in that regard of limiting its operation. (f) The test of proportionality as laid down in Gujarat Mazdoor Sabha (supra) is not satisfied by the impugned Rule. (g) Given the totality of the above, the impugned Rule also results in a chilling effect qua an intermediary. In my opinion therefore Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 is liable to be struck down. bdp-sps 57] Before parting, I must place on record the very able assistance rendered by Mr. Navroz Seervai, Mr. Darius Khambatta and Mr. Arvind Datar, learned Senior Advocates who were ably assisted by Ms. Arti Raghavan, Ms. Meenaz Kakalia and Mr. Rahul Unnikrishnan instructing them respectively, Mr. Shahdan Farasat, Advocate with Mr. Bimal Rajshekhar, Advocate and Mr. Gautam Bhatia, Advocate with Ms. Aditi Saxena, Advocate for the petitioners/intervenors as well as Mr. Tushar Mehta, learned Solicitor General with Mr. Rajat Nair, Mr. D.P. Singh and Ms. Savita Ganoo, Advocates for the Union of India. Without their erudite representation and persuasive skills, it would not have been possible to render this opinion. 58] All the writ petitions be now placed before the Division Bench for being decided in accordance with the provisions of Chapter-I, Rule 7 of the BHCAS Rules and Clause 36 of the Letters Patent. [ A. S. CHANDURKAR, J. ]