The High Court's differing opinions reflect the complex interplay between governance, technology, and constitutional freedoms. Justice Patel’s focus on rights and natural justice provides a compelling critique of executive overreach, while Justice Gokhale's pragmatic emphasis on proportionality highlights the state's responsibilities. A holistic approach that incorporates robust safeguards and clear guidelines is essential to strike a balance between free speech and digital accountability.

New Delhi (ABC Live): The Divisional Bench of Bombay High Court comprising of two judges recently delivered a judgment where both Judges differed with each other on constitutional validity of The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (as amended in 2023), particularly Rule 3(1)(b)(v), are under scrutiny for This Rule empowers the Fact Check Unit (FCU), constituted by the Central Government, to identify and act against content deemed "fake or false or misleading" regarding the business of the Central Government. This raises significant questions about free speech, state overreach, and procedural safeguards.

Key Legal Issues and Conflicting Judgments

1. Vagueness of Terms:

• Justice Patel's View:

Criticized the use of undefined terms like "fake or false or misleading." Citing Shreya Singhal v. Union of India (2015), he argued that vague terminology risks arbitrary enforcement and could suppress legitimate speech.

Example: Terms like “business of the Central Government” lack clarity, making their scope overly broad and susceptible to misuse.

• Justice Gokhale's View:

Defended the use of ordinary meanings, arguing that the terms are sufficiently understandable in context and do not require precise legal definitions.

2. Violation of Fundamental Rights:

• Article 19(1)(a) – Freedom of Speech and Expression:

Patel J.: The Rule imposes unreasonable restrictions not directly linked to the permissible grounds under Article 19(2) (e.g., sovereignty, public order).

Gokhale J.: The Rule is a proportionate response to combat misinformation, falling within the ambit of Article 19(2), especially under "public order" and "decency or morality."

• Article 19(1)(g) – Freedom to Practice Any Profession:

Patel J.: The Rule adversely affects digital platforms’ operational freedom by threatening safe harbor protection under Section 79 of the IT Act.

Gokhale J.: Balancing societal needs with business interests, the Rule is reasonable and proportionate.

• Article 14 – Equality Before Law:

Patel J.: The Rule amounts to discriminatory classification by targeting only digital media while excluding print media. This violates the principle of equality.

Gokhale J.: The classification is justifiable, given the unique challenges of misinformation on digital platforms.

3. Procedural Safeguards and Natural Justice:

• Patel J.:

Highlighted procedural inadequacies: no notice to intermediaries, no opportunity for affected parties to contest FCU findings, and lack of reasoned decisions.

Asserted that these failings render the Rule contrary to natural justice principles (A.K. Kraipak v. Union of India (1969)).

• Gokhale J.:

Emphasized that mechanisms like disclaimers and grievance redressal systems provide sufficient safeguards.

4. Chilling Effect on Free Speech:

• Patel J.:

Expressed concern over the Rule's potential to stifle critical commentary, satire, and political dissent.

Cited Mohammed Zubair v. State of NCT of Delhi (2022) and Shreya Singhal to illustrate how such provisions can deter free speech.

• Gokhale J.:

Argued that fears of misuse are speculative, and the Rule’s intention is to prevent harm from false information.

Case Law Analysis

1. Shreya Singhal v. Union of India (2015):

Section 66A of the IT Act was struck down for vagueness and overreach. Justice Patel draws parallels, asserting that vague terms in Rule 3(1)(b)(v) similarly fail constitutional scrutiny.

2. Minerva Mills Ltd. v. Union of India (1980):

Discussed the doctrine of basic structure and the limits of state action under delegated legislation, relevant to Patel J.'s analysis of Rule 3(1)(b)(v).

3. Cricket Association of Bengal v. Union of India (1995):

Upheld the primacy of free speech in democracy. Patel J. uses this to critique the FCU’s potential to unduly restrict digital expression.

4. A.K. Kraipak v. Union of India (1969):

Established the principle that administrative action must conform to natural justice. Gokhale J. diverges by accepting administrative mechanisms as sufficient.

Strengths and Weaknesses of the Judgments

Justice Patel's Judgment:

• Strengths:

Comprehensive defense of free speech, with detailed analysis of procedural flaws and their chilling effects.

Grounded in established jurisprudence, particularly Shreya Singhal and A.K. Kraipak.

• Weaknesses:

Underestimates the societal harm posed by misinformation and the state's obligation to mitigate it.

Justice Gokhale's Judgment:

• Strengths:

Provides a balanced view on proportionality, emphasizing the government's role in curbing digital misinformation.

Focuses on practical safeguards and administrative feasibility.

• Weaknesses:

Relies heavily on administrative processes, which lack transparency and independent oversight.

Fails to address the chilling effect and its broader societal implications.

Implications of the Judgments

1. Legal and Constitutional:

Sets a precedent for how digital regulations interact with Articles 19(1) and 19(2).

Highlights the judiciary's evolving approach to digital governance.

2. Policy:

Calls for precise drafting of digital regulations and independent oversight mechanisms.

Emphasizes the need for harmonizing digital and traditional media regulations.

3. Societal:

Underscores the tension between combating misinformation and preserving democratic freedoms.

Recommendations

1. Revised Drafting:

Clarify terms like "business of the Central Government" and "fake or false or misleading."

Include explicit procedural safeguards, such as notice and hearing for intermediaries.

2. Independent Oversight:

Establish an autonomous body, separate from the Central Government, to oversee misinformation-related disputes.

3. Balanced Regulation:

Harmonize regulations across digital and print media to ensure equality under Article 14.

Conclusion

The High Court's differing opinions reflect the complex interplay between governance, technology, and constitutional freedoms. Justice Patel’s focus on rights and natural justice provides a compelling critique of executive overreach, while Justice Gokhale's pragmatic emphasis on proportionality highlights the state's responsibilities. A holistic approach that incorporates robust safeguards and clear guidelines is essential to strike a balance between free speech and digital accountability.