Between the ‘Abyss of Unrestrained Power’ and the ‘Heaven of Freedom,’ the Bombay High Court Delivers a Split Decision on the Constitutionality of a Fact Check Unit


On January 31, 2024, a two-judge bench of the Bombay High Court delivered a split decision regarding the constitutional validity of Rule 3(i)(II)(A) and (C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023, which amend Rule 3(1)(b)(v) of the Information Technology Rules, 2021 (the “Impugned Rule“). The Impugned Rule grants the Central Government the authority to establish a Fact Check Unit (“FCU“) to identify any false, fake, or misleading information related to its business on social media platforms.

Political satirist Kunal Kamra, along with the Editors Guild of India, News Broadcasters & Digital Association, and the Association of Indian Magazines (the “Petitioners“), had contested the constitutional validity of the Impugned Rule. The Petitioners filed writ petitions under Article 226 of the Constitution of India, which presented significant inquiries related to the fundamental right of freedom of speech and expression, as guaranteed under the Constitution of India. The challenge was based on the assertion that the Impugned Rule has a ‘chilling effect’ upon the freedom of speech and expression of the Petitioners and is violative of Articles 14, 19(1)(a) and (g), and 21 of the Constitution of India, as well as Section 79 and Section 87(2)(z) and (zg) of the Information Technology Act, 2000 (“IT Act“). The Petitioners were discontented with the Impugned Rule, which grants authority to a FCU, to be designated by the Government, for determining the accuracy of ‘information’, thereby alleging that the Government is the sole arbiter of truth in matters related to its own business.


  1. Amendment being Vague and Overbroad. 

It was contended by the Petitioners that the Impugned Rule grants exclusive authority to the Government’s designated FCU to determine the authenticity of user-generated content, concerning the ambiguous and undefined concept of the ‘business of the government.’ This includes decisions on whether the content is fake, false, or misleading. The Union of India (“Respondent“) contended that the term ‘business of the Government’ is well-defined and well-known to all and that the same does not include the statements or public assertions of individuals, whether politicians or bureaucrats, but only the business of the Government. It was further contented by the Respondent that nobody knows the business of the Government better than the Government.

Justice G.S. Patel held that the absence of clear definitions for key terms such as ‘business of the government,’ ‘fake,’ ‘false,’ and ‘misleading’ renders the amendment unclear and overly expansive. On the other hand, Justice Gokhale was of the opinion that it is the Government which will be in best position to provide correct facts on any aspect related to its own business, however, the vagueness of the terms by itself is not sufficient to strike down the entire rule as ultra vires.

  1. Loss of Safe Harbor for the Intermediaries. 

According to the Petitioners, the amendment shifts the responsibility for content accuracy from the creator or originator of the content to the service provider or intermediary, an entity that has no control over the content at all. Section 79(1) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 is the safe harbour provision, it provides immunity to the intermediaries against any third party data, information or communication hosted by the intermediary, provided the same has not been further modified by the intermediary. As per the Impugned Rule, the intermediary, upon receiving a communication from the FCU or the Central Government, must at the risk of losing safe harbour, remove the content so identified. The Respondent contended that the Impugned Rule provides for grievance redressal mechanism and sufficient procedural safeguards. It was also contented by the Respondent that, Clause (n) of the Impugned Rule mandates the intermediary to respect all the rights accorded to the citizens under the Constitution of India, including those under Articles 14, 19 and 21.

Justice Patel failed to see a nexus between a FCU and social media or intermediaries. He held that a FCU will check facts wherever they are found; it is media agnostic. On the other hand, Justice Gokhale opined that the Impugned Rule does not have any direct implication on the intermediary. She also held that the Impugned Rule does not directly penalize either the intermediary or the user, without recourse to a Court of law and it contains sufficient procedural safeguards.

  1. Encroachment upon Fundamental Rights. 

The Petitioners contented that any restrictions or any law interfering with the fundamental rights must be in pursuance of a legitimate State aim and should be only imposed for legitimate purposes. On the other hand, it was contended by the Respondent that the restrictions by the Impugned Rule meet the test of proportionality and that the measures adopted by the Government are consistent with the object of the law.

Justice Patel found the Impugned Rule to be in the form of censorship of user content, making the government’s FCU the sole authority to decide what piece of user content relating to undefined ‘business of the Government’ is not fake, false or misleading. Whereas Justice Gokhale held that the measures adopted by the Government are consistent with the object of the law and the impact of the encroachment on fundamental right is not disproportionate to the benefit which is likely to ensue. The rights of citizens to participate in the representative and participatory democracy of the country is meaningless unless they have access to authentic information and are not mislead.


Justice Gautam Patel, who sided with the Petitioners, emphasized that such fact-checks should not be solely conducted by the Center. He supported the Petitioners’ arguments, expressing concern that this rule could have a chilling effect, i.e. a scenario where imprecise speech-restricting laws leave a large grey area within which citizens are guessing where the line between legality and illegality lies. Citizens then self-censor even lawful speech, in an effort to stay well clear of the grey area. The result is overregulation and a stifling even of lawful speech. On the other hand, Justice Neela Gokhale had a differing opinion, stating that the Central Government is better positioned to ascertain the facts about its own business.

Chief Justice Devendra Kumar Upadhyaya has referred the matter to a third judge of the High Court. By virtue of this split verdict by Justice Patel and Justice Gokhale, the most relevant arguments of both the sides have been laid down, it will be interesting to see how the third judge analyses the reasoning in the split verdict and arrives at their decision.