Authored By: Vishali
Government Law College Coimbatore
Introduction
In September 2024, the Bombay High Court struck down, by a 2:1 majority, an amendment that would have empowered the Union Government to unilaterally brand any online statement about “the business of the Central Government” as fake, false, or misleading, and to compel its removal on pain of losing legal immunity. The provision, Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, as amended in 2023, created a government-run Fact Check Unit (“FCU”) empowered to flag content for takedown without independent adjudication. This article argues that permitting the executive to serve as the sole arbiter of truth in political speech violates the constitutional guarantee of free expression under Article 19(1)(a) and offends the principle, settled in Shreya Singhal v. Union of India, that vague and unchecked speech restrictions produce an impermissible chilling effect. It proceeds by outlining the statutory framework governing online intermediaries, analysing the reasoning in Kunal Kamra v. Union of India, and arguing that any legitimate model for combating political misinformation must separate the roles of interested party and adjudicator.
The Statutory Framework: Safe Harbour and the Fact Check Unit
Section 79 of the Information Technology Act, 2000, grants online intermediaries — social media platforms, search engines, and hosting services — conditional immunity from liability for third-party content, provided they observe “due diligence” and remove unlawful material upon actual knowledge, typically through a court or government order. The Supreme Court, in Shreya Singhal, read this provision narrowly, holding that intermediaries need only act on content flagged through a court order or a notification by an appropriate government agency, precisely to prevent private platforms from becoming reluctant censors of lawful speech.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, operationalised Section 79’s due diligence requirements. In April 2023, the Union Government amended Rule 3(1)(b)(v) to direct intermediaries to make reasonable efforts not to host content that a government-notified Fact Check Unit identified as “fake, false or misleading” in relation to the business of the Central Government. Non-compliance risked the loss of safe harbour, exposing platforms to civil and criminal liability for hosting the flagged content. In practice, this converted a voluntary due-diligence norm into a compelled, government-directed takedown mechanism targeted specifically at speech concerning the government itself — the paradigmatic category of political expression.
Kunal Kamra v. Union of India: Testing the Fact Check Unit
The amendment was challenged by comedian Kunal Kamra, the Editors Guild of India, and several media associations before the Bombay High Court. On 31 January 2024, a Division Bench delivered a split verdict: Justice G.S. Patel found the Rule unconstitutional, while Justice Neela Gokhale upheld it. The matter was referred to a third judge, Justice A.S. Chandurkar, whose opinion of 20 September 2024 broke the tie and, read together with Justice Patel’s opinion, struck down the amendment by a 2:1 majority on 26 September 2024.
Justice Chandurkar held that the Rule violated Articles 14, 19(1)(a), and 19(1)(g) of the Constitution. Three features of the Rule proved fatal. First, its central terms — “fake,” “false,” and “misleading” — were undefined and inherently subjective, leaving intermediaries no reliable standard by which to assess flagged content, and inviting arbitrary application in violation of Article 14’s guarantee against unequal or unreasoned executive action. Second, the Rule made the government the judge of speech about its own conduct, structurally denying any independent check on FCU determinations before intermediaries were compelled to remove content or accept the flag. Third, because intermediaries would rationally over-comply rather than risk losing safe harbour, the Rule produced precisely the chilling effect condemned in Shreya Singhal, deterring satire, criticism, and legitimate journalistic commentary on government affairs — the core of protected political speech under Article 19(1)(a).
III. Critical Analysis: Why State-Controlled Fact-Checking Fails Constitutional Scrutiny
The Kunal Kamra litigation exposes a structural flaw common to executive-run fact-checking regimes: the conflation of interested party and neutral adjudicator. A government unit empowered to certify falsity in criticism of its own conduct occupies an irreconcilable conflict of interest, however well-intentioned its stated purpose of combating disinformation. Unlike judicial or quasi-judicial determinations, FCU flags carried no requirement of a reasoned order, no notice to the speaker, and no meaningful avenue of appeal before the adverse consequence — loss of safe harbour — took effect. This absence of procedural safeguards distinguishes the Rule from legitimate content-regulation models and aligns it with the vice identified in Shreya Singhal: a restriction so structurally indeterminate that compliance-driven private censorship becomes the rational response of every regulated platform.
The problem is compounded in the political context. Misinformation regulation aimed at ordinary factual claims — public health data, for instance — can plausibly be entrusted to technical government agencies without the same conflict-of-interest concern. But regulation of speech about “the business of the Central Government” necessarily implicates political criticism, satire, and dissent, the categories of expression Article 19(1)(a) was designed most strongly to protect. Handing the government a unilateral takedown lever over exactly this category of speech inverts the constitutional presumption in favour of open political discourse. The Bombay High Court’s insistence on separating the roles of speaker, arbiter, and enforcer therefore reflects sound constitutional design, not merely technical rule-drafting.
Conclusion
The Kunal Kamra litigation confirms that government-controlled fact-checking of political speech cannot survive constitutional scrutiny when it combines vague standards, an inherent conflict of interest, and the absence of procedural safeguards before adverse consequences attach. Rule 3(1)(b)(v), by making the Union Government both subject and judge of criticism levelled against it, offended Articles 14 and 19(1)(a) precisely because it lacked the independence and due process that any credible misinformation-control mechanism requires. As the matter now awaits final resolution before the Supreme Court on the Union’s appeal, this article submits that any future regulatory response to political misinformation online must vest fact-checking authority in a body institutionally independent of the government whose conduct is under scrutiny, subject to reasoned findings, notice to affected speakers, and a right of appeal. Only such a framework can reconcile the legitimate objective of countering disinformation with the constitutional guarantee that political speech — the lifeblood of democratic accountability — remains free from unilateral executive control.
Reference(S):
Kunal Kamra v. Union of India, 2024:BHC-OS:14371-DB (Bom. H.C., Sept. 26, 2024).
Shreya Singhal v. Union of India, (2015) 5 S.C.C. 1.
Information Technology Act, No. 21 of 2000, § 79, India Code.
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, G.S.R. 139(E) (India).
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, G.S.R. 275(E) (India).
India Const. arts. 14, 19(1)(a), 19(1)(g), 19(2).
Internet Freedom Foundation, Supreme Court of India Issued Notice but Refused Any Stay in Union of India’s Challenge to the Bombay High Court Judgement Holding Fact Check Unit to Be Ultra Vires (2024), https://internetfreedom.in/supreme-court-of-india-issued-notice-but-refused-any-stay-in-union-of-indias-challenge-to-the-bombay-high-court-judgement-holding-fact-check-unit-to-be-ultra-vires/.
SpicyIP, Bombay High Court Strikes Down the Controversial IT Amendment Rules for Setting Up Fact Check Units (Sept. 2024), https://spicyip.com/2024/09/spicyip-tidbit-bombay-high-court-strikes-down-the-controversial-it-amendment-rules-for-setting-up-fact-check-units.html.
