"What is truth? A mobile army of metaphors, metonyms, and anthropomorphisms." - Friedrich Nietzsche

Introduction
In the epoch of the digital age, social media has shifted the paradigm of social interaction and expression, granting users the ability to share their thoughts with the public at large without the shackles of publication costs in newspaper, editors and most importantly overview. The limitless freedom granted to people at the tips of their fingers, is as all such monumental advancements a double - edged sword, giving birth to the lawless dissemination of information often times unchecked and untrue. The mass dispersion of false information, colloquially best termed as “fake news” created an urgent impetus to the Indian Legislature to regulate and curtail the use of social media platforms in order to protect the public at large from the negative impact of false information.

Prior to delving into the issue at hand it is essential to understand the legal landscape in which the legislation in question was proposed to be introduced. Social Media as a whole is operated on privately owned platforms called intermediaries. The Information and Technology Act, 2000 section 2 (w) defines Intermediaries as intermediaries with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes.

Intermediaries with respect to social media and media platforms in general refer to platforms that allow users to post or disseminate information without any interference with respect to the content therewith. Intermediaries being clearly at risk of prosecution for any information that may violate the IT Act, 2000 or the IPC, 1860 are protected by the safe harbour principle under Section 79 of the IT Act, 2000 which states that :

79. Exemption from liability of intermediary in certain cases.-
(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.

(2) The provisions of sub-section (1) shall apply if-
(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or

(b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;

(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;
(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.

The Safe Harbour or Safety Net principle reaffirmed in the landmark verdict of the Supreme Court in Shreya Singhal v Union of India, essentially grants immunity to Intermediaries as long as the same remove any third party content in violation of the law upon receiving notice. Therefore, the next step is identifying what amounts to content in violation of law. Focusing on Social Media due to its rapid growth over time the Central Government under the power to make rules granted under Section 87 of the IT Act, 2000 , introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, wherein duty was imposed upon the Intermediaries to carry out due diligence to ensure that third party content that fell under the exhaustive list of Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Rules”)

The Rules also include Rule 7 which states that Where an intermediary fails to observe these rules, the provisions of sub-section (1) of section 79 of the Act shall not be applicable to such intermediary and the intermediary shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code.

On 06.04.2023 the Central Government gave effect to an Amendment to Rule 3 adding to Rule 3 (1) (v) (“impugned Rule”)

(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;

The above - mentioned rule was challenged by the Petitioners, including Kunal Kamra a comedian by profession and a few media publication agencies on the grounds of violation of Article 14, 19 (1)(a) and 19 (1)(g) along with it being ultra vires of Sections 79, 87(2)(z) and (z)(g) of the Information Technology Act, 2000.

A Division Bench of HHJ G. S. Patel and HHJ Dr. Neela Gokhale heard the matter and vide Judgements dated 31.01.2024 wherein both the pusine judges disagreed on every issue in contention and gave a split verdict in the matter. The verdict not only disagreed on the constitutionality of the impugned Rule but also on the Interim Application to allow the Fact Checking Units (FCU) to come into force in the meantime. Both the pusine judges gave poignant and reasoned verdicts encapsulating the arguments of both sides and the jurisprudence thereof. Accordingly as per the Original Side Rules of the Bombay High Court, the matter was put before a single tie breaking judge.

HHJ. Patel’s Verdict
In a long and well penned Judgement, Justice Patel at offset observed that the Rule in question suffered from several informities making it wholly unconstitutional and ultra vires of Article 14, Article 19 (1) (a), 19 (1) (g) and Sections 79 and 82 of the IT Act. The lengthy analysis can be broadly broken down into the following : The Construction of the Amendment; The effect on the Fundamental Right to Free Speech; Chilling Effect and Marketplace of Ideals.

Classification

• Justice Patel observed that the Rule in question had been amended twice, the first amendment of 2022 introducing the requirement of Intermediary due diligence with respect to and third party information/content that 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, and the Amendment of 2023 i.e.the impugned Rule being challenged before the Bombay High Court introduced the latter half that reads 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;
   
• The Bombay High Court noted that the use of the conjunction “or” has the effect of creating two distinct classes. The first is the intentional or knowing spread of misinformation by the user which relates to any kind of misinformation that the user publishes with intent and knowledge that it is false . The Bombay High Court observed that “
  
  “The justification or reason for this is plain. For non-Central Government-business-related content there is no FCU. There is no arbiter of what is “patently false or untrue or misleading”. The requirement is that it is the user who must be aware that the content is “patently false or untrue or misleading” and must, with that awareness, “knowingly and intentionally” publish it. Therefore (i) awareness of patent falsity, untruth or misleading nature; (ii) knowledge; and (iii) intent.”
   
• The second class that follows the “or” is with reference to any misinformation regarding the business of the Central Government whose nature is to be determined by the Fact Checking Unit of the Central Government. Herein the onus is on the Intermediary to remove any content determined by the FCU to be false or misleading else fall under the rigour of Rule 7 of the Guidelines, 2021, taking away the protection of the Intermediary under Section 79 of the IT Act, 2000. The Bombay High Court observed :
  
  “ This is markedly different from the other class, content said to relate to ‘the business of the Central Government’. For this content, there is an arbiter: the FCU. It is the FCU that decides what is fake, false or misleading. Once it does so decide, and if the content continues to be hosted by the intermediary, irrespective of knowledge or intent of the user, there is an automatic loss of safe harbour and a liability to prosecution.”
   
• Therefore the first category placed the onus squarely on the user however the second category placed the onus of compliance with the FCU on the Intermediary under the threat of Rule 7 which upon non compliance with the central government would lead to loss of the safe harbour under Section 79 of the IT Act, 2000.
   
• The Bombay High Court on the question of classification relied on the decision of the Supreme Court that State of Rajasthan v Mukan Chand & Ors AIR 1964 SC 1633¹held that :
  “The Government does not ipso facto constitute a class of its own sufficient to justify preferential treatment. The differentiation must be intelligible, clearly distinguishing for discernible reason those within the class from those left out. This distinguishing is called classification. The distinguishment or differentiation must bear a rational nexus to the statutory objective”
   
• The Bombay High Court further held that the Central Government had created the sub classification in social media content, distinguishing its own business with that of all others without any justification as to why the same rules would not apply to fake news regarding any other entity. The Bombay High Court highlighted that the Press Information Bureau already carries out the function of correcting and/or clarifying any misinformation regarding the Central Government policies. Further the Court highlighted that the distinction between the Rules applied solely to the Central Government and does not extend to any other State Government, or State owned entities. The Bombay High court held that the classification in this case was wholly arbitrary and could not stand in light of Article 14.
   

On the Principle of Natural Justice
The Bombay High Court relying on the Supreme Court decision in AK Kriapak & Ors v Union of India & Ors. (1962) 2 SCC 262 ²held that the amendment being vague and broad had no inherent transparent structure to it. There was no clarity or answer as to how the FCU would function. The Bombay High Court held that it was abundantly clear that the Central Government was assuming the role of a judge in its own case, which is impermissible under the principles of natural justice. The Bombay High Court Further noted that there was no grievance redressal mechanism against the decision of the FCU as there was no need for the FCU to provide reasons for its decision.

Proportionality

• The Bombay High Court relied on the five fold test of proportionality enshrined in Gujarat Mazdoor Sabha & Anr v State of Gujarat (2020) 10 SCC 459 ³ wherein it was held : “
  
• A law interfering with fundamental rights must be in pursuit of a legitimate State aim.
1. Any law that infringes, abridges or abrogates the exercise of fundamental rights must bear a rational connection between the measure, the factual situation and objective or aim of the statute.
2. The measures must be shown to be (a) necessary and (b) not more excessive than needed.
3. Such restrictions must be shown to be necessary to protect or advance legitimate purposes; and
4. The State must provide sufficient safeguards against the abuse of such interference.”
    
• While it was the submission of the Petitioner that the amendment failed test number (v), it was the observation of the Bombay High Court that the Amendment in question was in violation of all five tests.
   
  
• The Bombay High Court observed that the impugned rule cannot operate outside the controlling statute. The impugned Rule is not made under Section 87(2)(z) of the IT Act. They could not have been. Therefore, the impugned Rule falls under Section 87(2)(zg). That in turn means it must be read with Section 79(2) (the safe harbour provision in the IT Act). Section 87(2)(zg) directly references Section 79(2); i.e., safe harbour. This is another reason it is impossible to argue that the impugned Rule does not result in loss of safe harbour if not followed; the loss of safe harbour is the Rule’s intent
   
• The Bombay High Court stated that no rule making power could be exercised outside the scope of Article 19 (2) of the Constitution of India. The Bombay High Court held that :
  “Further, what the impugned Rule does is to create substantive law beyond the parent statute. Nothing in Section 69A or Section 79 permits this targeted unilateralism in relation to digital content. The substantive law created is this: the intermediary, on receiving a communique from the FCU or the Central Government, and without any of the protections of Section 69A (which have oversight in the form of a mechanism for the most serious issues, inter alia by requiring reasons and by following prescribed procedures and safeguards), must, at the risk of losing safe harbour, excise the content so identified. That is not mere rule-making. That is substantive law.”
   

Chilling effect and marketplace of ideals

1. In a judgment addressing the "Chilling Effect" and the "Marketplace of Ideas," the court examined the implications of these two concepts in the context of free speech. The chilling effect refers to indirect censorship, where a combination of factors leads to self-censorship by individuals or entities controlling content. Knowing that certain content could be banned or lead to negative consequences, creators may choose to withhold their work, curbing their freedom of expression.
    
2. On the other hand, the "marketplace of ideas" emphasizes the exchange of diverse perspectives and opinions, crucial to upholding the right to free speech. This concept does not imply commercialization but rather the open, often uncomfortable, space where ideas can be freely debated and disagreed upon. The court highlighted that dissent and disagreement are essential to freedom of expression, underscoring that public discourse must remain civil, even in disagreement.
    
3. The court cited past cases, such as Srishti School of Art, Design & Technology v Chairperson, Central Board of Film Certification 2011 SCC OnLine Del 1234⁴, where free speech was staunchly defended. In this case, Justice Muralidhar echoed the sentiment of Justice Harlan in Cohen v. California, emphasizing that restrictions on speech should be narrowly construed, and the state must justify any curtailment of this right.
    
4. Furthermore, the court referred to international cases, such as the Israel Supreme Court’s decision in Israel Film Studios Ltd. v. Gerry (1962) Isr SC 152407 (at 2416)⁵, which rejected the state’s attempt to censor a film under the guise of presenting a "complete" perspective. Justice Landau warned that when a state decides what its citizens should know, it risks controlling what they think, contradicting democratic principles. Similarly, in Bakri v. Film Censorship Board, (2003) Isr SC 58 (1) 249,⁶, the Israeli court held that even offensive films could not be censored if they did not pose a concrete threat to public order.
    
5. In the recent Kaushal Kishor v State of Uttar Pradesh 2023 4 SCC 1⁷, the Supreme Court reiterated that restrictions on free speech under Article 19(2) must be strictly confined to those enumerated in the Constitution. The court cautioned against imposing additional limits through executive actions or judicial interpretation, as doing so could erode fundamental rights.
    
6. This judgment highlights the delicate balance between free speech and state-imposed restrictions, reaffirming the importance of dissent, debate, and the diversity of ideas in preserving democratic freedoms.
    

HHJ Dr. Neela Gokhale’s Verdict
Whether the impugned Rule is ultra vires Section 79 of the parent Act, authorising automatic deprivation of safe harbour for intermediaries on grounds beyond Article 19(2) of the Constitution and contrary to the judgment in Shreya Singhal?

• Taking a binary stand the Bombay High Court relied on the Supreme Court decision State of Tamil Nadu v. P. Krishnamurthy (2006) 4 SCC 517⁸, and held that the inclusion of the rules is a legal expression of subordinate legislation. The Court held that the onus of proving that the subordinate legislation is ultra vires falls upon the Petitioners. The Bombay High Court further defined the standards of the test of manifest arbitrariness laid down in the Supreme Court decision in Natural Resources Allocation in Re. (2012) 10 SCC 1⁹, wherein it was held that :
  
  “That the test to determine manifest arbitrariness is to decide whether the enactment is drastically unreasonable and/or capricious, irrational or without adequate determining principle, with favouritism and nepotism and not in pursuit of promotion of healthy competition and equitable treatment. To test this and for better understanding, the unamended portion and the amended impugned portion of Rule 3(1)(b)(v) is analysed separately. Due Diligence under the unamended Rule obliged the intermediary to make ‘reasonable efforts’ to cause the user of its computer resource not to host any information that knowingly or intentionally communicates any misinformation or information patently false and untrue or misleading in nature. Thus, if an intermediary learns of any offensive information, suo-moto or upon a complaint, it is expected to make ‘reasonable effort’ to cause the user not to host the same. The Intermediary, as per its existing policy is bound to put it through its various filters and act accordingly. This, the intermediary does in case of any of its user or subscriber. Even a Government Department or a Ministry as its ‘user’ or ‘subscriber’ can report a complaint being aggrieved by any offensive content and the intermediary follows the same practice as in the case of any individual user or complainant. Upon failure to act and discharge due diligence even as per the unamended Rule, it stands to lose safe harbour.”
   
• The Bombay High Court further observed that the Amendment did not issue a take down notice to the Intermediary, but merely requires it to provide a disclaimer. The Rule merely required “reasonable effort” from the Intermediary. The Bombay High Court held :
  
  Notably, the grievance of the Petitioners is based on second guessing the intent of the government, attributing to it an invidious motive to ensure repression of criticism of its policies or as the Petitioners put it, the all-pervasive business of the Central Government. The insistence of the Petitioners to deny the availability of an option of a ‘disclaimer’ inherent in the Rule is incomprehensible. With greatest respect, I am unable to subscribe to the interpretation that ‘to not host’ only means a ‘take down’. Thus, the Petitioners' challenge to the curtailment of their free speech right by a direction of take down fails.
   
• The Bombay High Court observed that in Shreya Singhal v. Union of India, the Supreme Court struck down Section 66A of the Information Technology Act but upheld Section 69A. The Bombay High Court differentiated between the two provisions, emphasizing that Section 69A is narrowly framed with built-in safeguards. It allows blocking public access to information only when the Central Government is satisfied that it is necessary, and this process must follow the 2009 Blocking Rules. These rules require written reasons for blocking, making them challengeable under Article 226 of the Constitution. The Apex Court had already examined these rules and deemed them valid.
   
• The Bombay High Court also referenced Section 79 of the IT Act, which was subject to challenge in Shreya Singhal. Section 79(3)(b), which curtails the "safe harbour" protections of intermediaries, was read down to apply only to matters related to restrictions under Article 19(2). The court reiterated that loss of safe harbour occurs only if the information exceeds the restrictions in Article 19(2). Therefore, the impugned Rule aligns with the guidelines set under Section 69A and is not ultra vires the Parent Act.
   
• Lastly, the Bombay High Court cited the Agij Promotion of Nineteenonea Media Pvt. Ltd Writ Petition (L) No. 14172 of 2021¹⁰. where the validity of blocking provisions under the IT Act and the Blocking Rules was upheld. The court held that emergency blocking under Rule 16 is aligned with the restrictions in Article 19(2), such as concerns over sovereignty, state security, or public order.
   

Whether the impugned Rule violates Article 14 of the Constitution by making the Central Government an arbiter in its own cause requiring the intermediaries to act pursuant to identification of information as fake, false or misleading by the FCU of the Central Government ?

• The Bombay High Court observed that the FCU Is not at arbiter of its own truth. The Bombay High Court took a pragmatic view stating that merely because the FCU is a unit of the Central Government, an inherent bias cannot be presumed. The charter of the FCU is undetermined and therefore cannot be called unconstitutional prior to its implementation. Therefore a challenge under Article 14 would be premature.
   
• The Bombay High Court relied on the Supreme Court decision in Crawford Belly and Co. v. Union of India (2006) 6 SCC 2025where the Supreme Court held that mere association with the Government by virtue of a person cannot attract the allegation of bias, it must be proved that the bias is personal or there is motivation for bias. The Court therefore concluded that it would be logical that the FCU would be appointed by the Government as they would be privy to the business of the Government as the same would be required to carry out the duties in the impugned Rule.

Whether loss of safe harbour for Intermediaries has a direct ‘Chilling Effect’ on Free Speech of the ‘User’ where the right is directly stifled by compelling the intermediary to act in aid of a direction by the FCU, failure of which results in an automatic loss of immunity under Section 79 of the Act to the Intermediary.

• The Bombay High court observed that the implementation of the rule itself does not create any chilling effect whatsoever on the expression of freedom of speech on Intermediary Platforms. The Bombay High Court further stated that the impugned Rule by itself does not create any penalizing effect on the Intermediary, and that a grievance redressal mechanism is available under the Guidelines.
• The Bombay High Court in the present dissenting judgement interprets the text of the impugned Rule as a whole and not as two separate classes. It states that even under the impugned Rule intention and knowledge are qualifying factors that must be established before any action is taking in violation of the Rule. The Bombay High Court herein stated that should a user be aggrieved by the flagging of the content viz a viz the impugned Rule the same may be challenged vide the Grievance Redressal Mechanism.
• The Bombay High Court further emphasized that the fake and misleading information mentioned in the rules do not fall within the ambit of freedom of speech and expression under Article 19(1)(a) of the Constitution of India. The Bombay High Court relied on the Supreme Court decision of Amish Devgan vs.. Union of India (2021) 1 SCC 1wherein it was held that :
  
  “Freedom and rights cannot extend to create public disorder or armour those who challenge integrity and unity of the country or promote and incite violence. Without acceptable public order, freedom to speak and express is challenged and would get restricted for the common masses and law-abiding citizens. This invariably leads to State response and, therefore, those who indulge in promotion and incitement of violence to challenge unity and integrity of the nation or public disorder tend to trample upon the liberty and freedom of others”
   
• The Bombay High Court therefore opined that as long as the content shared on the Intermediary does not offend the restrictions placed on Article 19 (1) (a) of the Constitution of India there will be no adverse action taken against the Intermediary under Rule 7 of the Guidelines and the safe harbour principle remains intact. The Bombay High Court emphasized that the impugned Rule does not restrain or restrict any shared content unless the same bears ‘actual malice’ i.e. patently false, untrue and is communicated with “actual malice” i.e., “with knowledge of its falsehood and with reckless disregard for the truth and is deceptively passed off as and statement of truth.”
   

Whether the terms ‘fake’, ‘false’ and ‘misleading’ and ‘business of the Government’ are over-broad and vague, vulnerable to subjective determination and are predicated on a true-false binary.

• The Bombay High Court concluded that the impugned Rule is not overly broad or vague as argued by the petitioners. The court clarified that the Rule specifically targets intentionally false information, requiring that the user knowingly shares such content with malicious intent. It emphasized that subjective interpretation does not arise in cases of "fake" facts, as fabricated or non-existent information is inherently false.
   
• The Bombay High Court further addressed concerns that the Rule might suppress satire, parody, or criticism. It stated that content based on existing facts, regardless of how critical it is of the government, does not fall under the Rule’s scope. Legitimate criticism, satire, or opinion is protected as long as it is not based on demonstrably false information.
   
• On the issue of vagueness in the term "business of the Government," the Bombay High Court found that the Rule does not suffer from ambiguity. It acknowledged that the Press Information Bureau (PIB), as a fact-checking unit, plays a crucial role in determining whether information related to government business is false, fake, or misleading. Importantly, the Rule applies only to cases where false information is knowingly and intentionally shared, and the courts will have the final say in determining knowledge and intent.

Whether the Rule meets the test of proportionality

• The Bombay High Court in the dissenting opinion applied the test of proportionality in order to determine the constitutional validity of the impugned Rule. The Bombay High Court relied on K. S. Puttaswamy v Union of India (2019) 1 SCC 1 ¹¹wherein it was held that :
  
  Dr. Chandrachud, Chief Justice of India in K.S. Puttuswami
  
  (Aadhar-5 J) v. Union of India laid down the tests that would need to be satisfied under the Constitution in the following words:
   
  “325. ....... The third principle adopts the test of proportionality to ensure a rational nexus between the object and the means adopted to achieve them. The essential rule of the test of proportionality is to enable the Court to determine whether a legislative measure is disproportionate in its interference with the fundamental rights. In determining this, the Court will have regard to whether a less intrusive measure could have been adopted consistent with the object of the law and whether the impact of the encroachment on a fundamental right is disproportionate to the benefit which is likely to ensue.”
  
  Sanjay Kishan Kaul, J in his concurring opinion, suggested a four -pronged test as follows:
1. the action must be sanctioned by law.
2. the proposed action must be necessary in a democratic society for a legitimate aim.
3. the extent of that interference must be proportionate to the need for such interference, and
4. There must be procedural guarantees against abuse of such interference.”
    
• The Bombay High Court held that the freedom of expression of an individual extends to the vehicle of expression. The Bombay High Court observed that the purpose of the impugned Rule is for the Central Government to combat the rapid expanse of social media and the growing threat of misinformation and deep fakes. The Bombay High Court further observed that the use of misinformation and fake news may have a direct negative impact on democracy and elections.
   
• The Bombay High Court further held that :
  “60. From the foregoing discussions it is clear that the Rule cannot be struck down as invalid merely on concerns of its potential abuse. The Petitioners/users always have a right to approach the court in case any action is taken by the intermediary affecting their fundamental rights under Articles 14, 19 and 21, despite the information shared by them not falling within the meaning of ‘offensive information’ in terms of the Rule. There is no unconstitutionality in the Impugned Rule “
   
• Therefore the Court concluded that the impugned Rule falls within the test of proportionality.
   

Tie Breaker
Due to the Division Bench of the Bombay High Court delivering two distinct and opposing judgements disagreeing on every issue raised, it became imperative for the matter to be put up before a Single Judge Bench of the Bombay High Court to determine the constitutionality of the impugned Rule.

On Article 19 (1) (a) and Article 19(2)

• The Single Bench of the Bombay High Court held that it agreed with the judgement of J Patel with respect to the application of Kaushal Kishore that any restrictions not falling within the four corners of Article 19 (2) of the Constitution would be unconstitutional.
   
• The Single Bench of the Bombay High Court affirmed that the right to freedom of speech does not include within itself the “right to truth” nor is it the responsibility of the State to ensure that citizens are entitles only to information that is absolutely true. The Single Bench in holding the impugned Rule ultra vires held that
  
  “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 Constitution.”
   

On Violation of Article 19 (1)(g) read with Article 19(6)
The Single Judge Bench of the Bombay High Court in agreement with J Patel’s verdict upholding the challenge based on violation of the right guaranteed under Article 19 (1) (g) of the Constitution of India. The Single Judge Bench held that a piece of information that is not subject to the rigours of the impugned Rule in print media cannot be subject to the same rigours in a digital form. The Single Judge Bench held that there is no rational basis as to why the measures of fake information is only dealt with digitally but not in print.

On the Violation of Article 14 and the Government being the final arbiter of its own cause
The Single Judge Bench of the Bombay High Court held that the impugned Rule did give the Central Government the power to set up the FCU and therefore decide what information pertaining to its own business was false and misleading. The Single Judge Bench pointed out that both judgements were in agreement that the functioning of the FCU with regard to the manner and method of its operation and determination of what constitutes fake and false information was unknown. The Single Judge Bench dismissed the contention that challenge of the FCU’s action in a constitutional court may amount to sufficient safe guards.

On Classification

• The Single Judge Bench of the Bombay High Court in agreement with the view taken by J. Patel held that the use of the word or in the impugned Rule created two distinct classes being Non - Government business and Government Business, and therefore the words intentionally and knowingly would apply squarely to the Non - Government business but the same did not apply to Government Business.
   
• The Single Judge Bench observed that
  
  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 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 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.
   

On saving the impugned Rule by reading down

• The Single Judge Bench of the Bombay High Court observed that limiting the operation of the impugned Rule solely to "fake or false" information, while ignoring the term "misleading," as used in Rule 3(1)(b)(v), would not constitute an act of reading down but would instead amount to "reading out" the expression. This, the Bench noted, is impermissible, as held by the Supreme Court in Shreya Singhal. Since the words "fake or false or misleading" are used disjunctively in Rule 3(1)(b)(v), the Bench concluded that each term must be given its proper meaning and effect. These terms are specifically used in the context of information hosted by intermediaries.
   
• Additionally, the Bench noted that the word "information," as defined inclusively under Section 2(1)(v) of the Information Technology Act, 2000, cannot be restricted by the argument that the impugned Rule was not intended to affect political views, satire, or opinions, and should only apply to factual content. Citing the Supreme Court's decision in Minerva Mills Limited, the Bench held that the principle of reading down cannot be invoked contrary to the legislature's clear intent. Therefore, giving a restrictive meaning to an inclusive definition is not permissible under the doctrine of reading down.
   
• The Bombay High Court concluded that attempting to "read down" the Rule would not save its validity. The Rule, as amended, suffers from vagueness and overbreadth, and thus cannot be sustained on these grounds.
   

On the aspect of proportionality

• The Single Judge Bench of the Bombay High Court opined that the challenge to the impugned Rule, based on its failure to satisfy the proportionality test, must be upheld, particularly when it seeks to abridge the fundamental rights guaranteed under Articles 19(1)(a) and 19(1)(g) of the Constitution of India. The Bench noted the absence of adequate safeguards to prevent abuse of the Rule, which could interfere with these fundamental rights.
   
• Having concluded that the validity of the impugned Rule cannot be preserved through the process of reading it down, the Bench rejected the Union of India's argument that the least restrictive method had been adopted to prevent the spread of "fake, false, or misleading information." Citing previous decisions, the Bench found this contention untenable.
  
  In light of these observations, the Bombay High Court concluded that the impugned Rule also fails on the grounds of proportionality and, therefore, cannot be sustained, as similarly observed by Justice Patel.
   

Conclusion
Accordingly the Single Judge Bench of the Bombay High Court struck down the impugned Rule on the following grounds :
“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.
(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.”

By - Parshva Shah