Unravelling the Bombay High Court’s Ruling on Freedom of Speech and Expression in the Digital Age

Shelal Lodhi Rajput

Associate in the Dispute Resolution Team at a law firm in New Delhi

Introduction

On 20 September 2024, Justice Chandurkar delivered the deciding judgment in Kunal Kamra v Union of India following a split decision on the matter in January 2024 by the Division Bench of Justices Patel and Dr Gokhale. Justice Patel had sided with the petitioners, declaring that Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (as amended in 2023) – relating to the removal of misleading content from social media platforms – was unconstitutional. The Bombay High Court ruled that the IT Rule violates the right to freedom of speech and expression under Article 19 of the Indian Constitution. The case underscores the ongoing tension between governmental overreach and the protection of free speech in the digital realm, raising concerns that resonate beyond India’s borders.

The case stems from a challenge to the IT Rules, which empowers the Indian government to flag content deemed "fake, false, or misleading" related to the "business of the Central Government" through Fact Checked Units (“FCU”). It mandates intermediaries, including social media platforms, to take down such content or risk losing their "safe harbour" protection under Section 79 of the IT Act. The IT Rule’s intent, according to the government, was to curb the spread of misinformation about the government’s work.

The petitioner challenged the constitutionality of the impugned IT Rule as it disproportionately restricted free speech, lacked clarity, and placed excessive control in the hands of the state The key concern was that the IT Rule would lead to indirect censorship of content critical of the government, posing a severe risk to free speech and expression, including legitimate dissent and satire, by making the government the final arbiter of what constitutes ‘fake news’.

Fostering Free Speech and Human Rights

Justice Chandurkar’s deciding judgment hinged on two grounds.  First, the applicability of fundamental rights beyond the State, and second, the interpretation (or 'reading down') of such rights when they conflict with other legal principles or legislative frameworks. This 'reading down' approach, ensures that any limitations on fundamental rights align with constitutional mandates while still allowing for their enforcement in broader contexts. The court held that Rule 3(1)(b)(v) violates Article 19 of the Indian Constitution. This was owing to the rule’s ambiguity and the lack of clear guidelines on what constitutes “fake or false or misleading” information.

India’s free speech jurisprudence has evolved over time, particularly in the context of digital rights. In Shreya Singhal v. UOI (2015), the Supreme Court struck down Section 66A of the IT Act for its vagueness, holding that it could have a 'chilling effect' on free speech. Also, the Supreme Court expanded the scope of freedom of speech and expression in Kaushal Kishore by ruling that “Fundamental rights under Art.19/21 can be enforced even against persons other than the State or instrumentalities”. Instrumentalities refer to entities or organizations that perform public functions or are controlled by the State, like public sector undertakings, but which may not be strictly part of the government. As in Shreya Singhal, the court in Kunal Kamra found that the IT Rule failed to meet the requirements of Article 19(2), which allows the state to impose reasonable restrictions on free speech only in the interest of sovereignty, security, and public order, among other grounds.

The BHC’s reliance on Shreya Singhal and Kaushal Kishore reflects an attempt to maintain consistency with the Supreme Court’s progressive free speech jurisprudence. The reasoning that vague laws give governments excessive power to regulate speech echoes global concerns about digital censorship.  For example, the European Court of Human Rights in Delfi AS v. Estonia (2015) also dealt with intermediary liability, setting standards for when platforms should be held accountable for user content. However, it emphasized that liability must be proportionate and clearly defined, applying the test of proportionality that appears lacking in the IT rule as discussed at length by the BHC (Para 53-55).

From a human rights perspective, the verdict underscores the essential principle that free speech forms the bedrock of democratic societies. Justice Chandurkar, aware of the potential for States’ overreach, applied a proportionality test to assess whether the rule served a legitimate aim and whether it was narrowly tailored to achieve that aim. It was held that IT Rules failed the proportionality test and violated fundamental rights (Article 14 and 19(1)(a) of COI). Notably, this judgment aligns with Article 19 of the Universal Declaration of Human Rights (UDHR), which protects the right to freedom of opinion and expression. The BHC reiterated that freedom of speech includes the right to receive diverse opinions and information, and any attempt to impose a “single source of truth” is antithetical to democratic values.

Justice Chandurkar, aligning with Justice Patel’s view from the split verdict, held that Rule 3(1)(b)(v) had a “chilling effect” on free speech, and rejected the argument that the government’s FCU, which decides what constitutes "fake or false or misleading" content, was a reasonable restriction. Further, by failing to provide a precise definition of what constitutes “fake, false, or misleading” information, the amended rule left room for arbitrary enforcement. The threat of penalties or loss of safe harbour status might compel intermediaries to over-censor content. Such self-censorship, the court ruled, is incompatible with the robust protection of free speech envisaged under the Constitution. The ruling acknowledged that granting the government such unrestricted or unchecked powers over digital content could stifle dissent and free expression, particularly as political speech often engages in satire, or hyperbole, none of which should be subject to state regulation. As I have previously argued elsewhere, the judgment also confirms that the IT Rules lead to what Margot Kaminski has termed as conforming effect.

Conclusion

As I have argued elsewhere, Justice Brennan’s remarks  from the decision in NAACP v. Button fit aptly here to commend the BHC’s judgment These remarks state that the freedom of speech needs “breathing space to survive”, meaning that freedom of expression is being protected and by declaring the IT Rule as unconstitutional the BHC has provided this breathing space. The ruling reinforces the judiciary’s role as a bulwark against governments’ overreach in the digital age, where freedom of speech and expression faces unprecedented challenges. Justice Chandurkar has once again underscored the centrality of human rights in India's constitutional framework, setting a significant precedent for future challenges to free speech in the digital realm. This judgment reinforces the understanding that mere falsity does not justify restricting speech unless it falls under the specific heads of Article 19(2). Allowing such control risks authoritarian interference and suppresses meaningful democratic discourse.

As India continues to grapple with the challenges of regulating digital content, this ruling may well set the stage for further scrutiny by the Supreme Court as other similar claims against the IT Rules are also pending before other High Courts, where a final resolution will likely balance governmental interests with the constitutional mandate to protect free speech. Finally, the practical significance of this ruling cannot be overstated. With the Supreme Court recently transferring cases challenging other provisions of the IT Rules to the Delhi High Court, The BHC's ruling could potentially influence the Delhi High Court’s review of other IT Rules provisions, which similarly overreach constitutional boundaries.

Shelal Lodhi Rajput is an Associate in the Dispute Resolution Team at a law firm in New Delhi. He is a recent graduate from Symbiosis Law School, Pune, holding a BBA LL. B (Hons) degree with distinction, including a certificate of merit, and was awarded a gold medal for being the batch topper.

The author would like to extend an acknowledgment to Bhatia and Devadasan as their scholarship critically helped him to develop this argument.

Suggested citation: Shelal Lodhi Rajput, ‘Unravelling the Bombay High Court’s Ruling on Freedom of Speech and Expression in the Digital Age’ IACL-AIDC Blog (21 November 2024) Unravelling the Bombay High Court’s Ruling on Freedom of Speech and Expression in the Digital Age — IACL-IADC Blog