The 2023 amendment to regulate online content was held unconstitutional for violating fundamental rights, lacking clear guidelines, and enabling arbitrary government censorship.

JUDGMENT :

(G.S. Patel, J.) :

A. INTRODUCTION & OVERVIEW

1. These cases seem to me to represent an issue of significant immediacy in our times. On the one hand, the seemingly limitless reach and expansion of modes of communication over the internet, especially through social media. On the other, digital technology — the very one that powers the internet — now also allows, in a manner and to an extent never known before, the manipulation of information — text, graphic, videographic — to generate almost indetectable false information; information often revealed after the event to be ‘fake’. This is far beyond mere forgery; it is something else altogether: an entire chunk of information is manipulated to produce something wholly false. The voice of a famous politician is replicated with words he never spoke. The face of an actor is superimposed on a body and nobody can tell. This is not parody. This is not a prank. But because these fakes — most especially the ‘deep fakes’ where entire videos are conjured up — have such verisimilitude and because they, too, are capable of instant global propagation via the internet, their influence is profound. The boundaries between truth and falsehood are blurred. And with that, comes the blurring of the dividing line between the constitutional guarantee of the freedom of speech and expression and state-imposed limits on it. After all, who is to decide what is fake or false and what is authentic?

2. The several Petitioners and the Applicant, different voices from different quarters, are united in their complaint about the Central Government’s 2023 amendment to a particular Rule under the Information Technology Act. This amendment, they all say, has just one purpose: to muzzle criticism and questioning of the Central Government as it goes about its ‘business’, to stifle dissent from what the Central Government puts out in regard to affairs of the state. Through this amendment, the Central Government has anointed itself as the sole arbiter of what is or what is not ‘fake, false or misleading’. It, and it alone, will decide this, including the entirely ambiguous term ‘misleading’; and when it does, dare any ‘intermediary’ allow such information to continue to be hosted on a social media platform, that intermediary immediately risks losing statutory protection. The entire amendment is overbroad, vague and without controlling guidelines. It does not even provide for an opportunity for the propounder of any information to defend its correctness, and the government becomes a judge in its own cause (hence another dimension of violation of principles of natural justice).

3. The impugned Rule is ultra vires the governing parent Act, goes the submission. It purports to do that which the Act itself cannot. No rule by executive action, made under any rule-making power, can either go beyond the statute or do what the statute cannot.

4. Therefore, the amendment in question is, the Petitioners say, violative of constitutional freedoms; specifically, those guaranteed under Article 19(1)(a) of the Constitution of India, the right to free speech. At least one Petitioner has an argument positioned under Article 19(1)(g)