Courts Test State’s Role as Digital FactChecker
- Sakshi Mishra
- Jul 6
- 3 min read
India’s ongoing legal battle over the 2023 amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules represents one of the most significant constitutional confrontations in the digital era. At the heart of the dispute is the government’s attempt to empower a Fact Check Unit (FCU) to label online content related to the “business of the Central Government” as “fake, false, or misleading,” compelling social media intermediaries to remove such content or risk losing their statutory safe-harbour protection under Section 79 of the Information Technology Act, 2000. Petitioners argue that this framework violates the fundamental right to freedom of speech under Article 19(1)(a) and exceeds the narrowly defined restrictions permitted under Article 19(2) of the Constitution. India’s digital regulatory framework has evolved from the Information Technology Act, 2000, which established the foundational principles of intermediary liability and safe-harbour protection, through the 2011 Intermediary Guidelines and the expansive 2021 IT Rules. A decisive constitutional turning point came with the Supreme Court’s landmark judgment in Shreya Singhal v. Union of India (2015), which struck down Section 66A of the IT Act for vagueness and overbreadth, firmly holding that speech restrictions must strictly fall within the exhaustive grounds enumerated under Article 19(2). The Court also emphasised that vague laws create a “chilling effect,” forcing citizens and platforms into self-censorship. The 2023 amendments reignited these constitutional concerns by introducing Rule 3(1)(b)(v), which effectively made the executive branch the arbiter of truth regarding its own affairs. The absence of procedural safeguards such as notice, hearing, or reasoned orders distinguished the FCU mechanism from Section 69A of the IT Act, which had survived constitutional scrutiny precisely because of its procedural protections. Critics argued that allowing the government to judge the truthfulness of speech about itself violated principles of natural justice and equality before law under Article 14. The legal challenge, led prominently by political satirist Kunal Kamra and media organisations, reached a crucial stage in January 2024 when the Bombay High Court delivered a split verdict. Justice Gautam Patel held the rule unconstitutional, finding it violative of Articles 14, 19(1)(a), and 19(1)(g), while Justice Neela Gokhale upheld the rule, viewing it as a proportionate response to deliberate misinformation. The deadlock was resolved by a tie-breaking opinion from Justice A.S. Chandurkar in September 2024, who struck down the rule, holding that it was ultra vires the IT Act, failed the proportionality test, and lacked mandatory procedural safeguards. Parallel to these proceedings, the Supreme Court of India intervened by staying the government’s notification establishing the FCU, acknowledging that the case raised serious constitutional questions affecting free speech and professional freedom. Although the Bombay High Court ultimately struck down the rule by a 2:1 majority, the legal saga remains unresolved. In February 2026, the Supreme Court restored the Union Government’s appeal, reopening the constitutional debate and leaving the final determination to the apex court. The controversy has expanded further with challenges to the Sahyog Portal and amendments to Rule 3(1)(d), which petitioners argue create a parallel content-blocking regime without judicial oversight. These developments raise broader concerns about executive overreach, delegated legislation, and the erosion of procedural due process in digital governance. At its core, the dispute poses a fundamental constitutional question: whether a democratic state can appoint itself as the ultimate arbiter of truth in digital discourse without undermining free speech, equality before law, and the marketplace of ideas. The Supreme Court’s eventual ruling will not only determine the fate of the FCU but will also shape the future contours of digital democracy, press freedom, and constitutional governance in India.
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