[Answered] Discuss the constitutional limitations on free speech under Article 19(2) and analyze whether government-imposed fact-checking units could be considered a legitimate restriction.

The ruling by Justice A.S. Chandurkar of the Bombay High Court on September 20, 2024, underscores the constitutional limits on restricting free speech in India, particularly about Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules).

Constitutional Limitations on Free Speech under Article 19(2)

• Public Order and National Security: If misinformation or fake news poses a threat to public order or national security the government could justify fact-checking as a means to prevent harm. For instance, the spread of misinformation during elections, pandemics, or communal tensions could disrupt public order or undermine national security, thereby justifying a restriction.
• Sovereignty and Integrity of India: In cases where misinformation undermines the sovereignty or integrity of India, such as false narratives designed to provoke separatist movements or cyber-attacks with disinformation, fact-checking measures could be considered legitimate. A robust mechanism to combat such disinformation aligns with the interests protected under Article 19(2).
• Defamation and Morality: Fact-checking could also be valid in cases involving defamation or decency. For example, misinformation that damages reputations or violates decency standards in public discourse could be grounds for government intervention, as long as it is within the bounds of protecting individuals’ rights and maintaining public standards.

Concerns Regarding Government-Imposed Fact-Checking Units(FCUs)

• Arbitrariness: The risk of government agencies using fact-checking as a tool to suppress dissent or criticism is a major concern. If these units function without transparency or judicial oversight, they could infringe on free speech under the guise of maintaining public order or security.
• Reasonableness of Restrictions: For the restriction to be constitutionally valid, it must be reasonable, meaning it should not be disproportionate or arbitrary. Any action that goes beyond addressing misinformation related to public safety or defamation and ventures into silencing political criticism or curbing journalistic freedom could be deemed unconstitutional.
• Chilling Effect: Excessive reliance on fact-checking by government entities might lead to a chilling effect, where individuals or media outlets avoid discussing sensitive topics due to fear of government scrutiny or penalties. This would inhibit healthy democratic debate, which is a core component of free speech.

Conclusion

The Bombay High Court’s ruling on the amendment to the IT Rules, 2021, defends the constitutional guarantee of free speech by striking down a provision that would have allowed government censorship under the guise of fact-checking. This ruling preserves the balance between tackling misinformation and protecting the fundamental right to freedom of speech and expression.