Kunal Kamra v. Union of India: the Fact Check Unit and the 2-1 split

The facts in brief

On 6 April 2023, the Ministry of Electronics and Information Technology amended Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The amended Rule required intermediaries to make reasonable efforts not to host or publish information identified as "fake, false or misleading" by a Fact Check Unit notified by the Central Government — specifically in respect of "any business of the Central Government". The consequence of non-compliance was loss of safe-harbour protection under Section 79 of the IT Act, 2000.

Three lead petitioners moved the Bombay High Court within weeks of the notification.

Kunal Kamra, stand-up comedian, filed W.P.(L) No. 9792 of 2023. Kamra's professional practice — political satire that frequently addresses Central Government policies and personalities — placed him squarely in the zone where the Fact Check Unit's "fake, false or misleading" determination would chill his constitutionally protected speech.

The Editors Guild of India filed W.P.(L) No. 9821 of 2023, framing the challenge institutionally on behalf of the digital-news editorial community.

The Association of Indian Magazines filed a companion petition.

The Union defended on the basis that the Fact Check Unit was a narrow mechanism limited to information about Central Government business, that intermediaries retained court remedies, and that the rule advanced public order under Article 19(2).

On 20 March 2024 — during the pendency of the Bombay High Court proceedings — the Press Information Bureau's Fact Check Unit was notified as the Fact Check Unit under the proviso to Rule 3(1)(b)(v). The Supreme Court, on 21 March 2024 in SLP (C) No. 6311 of 2024, by a bench of D.Y. Chandrachud, C.J., J.B. Pardiwala, J., and Manoj Misra, J., stayed the PIB-FCU notification pending the Bombay High Court's final adjudication.

On 31 January 2024, the Bombay High Court division bench delivered a split verdict. Justice G.S. Patel struck down the amendment as unconstitutional. Dr Justice Neela Gokhale upheld it. The matter was referred under the Bombay High Court Rules to a third judge.

Chief Justice Devendra Kumar Upadhyaya nominated Justice A.S. Chandurkar to deliver the tie-breaking opinion. On 20 September 2024, Chandurkar J. agreed with Patel J. The 2-judge bench then issued the final operative judgment on 26 September 2024 striking down Rule 3(1)(b)(v) as inserted in 2023.

The constitutional question

The challenge raised four constitutional objections.

First, vagueness. "Fake, false or misleading" carries no ascertainable standard. Whether information is "misleading" is itself a contested judgment. Without judicially manageable standards, the Rule offers the Fact Check Unit unguided discretion to brand content — a vice independently fatal under Shreya Singhal v. Union of India, (2015) 5 SCC 1.

Second, state as judge in its own cause under Article 14. The Fact Check Unit operates under the Ministry of Information and Broadcasting. Its remit is information "in respect of the business of the Central Government". The Central Government — through one of its arms — is identifying content about itself as false and directing intermediary action. The structural conflict of interest violates a basic norm of natural justice.

Third, chilling effect under Article 19(1)(a). Satire, political commentary and opinion journalism about Central Government policies are at the heart of Article 19(1)(a) protection. Rule 3(1)(b)(v) penalises intermediaries for failing to act on FCU flags, creating a structural incentive for over-compliance. Platforms will remove content pre-emptively rather than risk safe-harbour loss.

Fourth, inter-medium discrimination under Article 14 and Article 19(1)(g). Print and broadcast media addressing the same Central Government business are not subject to a Fact Check Unit mechanism. Online speech treated differently without a rational basis violates Article 14 and burdens the petitioners' freedom to carry on their profession under Article 19(1)(g).

What the Court held

Justice Chandurkar (tie-breaking opinion, 20 September 2024)

Justice Chandurkar's opinion became the majority view and shaped the final operative judgment.

The impugned Rule fails on the test of proportionality. The means of identifying "fake, false or misleading" information through a Fact Check Unit, which is part of the Central Government, is not the least restrictive means of achieving the stated objective.

Vagueness and overbreadth. The terms "fake, false or misleading" are vague and overbroad. They offer no ascertainable standard. The category "misleading" in particular is incompatible with Article 19(1)(a) because it can extend to opinion, satire and political commentary — categories of speech that the Constitution protects regardless of whether the executive considers them accurate.

State as judge in its own cause. Chandurkar J. held that no organ of the state can be judge in its own cause on the truthfulness of speech about itself. The Fact Check Unit operates under MIB, evaluating content about Central Government business. The objectively reasonable apprehension of bias is structural and not curable by procedural safeguards.

It is a basic tenet of natural justice that no one can be a judge in his own cause. The Central Government would be a stakeholder in the information that pertains to it.

Proportionality. The Rule fails the proportionality test as articulated in Anuradha Bhasin v. Union of India, (2020) 3 SCC 637. The least-restrictive-means analysis is decisive: civil and criminal remedies for defamation and false news already exist, and a Fact Check Unit within the executive is not the narrowest available means.

Travelling beyond the rule-making power. The Rule travels beyond what Section 87(2)(z) of the IT Act authorises. Parliament did not authorise the executive to empower an administrative committee to determine content truthfulness as a precondition for safe-harbour protection. The amendment is in substance a substantive content-regulation regime introduced through subordinate legislation.

Inter-medium discrimination under Article 14. Print and broadcast media are not subject to a Fact Check Unit mechanism. Subjecting online speech to a separate truth-arbitration regime without a rational basis violates Article 14.

Chilling effect. Intermediaries will over-comply. Satire, comedy and dissent will be suppressed. The chilling effect is structural and pre-emptive, not contingent on actual prosecution.

Justice Patel (original opinion, 31 January 2024)

Justice Patel's opinion — originally one half of the split, now the majority following Chandurkar J.'s concurrence — held that the Rule is unconstitutionally vague, violates Articles 14, 19(1)(a) and 19(1)(g), and that the chilling effect on free speech "is not theoretical". The Government's interest in countering misinformation, Patel J. held, cannot be served by appointing itself as truth-arbiter. Rule 3(1)(b)(v) was struck down in its entirety.

Justice Gokhale (dissent, 31 January 2024)

Dr Justice Gokhale's dissent treated the Rule as a narrow mechanism with adequate procedural safeguards and held that intermediaries retained sufficient remedy through judicial review. Her opinion did not survive the tie-breaking process but is on record.

Final operative judgment (26 September 2024)

Rule 3(1)(b)(v), as inserted by the 2023 Amendment, was struck down. The 20 March 2024 PIB-FCU notification was consequently void. The judgment is reported as 2024 SCC OnLine Bom 2853.

The doctrinal architecture

The decision rests on three doctrinal moves.

First, vagueness as a free-standing constitutional vice. Shreya Singhal held that vagueness in a criminal speech offence is independently fatal under Article 19(1)(a). Kunal Kamra extends the doctrine to administrative content-regulation: a Rule whose operative criteria lack ascertainable standards is unconstitutional even where the immediate consequence is intermediary safe-harbour loss rather than criminal prosecution. The chilling effect is the same.

Second, the structural-conflict-of-interest principle from natural justice transplanted into Article 14. A.K. Kraipak v. Union of India, (1969) 2 SCC 262, established the principle that no person can be a judge in their own cause, even where the proceeding is administrative. Chandurkar J. applies the principle to content moderation: the state cannot be the adjudicator of the truthfulness of speech about itself. The principle does not depend on demonstrated bias in the particular case; the structural arrangement is itself the vice.

Third, proportionality as the constitutional test for administrative content-regulation. The four-fold Puttaswamy proportionality framework — legality, legitimate aim, suitability and necessity, and balancing — has been articulated by Anuradha Bhasin as the test for digital restrictions. Kunal Kamra applies it to the Fact Check Unit and holds that the least-restrictive-means prong is decisive: defamation and false-news remedies already exist, and an executive-branch FCU is not the narrowest available instrument.

The decision sits adjacent to Shreya Singhal on the vagueness and chilling-effect side; to Anuradha Bhasin on the proportionality framework; to Agij Promotion of Nineteenonea Media v. Union of India, 2021 SCC OnLine Bom 2938, on the structural objections to administrative content-regulation; and to K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, on proportionality as the constitutional review standard.

What was not decided

The bench did not decide whether a narrower, less arbitrary fact-check mechanism could survive constitutional scrutiny. Chandurkar J. expressly left open that a properly designed, multi-stakeholder, judicially-supervised mechanism might pass muster — but did not articulate the constitutional parameters. The judgment does not address state-level Fact Check Units — Maharashtra, Karnataka and Tamil Nadu have notified parallel mechanisms which would require independent challenge. The validity of the Grievance Appellate Committee mechanism under the 2022 Amendment was not adjudicated. Liability of intermediaries under Section 79 for refusing genuine court-ordered takedowns remains governed by Shreya Singhal and the Section 69A regime. The interaction between the DPDP Act, 2023 grievance machinery and the IT Rules grievance mechanism was not addressed.

After the judgment

The Union of India filed SLP (C) No. 24779 of 2024 on 10 October 2024. On 17 October 2024 and confirmed in subsequent listings, the Supreme Court — D.Y. Chandrachud, C.J., J.B. Pardiwala, J., and Manoj Misra, J. — issued notice but declined to stay the Bombay High Court ruling. Rule 3(1)(b)(v) remains struck down. The PIB-FCU notification of 20 March 2024 is void. As of 2026, the Ministry has not notified a replacement mechanism.

Kunal Kamra has also moved the Madras High Court against state-level "anti-fake-news" notifications. The Editors Guild of India and the Association of Indian Magazines remain co-petitioners in the Supreme Court appeal. The judgment is now the leading Indian authority on government-as-arbiter content moderation. It is being cited in the pending Delhi High Court consolidated challenge to the IT Rules, 2021 Part III, in the Karnataka High Court Sahyog litigation in X Corp v. Union of India, and in the early DPDP Act, 2023 implementation contestations.

The Broadcasting Services (Regulation) Bill, 2023 — withdrawn in November 2024 for redraft — was partly influenced by Kunal Kamra's reasoning on inter-medium parity. The decision marks the highest-profile online speech ruling in India since Shreya Singhal.

Related on Valkya

• Shreya Singhal v. Union of India: striking down Section 66A
• Anuradha Bhasin v. Union of India: internet as an Article 19 right
• Agij Promotion v. Union of India: the IT Rules 2021 Part III stays
• X Corp v. Union of India: Karnataka HC, Section 69A, and the cost of resistance

Sources

1. SCC OnLine Blog — Bombay HC strikes down Fact Check Unit (analysis, September 2024): https://www.scconline.com/blog/post/2024/09/27/bombay-hc-fact-check-unit-kunal-kamra/
2. LiveLaw — Bombay HC strikes down Fact Check Unit (final judgment coverage): https://www.livelaw.in/top-stories/bombay-high-court-strikes-down-fact-check-unit-it-rules-2023-kunal-kamra-271001
3. BarandBench — Kunal Kamra v. Union of India full judgment coverage: https://www.barandbench.com/news/litigation/bombay-high-court-fact-check-unit-kunal-kamra-it-rules-2023
4. Supreme Court Observer — Kunal Kamra v. Union of India case page: https://www.scobserver.in/cases/kunal-kamra-fact-check-unit-it-rules-2023/
5. Internet Freedom Foundation — Fact Check Unit case tracker: https://internetfreedom.in/fact-check-unit-case-tracker-kunal-kamra/
6. High Court of Bombay — official judgment text W.P.(L) No. 9792 of 2023: https://bombayhighcourt.nic.in/judgments/kunal-kamra-2024