Author: Parnika N Abhilash, Asian Law College
Abstract
India is among the nations most impacted by the spread of fake news, which has grown to be a major sociopolitical problem in the digital age. Social media, smartphone use, and internet penetration have all transformed communication, but they have also facilitated the rapid dissemination of false information. Because of its large population, linguistic diversity, political polarization, and wide range of literacy levels, fake news has especially negative effects in India. This abstract explores the origins, forms, methods of propagation, and socio-political repercussions of fake news, which is becoming an increasingly serious problem in India.
Additionally, it identifies gaps and suggests long-term fixes while critically evaluating the responses from the government, media, civil society, and tech companies. In India, fake news has emerged as a major threat to democratic institutions, social harmony, public health, and law and order. While misinformation is not new, its velocity and volume have multiplied with the advent of digital media. Fake news in India spans a wide spectrum, ranging from politically motivated propaganda and communal rumors to misleading health advice and manipulated media content. The unique socio-cultural fabric of India, characterized by high levels of trust in forwarded content, language barriers, and emotional storytelling, has made the population more vulnerable to misinformation. Fake news has become a serious threat to India’s democratic institutions, social cohesion, public health, and law and order. Disinformation is not new, but its pace and volume have increased since the advent of digital media. In India, fake news can take many different forms, from manipulated media content and politically driven propaganda to false health advice and intercommunal rumors. Language barriers, emotional storytelling, and high levels of trust in forwarded content are all features of India’s distinct sociocultural fabric that have increased the population’s susceptibility to false information.
Use of Legal Jargon
The term “fake news” itself, although widely used in public discourse, lacks a precise definition in statutory law, leading to interpretational ambiguity. From a legal standpoint, fake news may encompass any content—textual, audiovisual, or pictorial—that is intentionally or recklessly false and capable of causing public mischief, inciting violence, or misleading the citizenry. The dissemination of such content raises significant concerns under constitutional law, torts, criminal law, and cyber law.
Constitutional Dimensions
The issue of fake news must be evaluated primarily through the lens of Article 19(1)(a) of the Constitution of India, which guarantees the fundamental right to freedom of speech and expression. However, this right is not absolute and is subject to reasonable restrictions under Article 19(2), in the interest of sovereignty and integrity of India, security of the State, public law, ethics, or decency, or in relation to slander, contempt of court, or incitement to commit a crime.
Fake news, particularly when it incites communal tensions, undermines democratic processes, or spreads public panic (as seen during the COVID-19 pandemic), can be validly restricted under the “public order” and “incitement to an offence” clauses. The challenge lies in ensuring that such restrictions are proportional, non-arbitrary, and do not constitute prior restraint, which has been frowned upon by Indian jurisprudence.
Statutory Framework
India does not currently have a comprehensive statute exclusively dealing with fake news. However, several general laws are invoked to tackle its manifestations:
1. Indian Penal Code, 1860 (IPC)
Section 153A: Punishes promotion of enmity between different groups on grounds of religion, race, etc., which can be invoked when fake news is communally inflammatory.
Section 295A: focuses on intentional and malevolent actions meant to incite religious sentiment.
Section 505: Penalizes the publication of statements conducing to public mischief, which is directly relevant for fake news leading to panic or unrest.
Section 499-500: Deal with criminal defamation, applicable when fake news targets the reputation of individuals or entities.
These provisions provide penal sanctions, but their application is often subject to subjective interpretation, leading to concerns about misuse and over criminalization.
2. Information Technology Act, 2000 (IT Act)
Section 66D: Addresses cheating by personation using computer resources, often invoked in cases involving impersonation in fake news.
Section 69A: Empowers the central government to block public access to information for reasons including security and public order. While effective in certain instances (e.g., banning Chinese apps), its opaque implementation raises due process concerns.
Intermediary Guidelines and Digital Media Ethics Code Rules, 2021: These rules impose a due diligence obligation on intermediaries like WhatsApp, Facebook, and Twitter to prevent the hosting of unlawful content, including fake news.
However, the IT Rules have attracted criticism for potentially infringing on freedom of press and for establishing executive control over digital content moderation, without adequate judicial oversight.
Jurisprudential Trends
The “public trust doctrine” has been underlined by the Indian judiciary on numerous occasions while discussing information dissemination. Courts have held that misleading or false information, particularly when it affects public health or communal harmony, can be regulated in a constitutionally permissible manner.
In Re: Distribution of Essential Supplies and Services During Pandemic (2021), the Supreme Court observed that the media must be cautious in reporting, and governments should not use the pandemic to curtail press freedom under the pretext of fake news regulation. This reflects judicial recognition of the balancing act between speech and state interest.
Regulatory and Quasi-Judicial Mechanisms
Apart from statutory measures, India has seen the emergence of self-regulatory and quasi-legal mechanisms:
Press Council of India (PCI): A legally mandated organization with the authority to decide press-related complaints. However, its jurisdiction does not extend to digital media.
News Broadcasters & Digital Association (NBDA) and Digital News Publishers Association (DNPA): Industry-led bodies promoting ethical journalism, but they lack enforceability.
Fact-checking units such as PIB Fact Check are criticized for lacking independence and for operating without a clear legal mandate.
Legal Challenges
Legal challenges in regulating fake news include overregulation, lack of uniform definition, jurisdictional complexity, and due process violations. Overregulation can lead to censorship, while a lack of a statutory definition creates a jurisprudential vacuum. Cybercrimes frequently occur across borders, making it more difficult for investigators and prosecutors to conduct effective investigations. Section 69A blocking orders frequently lack transparency, which goes against the fundamentals of natural justice.
The Loopholes in the current parliamentary legal regime dealing with fake news in India are:-
I. Absence of a Statutory Definition
One of the most glaring loopholes in India’s fake news framework is the absence of a statutory definition of “fake news.”
No definition in the IT Act (2000): Neither the Information Technology Act, 2000, nor its amendments clearly define “fake news.”
IPC references are indirect: Provisions such as Sections 153A, 295A, or 505 of the Indian Penal Code refer to false or inflammatory speech but do not mention “fake news” as a separate offence.
This legal vacuum leads to subjective interpretation, undermining legal certainty and creating arbitrary enforcement standards, which are antithetical to the rule of law and due process under Article 14 of the Constitution.
II. Overreliance on Delegated Legislation
The government has increasingly relied on delegated legislation, especially under the Information Technology Rules, to regulate fake news. Notably:
IT Rules, 2021 and 2023 Amendments: These rules empower the government—via the Press Information Bureau (PIB)’s Fact-Check Unit (FCU)—to determine whether content relating to the business of the government is “fake, false, or misleading.”
Loophole:
These rules were not enacted through Parliamentary debate or legislative scrutiny.
Critics argue they violate Section 87(3) of the IT Act, which mandates all rules made under the Act be laid before Parliament.
This raises concerns under Article 13(3)(a) regarding the validity of subordinate legislation that infringes upon fundamental rights.
The lack of Parliamentary oversight in such critical regulatory decisions results in a concentration of power in the executive, raising constitutional concerns about separation of powers.
III. Vague and Overbroad Provisions
Many existing laws are broadly worded, making them susceptible to misuse:
In the interest of public order or national security, the government may restrict public access to information under Section 69A of the IT Act.. While upheld in Shreya Singhal v. Union of India (2015), the judgment emphasized the need for procedural safeguards and transparency, which are often lacking.
Loophole:
Blocking orders are frequently secretive and issued without judicial review, violating audi alteram partem (right to be heard).
IT Rules 2021, as amended, compel intermediaries to remove flagged content without a clear standard of falsity or malicious intent, inviting accusations of executive censorship and infringing Article 19(1)(a).
IV. Ambiguity in Intermediary Liability (Safe Harbour)
Section 79 of the IT Act provides safe harbour to intermediaries (e.g., Facebook, Twitter) for third-party content, provided they act on takedown requests.
Loopholes:
Safe harbour protection can be revoked if intermediaries fail to comply with the IT Rules or governmental directions—but these directives often lack judicial authorization.
The legal obligation of due diligence is undefined and inconsistent, creating legal uncertainty for platforms and over-censorship tendencies (“better safe than sorry” approach).
This leads to privatized censorship, where platforms become adjudicators of legality without legal training or impartiality.
V. Criminal Law Misapplication
Criminal law is often used to address fake news through IPC provisions:
Section 153A, 295A, 505: These provisions criminalize speech promoting enmity or public disorder.
Section 499/500: Concern defamation and reputational harm.
Loopholes:
These are general provisions not tailored to handle the unique nature of fake news, especially digital virality.
Provisions like Section 505(1)(b) (statements causing fear/alarm) are vague, opening the door to misuse against journalists, activists, or political dissenters.
No mens rea requirement: Several provisions do not require proof of intent to deceive, which should be a cornerstone in prosecuting misinformation.
This has a chilling effect on legitimate speech and investigative journalism, contrary to constitutional jurisprudence on free expression.
VI. Lack of Independent Fact-Checking Oversight
The PIB Fact-Check Unit, empowered under the IT Rules (2023), has drawn judicial scrutiny for its lack of independence and transparency.
Loophole:
The FCU functions under the Ministry of Information & Broadcasting, leading to conflict of interest.
No independent appellate body or judicial review mechanism is built into the process.
This violates principles of natural justice and has been flagged by the Bombay High Court in Kunal Kamra v. Union of India (2024), where multiple judges raised questions about executive overreach and the absence of Parliamentary mandate.
VII. Ineffective Penalties and Procedural Delays
In the few instances where fake news dissemination is prosecuted:
Investigations are delayed.
Prosecution often fails to secure convictions due to lack of digital forensics infrastructure, poor evidence preservation, and absence of specific penal provisions.
Loophole:
No fast-track mechanism exists for fake news cases.
Platforms are not required by law to store data for an adequate amount of time to conduct an inquiry.
This operational inefficiency reduces the deterrent effect of the legal system.
VIII. Fragmentation of Legal Framework
Fake news is governed by a patchwork of laws: IT Act, IPC, Press Council Act, the Disaster Management Act (used during COVID), and media-specific codes.
Loophole:
No comprehensive legislative framework consolidates these laws into a coherent policy against misinformation.
Fragmentation results in confusion, overlap, and jurisdictional conflicts, especially between Centre and States, undermining enforcement consistency.
Recommendations:
Fake news in India threatens public discourse, democracy, and national security. Lack of a comprehensive parliamentary statute creates regulatory vacuum. A clear legal framework is needed to define fake news, establish regulatory bodies, and promote digital literacy.
Case Laws
1. Shreya Singhal v. Union of India (2015) – Landmark Judgment
Citation: AIR 2015 SC 1523
Issue: Constitutionality of Section 66A of the IT Act, 2000
Facts: Two girls were arrested for posting and liking a Facebook post criticizing a shutdown after a political leader’s death.
Ruling: The Supreme Court struck down Section 66A of the IT Act as unconstitutional for being vague, arbitrary, and violating Article 19(1)(a).
Relevance to Fake News:
Prevents misuse of broad laws to suppress speech, even if allegedly false.
Established the “clear and present danger” test for speech-related restrictions.
2. Kunal Kamra v. Union of India (2024) – Ongoing Legal Challenge
Court: Bombay High Court (split verdict; third judge pending)
Issue: Challenge to the 2023 amendment to the IT Rules authorizing the Fact Check Unit (FCU) under the PIB to determine fake news about the government.
Rulings:
Justice Patel: Held the rules to be unconstitutional, arbitrary, and against free speech.
Justice Gokhale: Upheld the rules, stating they fall within the government’s regulatory powers.
Justice Chandurkar (2024): Delivered a third opinion, striking down the rules for violating delegated legislative norms and lacking parliamentary approval.
Relevance:
Central to how India legally handles executive-controlled fact-checking.
Sets precedent on delegated legislation, press freedom, and digital censorship.
3. Pravasi Bhalai Sangathan v. Union of India (2014)
Citation: (2014) 11 SCC 477
Issue: Hate speech and its regulation in digital media.
Ruling: The Supreme Court held that existing penal provisions under IPC, CrPC, and other laws are sufficient to deal with hate speech and incitement.
Relevance: Though not directly about fake news, it touches on incendiary false speech, often the most harmful form of misinformation.
4. Tehseen S. Poonawalla v. Union of India (2018)
Citation: (2018) 9 SCC 501
Issue: Fake news-fueled mob lynching incidents.
Facts: A series of lynchings based on WhatsApp rumors led to PILs.
Ruling: The Supreme Court directed the Centre and States to combat the spread of fake news via social media and imposed obligations on platforms.
Relevance: Established state accountability and policy direction in containing digital misinformation with violent consequences.
Conclusion
In India, fake news seriously jeopardizes national security, democracy, and public discourse.
The lack of a comprehensive parliamentary statute to combat fake news creates a regulatory vacuum. The judiciary has a role in balancing misinformation with fundamental rights, but reliance on executive rule-making and vague laws has led to misuse. A clear legal framework is needed to define fake news, establish independent regulatory bodies, and promote digital literacy. This framework should uphold democratic values and protect the public from fake news harms.
FAQS
Q1. Where is fake news most commonly found?
Fake news spreads primarily through:
Social media (WhatsApp, Facebook, Twitter, YouTube)
Unverified news portals
Political speeches and propaganda
Forwarded messages during elections or crises (e.g., COVID-19)
Q2. Does India have any laws specifically prohibiting fake news?
No single law exclusively addresses fake news. It is dealt with under various provisions like:
Indian Penal Code (IPC) – Sections 153A, 295A, 505
Information Technology Act, 2000 – Section 66D, 69A, IT Rules 2021/2023
During the COVID-19 epidemic, the Disaster Management Act of 2005 was utilized.
Q3. How do social media sites contribute to the fight against false information?
Platforms are intermediaries and are protected under Section 79 of the IT Act, provided they act promptly to remove unlawful content when notified.
They are also bound by the IT Rules, 2021/2023, which require:
Appointing grievance officers
Taking down false or harmful content
Acting on complaints within 72 hours
