Pleas challenging amended IT Rules: Judge refuses to grant stay on setting up fact-check unit

The amended IT Rules empower the government to identify “fake news” on social media platforms through the fact-check unit.

The judge on Monday clarified that “it was only a prima facie consideration of the issue” that arose in context of interim applications seeking a stay on the FCU’s notification.

The division bench comprising two judges had last month also stated in its order that there was a point of difference between them on the question of interim relief as to whether the previous statement by Centre should be continued as an order of the court. The interim applications will now be placed before the referral division bench, which will pass appropriate orders.

On January 31, a division bench of the Bombay High Court had delivered a split verdict on a batch of petitions challenging the amended IT Rules. While Justice Gautam S Patel had agreed with the petitioners’ contentions and struck down the amendment, Justice Neela K Gokhale upheld the government’s side. Thereafter, under the HC Rules, Chief Justice Devendra Kumar Upadhyaya assigned Justice Chandurkar to give opinion as the third judge.
The petitioners in the matter, stand-up comedian Kunal Kamra, Editors Guild of India, News Broadcasters and Digital Association Association of Indian Magazines, had filed an interim application seeking stay on the effect of the FCU and that it will not be formed till the third judge passes his tie-breaking opinion on merits.

Solicitor General Tushar Mehta had opposed the applications stating that the provision is in public interest and continuation of statement would “deprive people at large from knowing the truth”.

When Justice Chandurkar had referred to applicants’ argument that no instance of adverse impact of non-notification of FCU since April last year being shown by the Centre, Mehta argued that nothing has come to the Centre as there was no FCU and if it was in place, centre would have shown the data of fake, false and misleading content.

Justice Chandurkar, in his order noted that one of the judges on the division bench had observed that the Rule providing FCU was constitutionally valid. Therefore, he held, the “balance of convenience tilts in favour of non-applicant (Centre)”, particularly in view of SG Mehta’s statement that political opinions, satire and comedy are aspects not sought to be linked to “the business of the Central Government”.

“Notifying the FCU would not result in an irreversible situation for the reason that any action taken post notifying the FCU would always be subject to the validity of Rule 3(1)(b)(v) which is under challenge. This situation when pitted against larger public interest leads me to opine that grave and irreparable loss is not shown to result if the FCU is notified… till the challenge to Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 is finally decided,” Justice Chandurkar held.