Kunal Kamra’s plea against IT Rules: Fact Check Unit for online content won’t be notified till July 5, Centre tells Bombay HC

Observing that the central government had filed a “limited affidavit earlier,” the court asked the Centre to file a detailed affidavit in reply to the plea by comedian Kunal Kamra who has challenged the amendment Rules that empowers the government to identify “fake news” about itself on social media platforms.

Senior advocate Darius Khambata, representing Kamra, submitted that FCU will have a chilling effect on the citizens and their right to freedom of speech and expression. The court will hear the plea next on June 8.

The HC, on April 24, had observed that amendment to the Rules, which includes a provision for setting up FCU, does not seem to offer protection to fair criticism of the government through parody or satire.

On Thursday, when the matter came up for hearing, Additional Solicitor General (ASG) Singh on the instructions from the officials submitted that he was willing to make a statement that the FCU will not be notified until further date of hearing and sought the matter to be adjourned till then.

However, Khambata opposed the adjournment and raised apprehension that once the notification comes out, it will apply to the content in a retrospective manner.

“If he (ASG Singh) is being so fair to say that the fact checking unit won’t be notified till July he should also say it will apply prospectively,” Khambata argued.

The court however did not find it a reason to immediately hear the plea for stay or suspension of amended Rules. “The rule will not be operable for the fact-check unit till it is notified. Even if matter is heard for ad-interim, it will require full hearing, covering all ground and that is likely to be heard for final disposal. We do not see why the same material has to be heard twice when it can be disposed of at the stage of admission (of matter),” it noted in the order.

“Whether we uphold it or not later, until then they cannot do anything. That application in retrospective manner is an argument which can be made after notification. There is a proposal or draft which is yet to be brought in operation. Right now it is inoperable or sterile,” Justice Patel orally observed.

According to the IT Rules amended earlier this month, content marked by the FCU as “fake or misleading” will have to be taken down by online intermediaries if they wish to retain their “safe harbour” (legal immunity against third-party content).

Kamra had challenged Rule 3(1)(II)(A) and (C) of the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, stating that this would, in effect, amend Rules 3(1)(a) and 3(1)(b)(v) of the IT Rules, 2021, violating several past Supreme Court judgments.

The MEiTY, in its earlier affidavit, had stated that the FCU may only direct the removal of such information pertaining to government policies and programmes, not satire or artist impression and had called the plea “premature” with a notification for FCU yet to be notified.