Third judge reserves verdict on pleas challenging amended IT Rules

On January 31, a division bench of the Bombay High Court comprising two judges 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.

Thereafter, 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.

On March 11, Justice Chandurkar had refused to grant a stay on a notification to set up a fact-check unit till he gave his final opinion on the pleas’ merits.

Justice Chandurkar had 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.

According to the IT rules amended in April, last year, 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).

Solicitor General Tushar Mehta, appearing for the Centre, argued that while the FCU can only identify the content related to government business as fake, false or misleading, but cannot remove it and the intermediary will take a call on the same.

He added that the right to know and right to not be misled should be balanced with the right to freedom of speech and expression. He had also claimed that there would be no chilling effect on free speech as the government will not be the final arbiter as the intermediary has to take a call and final decision will lie with the court.

Mehta also said the amended rules were essential in view of risks posed through means such as deepfake videos and if fact checking system is not in place, it would have potential for individuals based abroad to incite violence in the country.

The petitioners, in a rejoinder submitted that false and incorrect speech can be dealt with without taking unnecessary action against the flagged content.

They submitted that it did not matter that the court would be the final arbiter, as the government could pre-emptively declare the content to be true or false. The petitioners also added that the intermediaries will have to take the content down to “avoid commercially harmful” litigations and the government could not deprive them of safe harbour protection.

Justice Chandurkar will deliver his judgement in due course.