Plea against amended IT rules: Court refuses to stay formation of fact-check unit

Granting weightage to Solicitor General of India Tushar Mehta's submission that political opinions, satire and comedy are aspects not sought to be linked to "the business of the Central Government," the third judge of the Bombay High Court hearing the petitions against the Information Technology (IT) rules on Monday refused to grant any further stay on notifying the Fact Check Units (FCU).

Justice AS Chandurkar further added that notifying 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 IT rule amendment 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 warranting the passing of an interim direction of not notifying the FCU till the challenge to Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 is finally decided," stated Justice Chandurkar.

The petitions filed by stand up Comic Kunal Kamra and others challenged the validity of Rule 3(1)(b)(v) of the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (for short, the Rules of 2021) as amended by Rule 3(i)(II)(A) and (C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 (for short, the Amendment Rules of 2023).

The order was passed on a bunch of applications filed by Kamra and others seeking a stay on the notification of the FCU pending final disposal of their pleas against the IT Rules. The pleas against the Rules were referred to Justice Chandurkar after a division bench of Justices Gautam Patel and Neela Gokhale last month gave a split verdict.

While Justice Patel struck down the impugned Rules terming it as unconstitutional, Justice Gokhale upheld the same and dismissed the petitions. Justice Patel had said the Rules amount to censorship but Justice Gokhale had opined the Rules do not have any chilling effect on free speech.

The bench had also differed on whether stay should be granted on setting up of the FCU pending hearing on the pleas by the third judge. Justice Patel had said the FCU ought not to be notified while Justice Gokhale opined otherwise.

Justice Chandurkar on Monday after giving his opinion said the interim applications would now be placed before the referral division bench of Justices Patel and Gokhale for orders on the same.

With Justice Chandurkar's opinion, the Centre would get clearance to notify the FCU under the Rules.

The Centre had last year given an oral assurance to the court that it would not notify the FCU under the Rules until final verdict on the issue. However, after the bench gave a split verdict, Mehta submitted to the court that the oral assurance can be extended only until the third judge takes up the matter for consideration.

The petitioners then filed interim applications seeking a stay on notification of the FCU. On April 6, 2023, the Union government promulgated certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including a provision for a fact-checking unit to flag fake, false or misleading online content related to the government.

Under the Rules, if the FCU comes across or is informed about any posts that are fake, false, and misleading facts pertaining to the business of the government then it would flag off the same to the social media intermediaries.

Once such a post is flagged off, the intermediary has the option of either taking down the post or putting a disclaimer on the same. In taking the second option, the intermediary loses its safe harbour/ immunity and stands liable for legal action.