On 13th March, the Bombay High Court allowed the Government of India to notify the Fact Check Unit (FCU). The court rejected the application filed by self-proclaimed stand-up comedian Kunal Kamra and others challenging the constitutionality of the FCU under Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023. Notably, the division bench comprising Justice GS Patel and Justice Neela Gokhale delivered a split verdict on the petition. A Single Judge Bench comprising Justice AS Chandurkar opined Kamra’s plea did not make a case for interim relief.
Kunal Kamra, the Editors Guild, the News Broadcast Digital Association, and the Association of Indian Magazine filed the plea seeking directions for when the judgment of the third judge is pronounced. The third judge hearing the matter, Justice AS Chandukar, stated Kamra’s plea did not make a case for the court to pass an order to the Central Government not to notify the FCU.
#BombayHighCourt refused to grant interim stay on Fact Check Units formation under the Information Technology Amendment Rules, 2023.
— Bar & Bench (@barandbench) March 13, 2024
Tiebreaker judge had given his opinion on March 11 on Kunal Kamra's plea.
Division bench pronounced the majority view today.@kunalkamra88 pic.twitter.com/CDzMvXVCiB
The government of India had amended the Act and added rule 3(1)(b)(v) of the IT Rules amendment 2023 that empowered the government to establish FCU. The unit aims to verify the genuineness of the content published about the government’s work on social media platforms. If false, fake, or misleading information is published, the amendment gives the government power to remove it from social media platforms. If the FCU passes an order to remove the content, the social media intermediary must either remove it or defend its stand to allow it in court.
The reconstituted bench of Justice Patel and Justice Gokhale pronounced the interim order after Justice Chandurkar opined that the petitions made no case for interim relief. The court said, “The third judge has rendered his opinion. Consequently, the majority view is that the interim applications for stay and continuation of the previous statement (by the Union not to notify the FCU) are rejected.”
The opinion of the third judge on the interim relief would be placed before the earlier division bench to pass appropriate orders in the matter. As the Bombay High Court has rejected the application for stay, the Central Government can go ahead with the notification of the FCU under the amended IT Rules that give the power to these units to identify and order to take down false, fake and misleading news on social media.
Earlier, Justice Patel had struck down the amendment rule. Still, Justice Gokhale ruled against the petitioners, including Kamra, the Editors Guild, the News Broadcast Digital Association and the Association of Indian Magazines. In their petition, they challenged the constitutionality of the FCU.
Senior Advocate Navroz Seervai appeared for Kunal Kamra and other petitioners. He argued that the Government of India had stated that FCU would only be notified once the final judgment came out, which would be possible after the third judge gave his opinion on the earlier verdict of the two-judge bench. He stated that as it was a split judgment, it established the ground for considering the importance of the current status quo.
Solicitor General Tushar Mehta appeared for the Ministry of Information and Technology. He opposed the interim stay and argued that the court was dealing with a medium not restricted by geographical limitations. He stated that India and the entire world need help with fake news. Furthermore, he added that India was trying to tackle the problem with a minimalistic approach.
