Bombay high court refuses to stay setting up of Fact Check Unit

MUMBAI: The Bombay high court on Monday rejected an interim plea by comedian Kunal Kamra that sought a stay on the setting up of Fact Check Units (FCUs) until the court rules on the legality of a new rule empowering the government to identify false online content.

Justice AS Chandurkar, who was assigned to hear the case as the third judge after a two-judge bench delivered a split verdict on January 31, declined to restrain the central government till he delivered his ruling on the case.

Senior advocate Navroz Seervai, appearing for Kunal Kamra, had argued for postponing the FCU’s notification until the final verdict, saying it was customary to maintain the status quo when judges disagree.

Seervaistressed that the final judgment, which would be determined by the third judge’s opinion, would reveal the majority stance due to the split verdict. Seervai underscored the importance of the current status quo, given the starkly differing opinions of two judges on the rule’s constitutionality and legality.

Solicitor general Tushar Mehta, representing the Union government, opposed the plea, insisting that the FCU was a minimalist approach to address the problem. Mehta also rebutted Kamra’s contention that the FCUs will have a chilling effect on freedom of expression, saying aggrieved parties could always seek legal recourse without facing immediate punishment. He said the provision of the Information Technology Amendment Rules, 2023 to create the unit was in the public interest to counter fake news and expressed concerns about potentially depriving the public of the truth, especially when intermediaries are not involved.

Chief justice Devendra Kumar Upadhyaya referred the petitions on FCU to justice Chandurkar after a bench of justices Gautam S Patel and Neela K Gokhale delivered a split verdict on a bunch of petitions against FCU including one by stand-up comedian Kunal Kamra. The petition challenged constitutional validity of amendments that, among others, mandate intermediaries such as social media platforms -- not to publish, share, or host fake, false, or misleading information concerning any central government business, as notified by a government fact-checking unit to be set up under the amendment.

The amendment also stated that the failure to comply would result in intermediaries losing “the safe harbour” protection available to them under provisions of the Information Technology Act. Kamra and others argued the amendment to the IT Rules violated their freedom of speech and expression.