THE BOMBAY High Court Wednesday refused to stay the setting up of a Fact Checking Unit (FCU) under the recently amended Information Technology Rules. The central government can notify the unit which empowers the government to identify “fake news” on social media platforms. The division bench of Justice Gautam Patel and Neela Gokhale rejected the applications seeking an interim stay on notifying a FCU, till the court decides on multiple petitions challenging the validity of the amended rules. The petitioners including stand-up comedian Kunal Kamra, Editors Guild of India, News Broadcasters and Digital Association and Association of Indian Magazines, have challenged the rules terming them arbitrary, unconstitutional, and in violation of fundamental rights. The central government had made a statement before the court, when a division bench was deciding on the petitions, that it would not notify the FCU pending hearing on the petitions. A split verdict was delivered by the division bench in January, where while Justice Patel agreed with the petitioners’ contentions and struck down the amendment, Justice Gokhale upheld the government’s side. It was then referred to a third judge. At the time, Solicitor General Tushar Mehta had said that the government will not be able to continue its assurance of not notifying the FCU. The HC had then said that a substantive application for further continuance should be made to the third judge. A single bench of Justice A S Chandurkar on March 11 had said that no case is made out to direct the government to continue its statement made during the earlier proceedings that it would not notify the FCU till the final disposal of the petitions. On Wednesday, the division bench said that with the third judge having rendered his opinion, the interim applications seeking for continuation of the central government's statement are rejected. The dates for the final hearing of the pleas are likely to be fixed on Friday. In April last year, the Ministry of Electronics and Information Technology (MEiTY) promulgated the 2023 Rules, which further amended the Information Technology Rules, 2021. Under the new Rules, if the FCU comes across or is informed about any posts that are “fake”, “false” or contain “misleading” facts pertaining to the business of the government, it would flag it to the social media intermediaries. The online intermediaries would then have to take down such content if they wanted to retain their “safe harbour” (legal immunity against third-party content). In his verdict, Justice Patel noted that the petitioners were “correct in saying that the State cannot coercively classify speech as true or false and compel the non-publication of the latter. That is nothing but censorship.” However, Justice Gokhale had said that alleging bias on the part of FCU members because they were government appointees was “unfair”, and the recourse to courts of law was always open in case of any bias.
