IT Rules Amendment: Bombay High Court Asks Centre To Consider Not Notifying Fact Check Unit Until Third Judge's Decision

The Bombay High Court indicatively urged the Union government of India to continue its statement against notifying its proposed Fact Check Unit until the challenge to the 2023 amendment to the IT Rules is decided by a third judge and the judgement is pronounced.

Justice Gautam Patel, heading the division bench said that out of courtesy to the third judge the FCU shouldn't be notified.

“I am telling everyone here willing to listen that if I had the misfortune ever to be the 3rd reference judge, I would seriously be upset by the lack of courtesy in not giving me enough time to come fully to grips with a matter that has occupied this much time of a division bench. I am saying this only advisedly.”

The judge highlighted that judges are under immense pressure. “Our judges are under the most intolerable pressure and there is a reason why the Chief Justice has not been able to identify readily, a judge that is available (to hear the matter)."

On January 31, the bench delivered a split verdict in a clutch of petitions against the amendment to the IT Rules empowering the government to establish an FCU and identity false, fake and misleading information about its business on social media platforms.

While Justice Patel held the Rule should be struck down in its entirety, Justice Gokhale held the Rule was intra vires. The judgement was divergent on all aspects.

At the time of pronouncement, the question arose whether the Union would continue its undertaking initially made to the court about not notifying the FCU. The court asked for this question to be decided by the third judge who would be notified by the CJ to hear the matter. In the mean time, Solicitor General Tushar Mehta undertook not to notify the FCU till February 10, 2024.

The petitioners then approached the CJ yesterday who assigned Justice Patel's bench the task of deciding whether or not the FCU should be notified in the interim.

Senior Advocate Navroz Seervai contended that the SG's statement would have to continue till the matter is decided by the reference judge and a judgement is finally pronounced. He cited judgments to show that in case of split between two judges, their decisions are considered only 'opinions.' It is only after the third judge gives its opinion that the 'judgement' can be pronounced.

He argued that the Solicitor General's statement that the Union would not notify the Rules until the 'judgement' would automatically imply that the Rules would not be notified until the matter was finally decided.

Solicitor General Tushar Mehta vehemently disagreed. He said the Rules may not be notified till the third judge is assigned the case but not beyond. He added that he willingly made the statement not to notify the Rules only till the judgement of the division bench.

Accordingly, Justice Patel recorded the submissions of both sides, allowed the Union to place their reply on record, and kept the matter for hearing on Thursday at 2.30pm. The bench recorded that it “incorrectly” observed earlier that the third judge could decide the issue.

Meanwhile, Senior Advocate Darius Khambata, also appearing for Kamra, requested the SG to continue the statement.

“May I appeal to Mr. Mehta, he had the wisdom and candour to make the original statement (not to notify the FCU) because he realises it's a complex issue...I only ask Mr. Mehta to reconsider if he wants to continue the statement.”

In response the SG said, “No I would not wish to because that doesn't help the petitioner but harms the nation.”

Irked by the response, Senior Advocate Khambata, a former Additional Solicitor General and Advocate General responded, “I would rather not say that. Mr Mehta I would never make a suggestion that harms my country, I love my country, and that's not the way I make submissions.”

The SG clarified that his statement 'not to notify the FCU' would harm the nation and therefore he would not make it. “That's all I said, I didn't mean any disrespect to you.”

Justice Patel then said it would be discourteous not to accord the third judge the benefit of time to hear such a complex matter.