Division Bench Agreed That 2023 Amendment To IT Rules As It Stands Violates Free Speech: Petitioner To Bombay High Court

The 2023 amendment to the IT Rules, 2021 empowers the government to establish a fact checking unit (FCU) to identify fake, false, and misleading information about its business on social media.

Advocate Gautam Bhatia for the association contended that a prima facie case was made out against the amendment, deprivation of safe harbour would cause irreparable injury to the petitioners, and the central government has to show that balance of convenience lies against stay on notification of FCU.

“Justice Gokhale says the reason why that there is no chilling effect is that when you read in 'knowledge' and 'intent' required in the Rules, that saves the Rules from being violative of free speech and the chilling effect. So both judges agree that as the Rule stands it violates and has a chilling effect. Justice Patel believes you cannot save the Rules by reading in, Justice Gokhale believes you can save the Rule by reading in”, Bhatia argued.

Justice AS Chandurkar was hearing interim applications filed by the petitioners seeking to prevent the central government from notifying an FCU till the pendency of their writ petitions challenging the amendment.

Chief Justice DK Upadhyaya assigned the matter to Justice Chandurkar after the division bench of Justice Gautam Patel and Justice Neela Gokhale delivered a split verdict on January 31, 2024. While Justice Patel held the Rule should be struck down in its entirety, Justice Gokhale held the Rule was intra vires. The judgements were divergent on all aspects.

Advocate Bhatia outlined the criteria for interim relief – prima facie case, irreparable damage, and balance of convenience. Since safe harbour is fundamental to the way speech operates online, the deprivation of safe harbour would cause irreparable injury, he argued. Once prima facie case is made out, the government has the burden to show that balance of convenience lies against grant of interim relief, Bhatia contended. "Most recently in the Electoral Bonds judgement the SC said that when you apply proportionality...the burden shifts to the State to show the existing mechanisms are insufficient", he added.

Senior Advocate Navroz Seervai for petitioner Kunal Kamra emphasized the Centre's previous commitment not to notify the FCU until a judgment was reached in the challenge to the IT Rules. He noted that this statement had been reiterated on 11 occasions. Seervai contended that the split verdict by the division bench only represented an opinion and not a judgment, implying that the Union of India was obligated to maintain its stance until a final decision was made.

Seervai pointed out the stark divergence between the opinions of the two judges on the constitutionality of the amendment to the IT Rules. He argued that failing to grant interim relief would render the petition ineffective and deny the petitioner fair recourse.

Seervai said that the FCU, ostensibly aimed at intermediaries, would inevitably impact users, constituting a direct assault on their rights. He contended that the government's role should be to present its viewpoint in the marketplace of ideas rather than acting as an arbiter of online content.

Seervai argued that the language used in the amendment is ambiguous, particularly the terms “fake, false, and misleading” and “business of the government”.

Calling the government's approach 'alarmist', Seervai reiterated that there is already a government organization (PIB) that flags information about the government's business which it believes to be fake, false or misleading. “Not one case has been pointed out by the Union since the split judgement, that the absence of the FCU has caused any prejudice to it. This makes out a strong case for why interim relief should be granted”, Seervai added.

Justice Chandurkar asked whether his pronouncement on the interim application will be considered an opinion or an order, as this is only a reference by the division bench and he is sitting in a single bench. Notably, the two judges of the division bench disagreed even on the question of interim relief. He further asked about an unwritten practice that when there is difference of opinion between judges, interim relief is granted. Seervai responded that he will check case laws on these questions.

The court adjourned the hearing to 2:30 PM tomorrow for arguments from the Union Government.

Case Title – Kunal Kamra v. Union of India

(Compiled By Amisha Shrivastava)

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