IT Rules Amendment | Prima Facie No Case Made Out For Not Notifying Govt's Fact Check Unit: Bombay High Court Third Judge AS Chandurkar Opines

The judgements were divergent in all aspects, including the question of interim relief. Therefore, the petitioners filed the present interim applications.

The petitioners argued that both Justice GS Patel and Justice Neela Kedar Gokhale agreed that the amended rule, in its current form, violates the freedom of speech. Solicitor General Tushar Mehta argued that there cannot be an interim order which encourages public mischief at the behest of a few individuals.

Arguments –

Advocate Gautam Bhatia for the Association of Indian Magazines outlined the criteria for interim relief – prima facie case, irreparable damage, and balance of convenience. He argued that the division bench agreed that the amended Rule violates and has a chilling effect on free speech; therefore, a prima facie case is made out. Since a safe harbour is fundamental to how speech operates online, he argued that the deprivation of a safe harbour would cause irreparable injury. Once the prima facie case is made out, the government has the burden to show that the balance of convenience lies against the grant of interim relief, Bhatia contended.

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.

Solicitor General Tushar Mehta highlighted challenges posed by social media platforms, such as their unlimited reach, anonymity, and potential for misinformation dissemination. Mehta insisted that once FCU flags something as fake or false, the social media intermediary is not obligated to do anything. If they put a disclaimer on the flagged content that it is fake as per government FCU, their safe harbour under section 79 of the Information Technology Act will continue, he said.

He argued that the amended rule does not impose any obligation to remove content. He further said that safe harbour granted to intermediaries is not unconditional, and pointed out that no intermediary has approached the court against the amendment.

In rejoinder, Seervai highlighted that Justice GS Patel deemed the amendment as a direct violation of Articles 19(1)(a), lacking protection under Article 19(2), and criticized its vague language. Seervai noted that several instances of misinformation, cited by Mehta, were effectively addressed by the Press Information Bureau without the need for an FCU.

Seervai argued against Mehta's assertion of public interest, stating it implies an overreliance on the government for safeguarding public welfare, akin to a "nanny state" mentality. He emphasized the need to reject the notion that only the government can ensure citizen well-being, dismissing it as erroneous.

Advocate Shadan Farasat contended that even if disclaimers are feasible, they still impose a restriction on freedom of speech, albeit less severe than content bans or removals. He argued that such restrictions do not align with the permissible grounds for limitation outlined in Article 19(2).

Advocate Gautam Bhatia asserted that the balance of convenience favors halting the amendment, citing alternative tools like the Press Information Bureau and community notes on platforms like Twitter as effective countermeasures against false information. He further argued that not everything can be neatly categorized as factual or non-factual content, and there are many statements about the government whose nature of being factual or non-factual is in dispute.

In its detailed opinion, the court said, "Though an arguable case as regards validity of Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 is made out especially when the said Rule has been held to be ultra-vires Articles 14 and 19(1)(a) of the Constitution of India as well as going beyond the empowering provision under the parent statute by one learned Judge, the balance of convenience tilts in favour of the non-applicants in view of the categorical submission made by the learned Solicitor General that political opinions, satire and comedy are aspects not sought to be linked to “the business of the Central Government.” 

This situation when pitted against larger public interest leads me to opine that grave and irreparable loss is not shown to result if the FCU is notified warranting the passing of an interim direction of not notifying the FCU till the challenge to Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 is finally decided, it added. 

The court clarified that the opinion is only based on a prima facie consideration of the issues that arise and has been made in the context of the prayers of the interim application and that the interim applications should now be placed before the referral bench for appropriate orders.

Case Title – Kunal Kamra v. Union of India with connected cases

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