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

In a setback for the petitioners in the 2023 IT Rules Amendment Case, the third judge—Justice AS Chandurkar—opined that prima facie, no case was made out to direct the Union government to continue its statement and not notify the Fact Check Unit.Justice Chandurkar ruled that the balance of convenience favours the Union, considering the government's submission about not using the FCU to censor political opinions, satire, and comedy. Additionally, any action taken after notifying the FCU would be subject to the final outcome of the petition and wouldn't cause irreversible damage."In my opinion, no case has been made out to direct that the statement made on behalf of the non-applicants that the fact check unit should not be notified should be continued during present proceedings as an order of the court."The court, however, referred the matter back to the division bench of Justices Gautam Patel and Neela Gokhale for pronouncement of orders on the interim applications filed by petitioners Kunal Kamra and others. They sought to restrain the government from notifying the FCU till Justice Chandurkar's final opinion on the challenge to the 2023 amendment to the IT Rules 2021. According to the Rules, the government should establish an FCU to identify fake, false, and misleading information about its business on social media.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 that the Rule should be struck down in its entirety, Justice Gokhale held that it was intra vires.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...

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

Sharmeen Hakim

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