No grave, irreparable loss if FCU is set up under IT Rules, says HC

Mumbai: The Bombay High Court on Monday declined an interim stay on establishing a fact-checking unit (FCU) under amended IT Rules to combat fake content against the government on social media.

Justice A S Chandurkar stated no significant or irreversible harm would result. The bench found no grounds to order the government to uphold its previous commitment to withhold FCU notification amid ongoing petitions challenging the IT Rules.

The order was passed on a bunch of applications filed by standup comedian Kunal Kamra and others seeking a stay on the notification of the FCU pending the final disposal of their pleas against the IT Rules. The court said the balance of convenience tilts in favour of the government as Solicitor General Tushar Mehta has made a categorical submission that political opinions, satire and comedy are aspects not sought to be linked to the business of the Central government.

Notifying the FCU would not result in an irreversible situation as any action taken post the notification would always be subject to the final orders of this court on the validity of the IT Rules, the high court said.

However, the Solicitor General has said the FCU intends only to deal with government business in its strict sense, and it did not aim or attempt to prevent or muzzle political views, satire, sarcasm or political comments, it noted.

The pleas against the IT Rules were referred to Justice Chandurkar after a division bench of Justices Gautam Patel and Neela Gokhale delivered a split verdict in January.

While Justice Patel struck down the impugned Rules, terming them unconstitutional, Justice Gokhale upheld them and dismissed the petitions.

Justice Patel had said the Rules amount to censorship, but Justice Gokhale had opined they do not have any chilling effect on free speech.

The division bench had also differed on whether a stay should be granted on setting up the FCU pending a hearing on the pleas by the third judge.

Justice Patel had said the FCU should not be notified, and Justice Gokhale opined otherwise. Justice Chandurkar on Monday said the interim applications would now be placed before the referral division bench of Justices Patel and Gokhale for orders on the same. With Justice Chandurkar’s opinion, the Centre would get clearance to notify the FCU under the IT Rules.

Last year, the Centre gave an oral assurance to the court that it would not notify the FCU under the IT Rules until the final verdict was delivered on the issue.

However, after the division bench’s split verdict, Solicitor General Tushar Mehta submitted to the court that the oral assurance could be extended only until the third judge took up the matter for consideration.

The petitioners then filed interim applications seeking a stay on notification of the FCU.

On April 6, 2023, the Union government promulgated certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including a provision for an FCU to flag fake, false or misleading online content related to the government.

Under the IT Rules, if the FCU comes across or is informed about any posts that are fake, false, and contain misleading facts about the business of the government, it would flag off the same to social media intermediaries.