Amended IT Rules: Bombay HC refuses to stay formation of FCUs till third judge decides petitions

Amendment was done just to muzzle criticism & questioning of central govt & to stifle dissent from what it puts out in regard to affairs of state, petitioners had contended.

APOORVA MANDHANI, The Print, 11 March, 2024, New Delhi: The Bombay High Court Monday refused to stay the formation of the Fact-Check Unit (FCU) by the government, introduced through the 2023 amendment to the Information Technology Rules, till the third judge gives his final opinion on the Constitutional validity of the amended Rule.

Justice A.S. Chandurkar gave the order while hearing an application filed by comedian Kunal Kamra, Editors Guild of India, News Broadcasters and Digital Association, and Association of Indian Magazines.

On 31 January, the Bombay High Court delivered a split verdict on petitions challenging a 2023 amendment to a rule under the Information Technology Act. This rule empowers the government to form a Fact-Check Unit (FCU) for identifying false, fake or misleading online content “related to the business of the Central Government”.

While Justice G.S. Patel felt that the rule amounts to censorship, Justice Neela Gokhale opined that it does not prohibit critical opinion or a satire or parody — how-so-ever critical of the Government or its business — as long as it is not false or misleading.

In February, the high court chief justice had assigned Justice Chandurkar to hear petitions, following which the petitioners filed an interim application seeking stay on formation of the FCU. The judge had then reserved order on the interim application on 29 February.

The petitions have challenged the amended Rule 3(1)(b)(v) of the Information Technology Rules, 2021. Rule 3 lays down the due diligence requirements for intermediaries to follow while discharging its duties. Rule 3(1)(b)(v) requires the intermediary to make reasonable efforts so that its users don’t display or upload or transmit any information that has been identified as fake or false or misleading by such FCU set up by the Central Government.

Failure by intermediaries to take down content flagged by the FCU could result in losing their safe harbour protections under the IT Act, which provides protection against liability for content posted on their websites by third parties.

Before the court, the petitioners have contended that the amendment had just one purpose — to muzzle criticism and questioning of the central government, and to stifle dissent from what it puts out in regard to affairs of the state. They had also asserted that the central government had anointed itself as the sole arbiter of what is or what is not ‘fake, false or misleading’.

The petitioners also contended that the amendment was overbroad, vague and without controlling guidelines, saying that it does not even provide an opportunity for the propounder of any information to defend its correctness, and that the government becomes a judge in its own cause.

In the split verdict, Justice Patel felt that the 2023 amendment “is not just too close to, but actually takes the form of, censorship of user content”.  However, he clarified that this is not a comment on any dispensation or the present government. On the other hand, Justice Gokhale felt that the “requirement of a nuanced regulation underscores the cost of free speech absolutism in this infodemic era”.