The Bombay High Court has reserved its judgment in petitions challenging the IT Amendment Rules, 2023, which empowers the central government to establish fact-check units to identify “fake news” about itself on social media and order its take down, Livelaw reported.
The court’s tie-breaker judge, Justice Atul Chandurkar reserved the order in petitions filed by comedian Kunal Kamra, the Editors Guild of India, the Association of Indian Magazines, and the News Broadcast and Digital Association.
A division bench of Justices Gautam Patel and Dr Neela Gokhale had delivered a split verdict on the issue in January – with Patel proposing to strike down the provisions and Gokhale upholding the amendments to the IT Rules.
Background
In March, Justice Chandurkar had refused to stay the notification of the FCU, saying that a “prima-facie” case was not made out. However, in the same month, less than a day after the centre notified the FCU under the amended IT Rules, the Supreme Court stayed its operation.
The bench of Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra then said, “The challenge to the validity of 3(1)(b)(5) involves serious constitutional question and the impact of the rule on free speech and expression would need to be analysed by the high court.”
The top court had also observed that adjudication was pending by the high court. On March 11, the Bombay High Court rejected Kamra and the guild’s case in a 2:1 judgement, with Justices AS Chandurkar and Neela Gokhale supporting the government’s argument in contrast to Justice Gautam Patel.
As quoted by Bar and Bench, Kamra’s counsel Darius Khambata said the fact-check unit has a “chilling effect on free speech”. “No intermediary challenged these rules. Why? Because they will protect their interests. They will happily be chilled. Justice Gokhale also said we had a case to make…It is a question of Caesar judging Caesar.”
Advocate Shadan Farasat, representing the Editors Guild of India, said: “The judges have proceeded on the assumption that the government is a good boy. The critique business of the government is why Article 19(1)(a) exists…How will investigative journalists work at all? It is through several sources in the government. Now a central authority will stamp out all other voices.”
However, solicitor general Tushar Mehta emphasised that “If someone criticises the prime minister. It would not fall under this [fact check unit].”
The amendments have been widely criticised by press groups, opposition leaders and journalists.
Newslaundry has reported on length on the controversies surrounding the amendment and why it’s a blow for press freedom. Read about it here.
To know how the amended IT Rules translate to “greater opacity” in surveillance and impact RTI, read here.
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