Third Bombay HC to decide on stay on fact checking unit formation to flag fake news against govt

Bombay High Court/ File Photo

The Bombay High Court on Thursday announced a third judge will be deciding whether to uphold the stay on the formation of Fact Checking Unit (FCU) under the recently amended Information Technology Rules, which is intended to identify fake or false content on social media pertaining to the Union government.

Solicitor General Tushar Mehta, per the PTI report, confirmed the government's assurance to not notify the FCU would stand until the case is considered by a third judge for temporary relief.

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According to the report, earlier, on January 31, a division bench of Justices Gautam Patel and Neela Gokhale issued a split decision on petitions challenging the Information Technology Rules. While Justice Patel viewed the Rules as censorship, Justice Gokhale disagreed, claiming that they do not limit free speech. The court decided to refer the matter to a third judge for further consideration.

SG Mehta, after the Jan 31 split verdict, had said that the centre would not notify FCU for 10 additional days. The petitioners, including stand-up comedian Kunal Kamra and Editors Guild of India and the Association of Indian Magazine, then moved HC seeking a stay on its notification till the third judge pronounces their order.

Recognising Justices Patel and Gokhale's differing views on the constitutional legitimacy of the Rules and the necessity of extending the interim stay, the bench indicated that the third judge would rule on the interim motions seeking to extend the government's earlier assurance, the report added.

"Hence, the interim applications seeking continuance of the earlier statement on stay on formation of the FCU needs to be decided by the third judge," the bench said. The court said, according to PTI, that the Chief Justice of HC passed an order on Wednesday referring the issue to a third judge.

Petitioners, including stand-up comedian Kunal Kamra and Editors Guild of India and the Association of Indian Magazine, had said that the Rules were arbitrary and unconstitutional.

Justice Patel's 148-page decision nullified the amendment, citing its resemblance to censorship. In contrast, Justice Gokhale's 92-page decision maintained the Rules, noting that they do not violate user rights.

The Union government submitted revisions on April 6, 2023, which contained provisions for a Fact Checking Unit to handle fake, inaccurate, or misleading online postings about government issues. If the FCU detects such content, social media intermediaries must either remove the post or offer a disclaimer, with the latter potentially resulting in legal consequences for the intermediary, the PTI report added.

With PTI inputs