The Bombay high court on Wednesday began hearing in the applications filed by standup comedian Kunal Kamra and others seeking stay on notification of the Centre’s Fact Check Unit (FCU) until the third judge decides on the issue.
Justice AS Chandurkar was appointed to decide on the split opinions given by a bench of Justices Gautam Patel and Neela Gokhale on petitions challenging the amendment to the Information Technology (IT) Act with regard to setting up of FCU.
Details of case
Kamra’s counsel Navroz Seervai submitted that the FCU, intended to flag fake, false, or misleading online content related to the central government, has a “chilling effect” on the public and the essence of “democracy”. He argued that the amended Rule ostensibly meant for intermediaries, directly affects the user's freedom of speech on the internet.
The counsel said that no intermediary would want to lose safe harbour under the new rule. The Rule has consequences in the field of criminal law, hence no intermediary would want to cross swords with the government, which would lead to self-censorship.
On February 15, Centre informed the HC that it will not notify the FCU till the third judge decides on the applications for interim relief.
However, Seervai argued that the Centre was backtracking on its statement made last April that it will not notify the FCU till the verdict was delivered in the petitions. He suggested that the split opinion was not a “verdict” and hence the statement should continue till the third judge renders his opinion. The bench of Justices Patel and Gokhale would then reassemble and pronounce the “final verdict”.
“It was not open to the Union to withdraw this statement. It necessarily has to be replaced with an interim order [by the court], so the petition, in a sense, is not rendered infructuous,” Seervai said.
Advocates Shadan Farasat and Gautam Bhatia for Editors Guild of India, News Broadcasters and Digital Association, and Association of Indian Magazines, supported Seervai’s arguments and sought stay on the notification of the FCU, in case the Centre was unwilling to continue its statement to the effect.
Centre's IT Act
The Centre amended the IT Act last year which empowered the Central government to flag “fake, false and misleading” news pertaining to the government on social media through FCU.
On January 31, the bench of Justices Gautam Patel and Neela Gokhale had delivered a split verdict. Justice Patel ruled against the government and struck down the amendment whereas Justice Gokhale had upheld its validity. Then CJ then appointed Justice Chandurkar to deliver his opinion, which will be the deciding opinion.
After his opinion, the bench of Justices Patel and Gokhale will then pronounce the majority judgment.
