Mumbai: The Bombay High Court on Monday while refusing to grant an interim stay on notification of a fact checking unit (FCU) under amended Information Technology (IT) Rules said that the same was not necessary in view of the “categorical submission” by Union government that political opinions, satire and comedy are aspects not sought to be linked to “the business of the Central Government.”
The court also noted that notifying the FCU would not result in an irreversible situation as any action taken post notifying the FCU would always be subject to the validity of the challenged amended Rules.
“The balance of convenience tilts in favour of the non-applicants in view of the categorical submission made by the learned Solicitor General that political opinions, satire and comedy are aspects not sought to be linked to “the business of the Central Government,” Justice Chandurkar said in a detailed 27-page order.
The judge further noted: “This situation when pitted against larger public interest leads me to opine that grave and irreparable loss is not shown to result if the FCU is notified warranting the passing of an interim direction of not notifying the FCU till the challenge to Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 is finally decided.”
Hence, Justice AS Chandurkar said that in his opinion no case was made out to direct the Union government to continue its earlier statement that it would not notify the FCU pending hearing of petitions challenging the amendment to IT Rules.
The HC passed the order on applications filed by standup comedian Kunal Kamra and others seeking interim stay on the notification of the FCU till final verdict in their petitions against the amended IT Rules.
The pleas against the Rules were referred to Justice Chandurkar after a bench of Justices Gautam Patel and Neela Gokhale, on January 31, gave a split verdict.
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.
Senior counsel Navroz Seervai, for Kamra, had argued that expressions “fake, false or misleading” are vague and undefined thus being susceptible to gross abuse and misuse. Similarly, the expression “business of the Central Government” has been stated in wide terms which would encompass each and every activity of the Central Government resulting in the Rule travelling beyond the empowering Section which is Section 87 of the Act of 2000.
Seeking an interim stay, Seevrai said that since one judge ruled against the amended rules, the case was made out for the reference judge to stay the notification.
However, Solicitor General Tushar Mehta submitted that the union has resorted to the least restrictive mode keeping in mind the relevant constitutional provisions. It was only the business of the Central Government that was sought to be brought within the purview of the FCU and the object was to identify fake, false or misleading information in that regard. There was no object of either preventing or controlling satire, comedy or diverse political opinions, Mehta had contended.
Justice Chandurksr said that the pleadings indicated that prima facie petitioners are social media users “in contradistinction to defined intermediaries” under Section 79 of the Act of 2000.
The court noted that the petitioners apprehended being targeted, if the FCU was notified , since there was likelihood of exchange of information in the form of political discourses or comments, political satire etc.
However, the court relied on Mehta’s submission that the rule intends only to deal with government business in its strict sense and that it did not aim or attempt to prevent satire, sarcasm or political comments, while refusing to grant interim stay.
The matter will not be referred to the bench of a justices Patel and Gokhale to pass an order with regard to interim stay on FCU notification. With Justice Chandurkar's opinion, the Centre would get clearance to notify the FCU under the Rules.
