Maharashtra: Bombay High Court allows government to notify fact check unit despite petition from Kunal Kamra and others

On March 13, the Bombay High Court rendered a decision permitting the Government of India to proceed with the notification of the Fact Check Unit (FCU), despite an application filed by self-proclaimed stand-up comedian Kunal Kamra and several others challenging the constitutionality of the FCU under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023. The court’s decision marked a significant development in the ongoing legal battle surrounding the FCU’s establishment.

The division bench, comprised of Justice GS Patel and Justice Neela Gokhale, delivered a split verdict on the petition. However, a Single Judge Bench, led by Justice AS Chandurkar, expressed that Kamra’s plea did not warrant interim relief.

Kunal Kamra, alongside the Editors Guild, the News Broadcast Digital Association, and the Association of Indian Magazine, jointly filed a plea seeking guidance on the procedure for the third judge’s judgment announcement. Justice AS Chandukar, who presided over the matter, concluded that Kamra’s plea did not provide sufficient grounds to justify the court’s issuance of an order directing the Central Government to refrain from notifying the FCU.

The Government of India had introduced an amendment to the Act, incorporating rule 3(1)(b)(v) of the IT Rules amendment 2023, which empowered the government to establish the FCU. This unit’s primary objective is to authenticate the content disseminated about the government’s initiatives on various social media platforms. Additionally, the amendment grants the government authority to remove false, fake, or misleading information from these platforms, with the FCU entrusted to issue orders for such removal.

Following Justice Chandurkar’s opinion, the reconstituted bench of Justice Patel and Justice Gokhale delivered an interim order, affirming that the petitions lacked merit for interim relief. The court stated, “The third judge has rendered his opinion. Consequently, the majority view is that the interim applications for stay and continuation of the previous statement (by the Union not to notify the FCU) are rejected.”

The third judge’s opinion on the interim relief will be presented before the earlier division bench for the issuance of appropriate orders. With the Bombay High Court rejecting the application for stay, the Government of India retains the authority to proceed with the FCU notification under the amended IT Rules, which empower such units to identify and order the removal of false, fake, and misleading news circulating on social media platforms.

Earlier in the proceedings, Justice Patel had nullified the amendment rule, while Justice Gokhale ruled against the petitioners, including Kamra and the aforementioned organisations, who contested the FCU’s constitutionality.

Senior Advocate Navroz Seervai represented Kunal Kamra and the other petitioners, arguing that the Government of India had pledged to withhold FCU notification until the final judgment was issued, contingent upon the third judge’s opinion on the earlier verdict of the two-judge bench. Solicitor General Tushar Mehta, appearing for the Ministry of Information and Technology, opposed the interim stay, contending that the court was addressing a medium devoid of geographical constraints. Mehta emphasised the global necessity to combat fake news, asserting India’s endeavor to address the issue through a minimalist approach.