Stand up comic Kunal Kamra moved the Bombay High Court on Tuesday challenging the recent amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021)

The amendments, specifically to Rule 3, provides that the Central government 's Ministry of Electronics and Information Technology can notify a fact-checking body which is empowered to identify and tag what it considers false or fake online news with respect to any activity of the Central government.

The telecom service providers and social media intermediaries will then have to take action against such content failing which they would lose the safe harbour protection under Section 79 of the Information Technology Act.

Kamra moved the Court challenging the revised Rule 3(1)(b)(v).

A division bench of Justices GS Patel and Neela Gokhale asked the Central government to respond om whether there was there any factual background or reasoning that necessitated this amendment.

"Was there any factual background or reasoning that necessitated the amendment? The petitioner (Kamra) is anticipating some kind of impact due to this amendment,” the bench said.

The petition was then posted for hearing on April 21.

Kamra sought a declaration that rule 3(i)(II)(A), (C) to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 is ultra vires section 79 of the Information Technology Act and Article 14 and 19(1)(a), (g) of the Constitution.

"They strike at the very rule of law and our democratic polity, as they constitute a direct assault by the respondent on freedom of thought, speech and expression, referred to by the Supreme Court as one of the pillars of our Constitution," the plea said.

Senior Advocate Navroz Seervai, appearing for Kamra, said that the amendments violate free speech under Article 19 and will have a chilling effect and should, therefore, be stayed.

"These rules are there, the chilling effect is already there. The rule is enough to chill people. After publication of this notification, I am liable to fact checking committee. I will not have say when it is retrospectively applied,” he said.

“This is in the face of Shreya Singhal, half a dozen Supreme Court judgments. This violates Article 14 and 19(2) of Constitution,” he added.

Seervai underlined that identification of what is fake and false news cannot be done by the government as the same would amount to government being a judge in its own cause, thereby violating the principles of natural justice.

“This identification cannot be by the government itself. There cannot be restriction on Article 19 at all. The rules do not come within the reasonable restrictions. Reasonable runs through it. This is against interest of public, this is neither reasonable. Look at the natural justice angle, there is no show cause, no notice,” he further submitted.

He also pointed out that social media websites have their rules to deal with fake news and the same has various protections.

If those safeguards are taken away, the careers of many who rely on social media, would be finished.

“Social media websites have rules. They give you notice, maybe once, twice, and if your continue repeating then your account is suspended. If it goes on, then your account will be deactivated. Some people have their careers on social media platforms. If that is taken away, their career is finished," he argued.

Additional Solicitor General Anil Singh, appearing for the Central government, said that the amendments have not yet come into force and hence, no interim order would be required.

“I am only saying there is no urgency for interim relief. The amendment will kick in only after a notification is issued. Milords may grant me time to file a reply,” he said.

The Court did not pass any interim order but asked the government to respond and posted the case for hearing on April 21.