IT Rules challenge: Bombay High Court tie-breaker judge refuses to stay formation of Fact Check Units

The Bombay High Court on Monday refused to stay Central government notification for forming Fact Check Units (FCUs) under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Amendment Rules 2023) [Kunal Kamra v. Union of India and connected applications]..Single-judge Justice AS Chandurkar, who has been hearing the challenge to the validity of IT Amendment Rules, 2023, specifically Rule 3 which gives power to the Central government to form Fact Check Units (FCUs), said that no case was made out for stay on FCUs. "Notifying the FCU would not result in an irreversible situation for the reason that any action taken post notifying the FCU would always be subject to the validity of Rule 3(1)(b)(v) which is under challenge. 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", the judge opined.Accordingly, he rejected an application seeking a stay on the notification which would make FCU operable as per Rule 3 of the amended IT rules by which the Central government has been given power to form FCUs.Justice Chandurkar is the tie-breaker judge who has been hearing the challenge to the IT Amendment Rules, 2023 after two judges on a division bench delivered a split verdict. .The IT Amendment Rules 2023 amended the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021)..The validity of the IT Amendment Rules, 2023, specifically Rule 3, is under challenge before the High Court through a clutch of petitions.The petitioners have said that the amendments be held ultra vires Section 79 of the Information Technology Act and Article 14 (right to equality) and 19(1)(a)(g) [freedom to practise any profession, or to carry on any occupation, trade or business] of the Constitution.The amendment provides for setting up of FCUs that will flag objectionable content.The petitioners contend that this will lead to telecom service providers and social media intermediaries taking arbitrary action against content flagged by the fact checking unit.On January 31, Justices GS Patel and Neela Gokhale delivered a split verdict in the matter. While Justice Patel ruled in favour of the petitioners and struck down Rule 3, Justice Gokhale dismissed the petitions and upheld the validity of the Rule..Thereafter, the High Court Chief Justice appointed Justice Chandurkar to give his tie-breaking opinion in the case.Meanwhile, the petitioners, including stand-up comic Kunal Kamra filed applications to stay the issuance of notification which would make the FCU operable till the tiebreaker judge gives his opinion in the main case..Senior advocate Navroz Seervai, who represented Kamra argued, that the statement of the Central government that it would not notify the formation of FCUs must continue further till the final judgment in the main case is pronounced."The Central government has failed to show any instance where the existence of the statement staying FCUs led to any situation threatening national interest," he said..Solicitor General Tushar Mehta, who represented the Ministry of Electronics, Information and Technology (MeITY), opposed the stay application. Such applications must not be granted at the behest of a few individuals, he said."This could become a cause for mischief. There is nothing obnoxious or disproportionate, this provision is in public interest. We would be failing people at large if the statement continues depriving people at large of knowing the truth," Mehta argued..After hearing the rival submissions, Justice Chandurkar rejected the stay application today. This opinion on the question of stay will now be placed before Justices Patel and Gokhale, who would then pronounce the majority opinion on the question of interim relief. .[Read order]