A two-judge bench of the Bombay High Court, on Wednesday, issued a split verdict on the pleas challenging the constitutionality of a government-backed fact check unit (FCU). Justice GS Patel ruled that the proposed FCU is not constitutional, while Justice Gokhale upheld it. The issue will now be placed before the Chief Justice of the Bombay HC, who in turn will assign the case to a larger three-judge bench.
The Bombay HC has been hearing a batch of pleas that have challenged the Information Technology Rules, pertaining to a Fact Check Unit. Rule 3(1)(b)(v) says that a social media intermediary shall not host content that is flagged as fake or false by any agency authorised by the central government for fact-checking.
In April 2023, Bombay HC began hearing the pleas against FCU. The Centre had then submitted that it would not implement the Rules till the HC decides the issue. This undertaking was extended on multiple occasions. While delivering a split verdict, the
Bombay HC requested the Centre to extend the non-implementation by another two weeks.
The Solicitor General Tushar Mehta, appearing for the Centre, was hesitant to grant a two-week extension. He reasoned before the HC that the intermediaries who will get impacted by Rule 3(1)(b)(v) on the FCU are not even before the court. After repeated requests from the Bombay HC, the Centre finally agreed to hold the implementation of the IT Rules for another 10 days. The Bombay HC accepted the compromise, noting that it would allow time for the Chief Justice of Bombay HC to decide on the future course of action.
The petitioners in this case include Kunal Kumra, the Editors Guild of India, Association of Indian Magazines. They had argued that rules would cause disproportionate, unjustified censorship of online content concerning the central government. Petitioners argued that FCU rules are over-broad, vague, patently discriminatory, and arbitrary. The HC had reserved its judgment in September 2023.
