No irreversible situation: Bombay HC refuses to stay formation of Fact Check Units under IT Amendment Rules 2023

MUMBAI: The Bombay High Court has refused to stay Central governments decision to form Fact Check Units (FCUs) under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Amendment Rules 2023). 

Single-judge Justice AS Chandurkar, the third judge hearing the challenge to the validity of Rule 3 of the IT Amendment Rules (Power to the Central government to form Fact Check Units) said that no case was made out for stay on FCUs mainly because theres no irreversible situation after the FCUs is notified and all actions are subject to the High Courts final orders. 

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 reportedly stated. 

The Court was considering petitions moved by standup comedian Kunal Kamra and others seeking a stay on the notification of the FCU pending the final disposal of their pleas against the IT Rules.

While hearing the case, the judge opined that the balance of convenience tilts in favour of the government. The Court thought so after Solicitor General Tushar Mehta made a categorical submission that political opinions, satire and comedy are aspects not sought to be linked to the business of the Central government.

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SG Mehtas submission came in response to the petitioners apprehension that exchange of information in the form of political discourses or comments, political satire, and so on may be targeted if the FCU is notified. This was negated by the Solicitor General who revealed that the FCU intends only to deal with government business in its strict sense. 

"At this prima facie stage, in my view, the stand taken by the non-applicant (Centre) allays the apprehension expressed by the applicants that under the garb of 'Central Government business', the FCU would prevent expression of political views or comments, sarcasm, political satire or dissent," Justice Chandurkar stated.

Justice Chandurkar is the third judge who has been hearing the challenge to the IT Amendment Rules, 2023 after a division bench of Justices Gautam Patel and Neela Gokhale delivered a split verdict in January.

Justice Patel ruled in favour of the petitioners and struck down the provision. On the other hand, Justice Gokhale dismissed the petitions.