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Synopsis

The Bombay High Court, on Friday, reserved its judgment in the petitions challenging the amended IT Rules that establish a fact-check unit.

A division bench comprising Justice GS Patel and Justice Neela Gokhale indicated that the verdict will be delivered on December 1, 2023.

“Arguments are concluded. We permit all counsel to put in supplementary notes by 14 October. SG states that the previous statement will continue until judgement is delivered. We list this matter for judgement on 1st December 2023,” the bench said.

The high court was hearing a petition filed by stand-up comedian Kunal Kamra, the Editors Guild, the News Broadcast Digital Association and the Association of Indian Magazine challenging the amended IT Rules.

The petitions had challenged Rule 3(i)(b)(v) of the amendments provides that the Central Government can identify fake or false or misleading content through a fact check unit of the Central Government which must be notified and published in the official gazette.

Today, the bench was hearing the rejoinder submissions of the counsels appearing for the petitioners.

Senior Advocate Navroz Seervai, representing stand-up comedian Kunal Kamra, argued that the rules did not explicitly mandate social media intermediaries to add a disclaimer if something was identified as fake, false, or misleading by the fact-checking unit. He contended that the central government was asking the court to read this concept into the rule.

“There is nothing about the disclaimer. Where do we get this? It's nowhere there in the rule. How do you read a concept in a rule? They are not asking you to rewrite but entirely mangle the rule. The consequence is of superstructure argument falling on the settled principle of law,” Seervai said.

Seervai further argued that the rule was discriminatory and violative of Article 14 of the Constitution. To substantiate this point, he cited examples and said,

“If the department secretary makes a statement that the information they have is false, can they write to FCU or are they ring-fenced? Is that not an aspect of discrimination under 14? Or are they saying that if someone from the government makes false statements then you as a citizen have the right to approach FCU? Will the FCU say? No, I am sorry,” Seervai said.

Senior Advocate Arvind Datar, representing the News Broadcast Digital Association, argued that the central government had created a constitutionally invalid provision targeting social media intermediaries. He also suggested that the government could potentially introduce new rules for news channels, preventing them from hosting certain information critical of the central government. This could then extend to rules against print media as well.

During the hearing, the bench pointed out that the rules did not specify whether a particular piece of information within a news article would be flagged as fake, false, or misleading, or if the entire post or article as a whole would be flagged.

“Let's take an example of a newspaper. I'll not name it. A national newspaper that has a social media account. Many of them do. The news report says that it has relied on source ‘x’ that such and such thing happened. Newspapers say it has information and a source of information. If FCU says it's fake then what is fake? Source or information? We are presuming that the government does not desire to tell the news channel that you can't have a source but is only addressing the content. From the presently worded rules, the only instruction is that the post is fake but what part?” the court asked.

Advocate Shadan Farasat, representing the Editors Guild of India, argued that in a democratic society, the determination of government facts should be left to the people and not the government itself. He emphasized that it should not be the government's prerogative to decide what is fake, false, or misleading.

Solicitor General Tushar Mehta made a statement on behalf of the Central Government during the proceedings, assuring the court that the fact check unit would not be notified by the Central Government until the high court's judgment is delivered.

Yesterday, Advocate Gautam Bhatia appearing for the Magazine Association of India concluded his rejoinder submissions.

Click here to read the arguments of the Central Government.

Case title: Kunal Kamra & Ors vs UOI