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Synopsis

During the hearing in the plea filed by comedian Kunal Kamra challenging the amended IT Rules establishing the Fact Checking Unit, Senior Advocate Navroz Seervai expressed his concerns before a division bench of the Bombay High Court comprising Justice GS Patel and Justice Neela Gokhale about the new fact-checking unit. He stated that the people of the country are already scared.

“The people of this country today are already sacred which they should not be in a democracy and the rule of law. Under 19(1)(a) the initial burden is a light burden. I have to just prima facie show that the rule does not come under reasonable restrictions” Seervai said.

Today when the matter came up for hearing before the division bench, Additional Solicitor General, Anil Singh sought an adjournment saying that the Solicitor General, Tushar Mehta will be leading in the case.

Senior Advocate Navroz Seervai then requested that the bench may hear the petition for ad-interim relief.

He argued that there was nothing great about the Central Government forming a fact-checking unit and if the false news is a disease then the matter could be made open to the State Government.

“What is so great about Central Government? If false news is a disease, then why not open it to the state government? It violates ex-facie. This comes within 5 items of Ram Krishna Dalmia. If ex-facie is embedded in the provision it has to be struck down. Can this survive in democracy?” Seervai submitted.

Further, he submitted that the Supreme Court in Amish Devgan’s case had said that the government could not be the one to decide fake and false news and that the chilling effect of the new rule is already there.

Seervai also contended that to balance the fundamental rights and freedom of speech with the government protecting itself, the Central Government can wait for 6 weeks.

“He is not willing to make a statement till June 10, not that I am conceding. Surely in the balance of fundamental rights, freedom of speech, and govt protecting itself they can wait 6 weeks. Why should citizens be jeopardized? Indian Express came out with an article that fact-checks units to come up immediately. This is not idle gossip. The centre has not opposed it,” Seervai said.

ASG Anil Singh objected to it while questioning the urgency of the petition. “If the court is hearing then I have a preliminary objection. It is a matter of 4 days. What is so urgent that it can't wait for a week?” ASG said.

Justice GS Patel then said that the bench would not be available later in the week and that other benches also have heavy dockets.

“This bench will not be available later. Other benches are equally heavy. You want tomorrow or the day after? It can be at 9:30. I have confidence in you (ASG). It's not that ASG of our court cannot handle it. You have your army and you can consult if you want. We will keep it tomorrow. It will be time-limited and on ad interim relief,” Justice Patel said.

The bench during the hearing indicated that prima facie the petition survives and it is pressable.

“You are not affecting parody, satire, that is what your affidavit says. That is not what your rules say. There is no protection granted. That we will have to see," the bench orally remarked.

The high court then, to accommodate both parties, kept the matter for hearing on Thursday at 10 AM.

Stand Up Comedian Kunal Kamra has approached the Bombay High Court challenging amended Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021).

Kamra has challenged the provision that empowers the government to fact-check social media posts through the fact-checking unit of the Central Government and take the posts down from social media.

The Central Government in its reply to the petition has said that the fact-checking unit is a globally well-established mechanism for dealing with fake news and misinformation.

“It is further submitted that fact checking through fact checking units is a globally well- established mechanism for dealing with fake news and misinformation. The International Fact Checking Network ("IFCN") was launched in the year 2015 to bring together the growing community of fact-checkers around the world and the advocates of factual information in the global fight against misinformation” the affidavit read.

The Centre has also stated that the role of the fact check unit is restricted to any business of the Central Government, which may include information about policies, programs, notifications, rules, regulations, implementation thereof, etc. Further, it stated that the fact check unit may only identify fake or false, or misleading information and not any opinion, satire, or artistic impression. Therefore, the aim of the government with regard to the introduction of the impugned provision is explicitly clear and suffers from no arbitrariness or unreasonableness.

The government in its affidavit has cited the international research conducted by MIT which said that falsehoods are 70% more likely to be retweeted on Twitter than the truth and false news reached 1500 people six times faster than the truth.

Case Title: Kunal Kamra vs Union of India