Won’t notify fact checking unit till third judge takes up matter: Centre to HC

In their split verdict, justice Patel held the amendment to the IT Rules to be unconstitutional, whereas justice Gokhale dismissed the petitions, upholding validity of the amendment. In view of the split verdict, the matter is referred to a third judge – justice AS Chandurkar

MUMBAI: The ministry of electronics and information technology (MeitY) on Thursday continued its earlier statement made before the Bombay high court that the notification for setting up ‘fact checking unit’, purportedly to regulate the content on social media, would not be issued till the third judge takes up the petitions challenging the amendment to the Information Technology Rules for hearing.

Won’t notify fact checking unit till third judge takes up matter: Centre to HC

The statement came from solicitor general Tushar Mehta in response to multiple applications filed by comedian Kunal Kamra and others, seeking to halt the notification of the fact-checking unit until a third judge examines the matter.

Previously, on January 31, the division bench of justice Gautam Patel and justice Neela Gokhale delivered a split verdict on petitions, challenging constitutional validity of amendments to the Information Technology Rules, 2021. One of these changes mandates intermediaries – like social media platforms -- not to publish, share, or host fake, false, or misleading information concerning any central government business, as notified by a government fact-checking unit to be set up under the amendment. The amendment also stated that the failure to comply would result in intermediaries losing “the safe harbour” protection available to them under provisions of the Information Technology Act. Kamra and others argued the amendment to the IT Rules violated their freedom of speech and expression.

In their split verdict, justice Patel held the amendment to the IT Rules to be unconstitutional, whereas justice Gokhale dismissed the petitions, upholding validity of the amendment. In view of the split verdict, the matter is referred to a third judge – justice AS Chandurkar.

In this backdrop, on Thursday, Kamra’s counsel, senior advocate Navroz Seervai, highlighted that the central government has repeatedly extended notifying the fact checking unit because of pendency of the petitions. Seervai suggested that the statement made by the solicitor general should be extended until Justice Chandurkar’s decision and requested for interim relief in the meantime.

Solicitor general responded saying the government would not activate the fact-checking unit until the third judge takes up the matter. He, however, added that thereafter the third judge can consider the plea for interim relief as well.

Seeking clarification, Seervai questioned the implications of the term “taken up” regarding the continuation of the assurance. “If the third judge takes up the matter on February 20, but the hearing is not concluded on that day, would the statement come to an end,” he asked.

Mehta clarified that the assurance would not extend beyond the date on which the matter would be considered.

Unable to further compel the government, the court decided to refer the plea for interim relief to justice Chandurkar. The judges said they had divergent views on the main issue of constitutional validity of the amendment and also on whether the interim stay needs to continue, and hence, the interim applications seeking continuance of the earlier statement on stay on the formation of the FCU also needs to be decided by the third judge,” the bench said.

The court clarified that although a difference in opinion on the merits doesn’t always imply a difference in opinion on the status quo, since there is disagreement among judges regarding the continuation of the assurance, it will need to be decided by the third judge.