Kunal Kamra Case: Bombay HC Refuses Interim Stay On Fact Check Units Under New IT Rules 2023

The Bombay High Court on Monday refused to stay the formation of Fact Check Units (FCUs) till final verdict comes on the constitutionality of the new IT Rules 2023

The Bombay High Court on Monday refused to stay the formation of Fact Check Units (FCUs) till final verdict comes on the constitutionality of the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Rules 2023).   

The third referral judge Justice AS Chandurkar of high court said that the Centre's statement to not notify the FCU under the 2023 IT Amendment Rules need not continue. 

Justice AS Chandurkar was appointed as the third referral judge after a two-judge bench of the Bombay High Court gave a split verdict on the pleas by satirist Kunal Kamra and others challenging the new IT Amendment Rules, 2023.

Kamra had filed an interim plea seeking a stay on setting up FCUs till final verdict is announced. On Thursday, the high court had reserved its judgment on this plea. 

In April 2023, the Ministry of Electronics and Information Technology (MeitY) notified the new IT Rules 2023. According to these new rules, the government can ask social media intermediaries (like Facebook, Twitter, Instagram, etc.) to remove any news related to the ‘business of the Central government’ that was identified as ‘fake, false, or misleading’ by FCU. This FCU will be established by the Centre. 

Kunal Kamra, Association of Indian Magazines, News Broadcasters of Digital Association & Editor's Guild of India had moved the high court challenging the new IT rules.

According to the petitions, the new IT Rules 2023 are in conflict with Section 79 of the Information Technology Act, 2000 (IT Act) and the Supreme Court's judgment in Shreya Singhal v Union of India (2015) case.

The said section is a provision that protects social media intermediaries from liability for content posted by users. Under Section 79(3), the social media intermediaries must remove content when asked by the Centre. However, Kamra has said that according to the Shreya Singhal judgment the Centre can issue such notifications only through a court order. Kamra challenged the new IT Rules 2023, saying that they have enabled the Centre to avoid court, and act as both the ‘Judge and the Prosecutor’.

Kamra further challenged the rules on the grounds that they are violative of Article 14, 19(1)(a) and 19(1)g of the Constitution.

In the Shreya Singhal judgment, Section 66A of the IT Act was struck down by the Supreme Court as unconstitutional because it suffered from the ‘vice of vagueness’. Kamra has challenged the phrase ‘business of the Central Government’ in the IT Rules 2023 for being ‘overbroad and vague’.