During a hearing on a petition by stand-up comedian Kunal Kamra challenging the recent amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021), the Central government informed the Bombay High Court that it will delay the formation of a fact-checking body authorized by the IT Rules to identify and label false or fabricated online news related to any Central government activity until July 5.
Justices GS Patel and Neela Gokhale recorded the government attorney’s statement and set June 8, 2023 as the date for the final disposition of the case.
The statement was made on instructions by Additional Solicitor General Anil Singh and advocates Aditya Thakker and DP Singh on behalf of the Union government, who also requested that the motion for directions be heard on the same date.
Senior Counsel Darius Khambata and Arti Raghavan, representing Kamra, opposed the adjournment, expressing concern that the notification, once issued, will retroactively apply to content.
The court did not find this to be sufficient cause to immediately hear the petition for a stay or suspension of the amended rules.
“The rule will not be operable for fact check unit till it is notified. Even if matter is heard for ad-interim, it will require full hearing, covering all ground and that is likely to be heard for final disposal. We do not see why the same material has to be heard twice when it can be disposed off at stage of admission” the court asserted in its order.
The Bombay High Court has allowed Kunal Kamra to amend his petition challenging the executive’s authority to establish amendment rules. Kamra’s initial petition sought to declare rule 3(i)(II)(A), (C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, as a violation of section 79 of the Information Technology Act and Articles 14 and 19(1)(a), g) of the Constitution.
He argued that the amendment would cause telecom service providers and social media intermediaries to take action against content flagged by the fact-checking unit or risk losing the safe harbor protection under Section 79 of the Information Technology Act.
The court has scheduled the appeal to be heard on June 8, and Kamra has been granted permission to amend his petition. Meanwhile, the Ministry of Electronics and Information Technology (MeitY) filed an affidavit opposing Kamra’s petition, stating that false and misleading information could impact electoral democracy and erode citizens’ trust in democratic institutions.
However, the division bench noted that the rules did not appear to provide protection for fair criticism of the government, such as parody and satire.
