MUMBAI: The
Bombay High Court
noted on Thursday that Solicitor General Tushar Mehta's statement, on behalf of the Centre, not to notify its
Fact Check Unit
(FCU) will continue until the issue of
interim relief
is taken up before a
third judge
for consideration. This follows the Jan 31 split verdict by a two-judge bench over its
constitutional challenge
. A third judge has been decided on by the HC Chief Justice, the bench revealed.
Stand-up comic Kunal Kamra and two others, who filed for a stay on the FCU rule—that empowers the unit to flag as fake, false, or misleading posts on social media made in connection with the business of the Central Government—will file and argue for interim relief on the rule before the third judge after the split verdict.
Justices Gautam Patel and Neela Gokhale, who had heard at length the challenge to the 2023 amendment to 3(i)(b)(v) of Information and Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, had each on Jan 31 rendered separate opinions. While Justice Patel quashed the rule as being constitutionally violative, Justice Gokhale held it was valid and dismissed the petitions filed by Kamra, Editors Guild of India, News Broadcasters & Digital Association, Association of India Magazines, and others.
On the same day, SG Tushar Mehta continued his statement against notifying the FCU for two weeks. On February 5, Kamra petitioned the HC with a plea to stay the rule, and senior counsel Navroz Seervai—who had argued the rule would have a chilling effect on free speech—argued that the SG had actually earlier made a statement not to notify the FCU until judgment is delivered, which would mean until the third Judge decides, as only then would the decision—as a majority one—qualify to be termed a ‘judgment,’ as held by the HC earlier in a pronouncement on what constitutes a judgment when there is a divergence of views.
Mehta—who had argued that the FCU will merely flag off content and is not the final arbiter of what is fake or false—had disagreed, and the Centre replied saying any question of interim relief or stay on the rule can now only be decided by the third Judge to whom the matter is being referred following the split verdict.
On Thursday, Mehta said he has no instructions from the Centre to continue the statement until the matter is finally decided on points of difference of views or until the end of the interim plea, should the present interimplea be placed before the third Judge. The SG said his statement would continue until the third Judge takes it up for interim relief.
The two Judges had a divergence of views on every aspect of the rule, said the HC. The bench had not decided so far on the question of interim relief and had proceeded to hear the matter on the merits of the main challenge, based on the statement made on behalf of the Centre, first in April 2023, and continued a dozen times.
On Thursday, Justices Patel and Gokhale said, “The interim applications would, in our view, need to be decided by the reference Judge since we are not between ourselves in agreement on the continuance of the statement.” Seervai said a presumption that because two Judges differ on merits, they will differ on interim relief will set a dangerous precedent. “We are not, in fact, suggesting anything of the kind,” said the bench, “hence not setting any precedent.”
English (US) ·