The Bombay High Court on Wednesday rejected an application seeking a stay on the formation of a fact-checking unit by the Centre, LiveLaw reported.

A division bench of Justices Gautam S Patel and Neela Gokhale pronounced the interim order after Justice AS Chandurkar on Monday refused to stay the formation of the fact-checking unit saying that prima facie, no case was made out to not notify the setting up of the body.

The court was hearing four petitions filed by stand-up comedian Kunal Kamra, the Editors Guild of India, the Association of Indian Magazines and the News Broadcast and Digital Association.

They have challenged the validity of amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, that gave the Centre the power to set up a fact-checking unit.

The amendment to the information technology rules allowed a government-notified fact-checking unit to tag Union government-related news as “fake news”.

In January, the same division bench comprising Patel and Gokhale had delivered a split verdict in the matter. While Patel had ruled in favour of the petitioners and struck down the amendments, Gokhale had dismissed the pleas.

The matter had to be placed before a three-judge bench as per the rules of the High Court.

On Monday, Chandurkar had referred the matter back to the same bench after delivering his verdict.

On Wednesday, Patel and Gokhale said that the third judge had rendered his opinion. “Consequently, the majority view is that the interim applications for stay and continuation of the previous statement [by the Union not to notify the fact-checking unit] are rejected,” said the latest order by the division bench.

Split verdict in January

In January, the petitioners had urged the division bench to set aside the provisions of the amendment, arguing that the rules were arbitrary and unconstitutional.

The amendments did not fall within the scope of reasonable restrictions on freedom of speech provided in Article 19(2) of the Constitution, the petitioners said.

They argued that the rules did not have a provision for a showcause notice to be served before action was taken by the fact-checking unit.

Further, the rules did not specifically define what was “blatantly false, fake and misleading” and what constituted “government business”. The government cannot adjudicate on the veracity of the information on social media, the petitioners said.

The amendment would have a “chilling effect” as the provisions would give the government “monopolistic power” to decide what information was required to be circulated about its functioning, Bar and Bench quoted the petitioners as having pleaded.

Kamra had argued that as a political satirist who relied on social media platforms to share his content, the new rules could lead to arbitrary censorship of his work.

Several civil society organisations had also expressed concern about the potential misuse of the provision pertaining to the government’s fact-checking unit.

In April last year, the Centre had argued in an affidavit before the court that false and misleading information could adversely damage electoral democracy, the economy and the social fabric of the country in many ways.

The Centre had told the court that the rules did not prohibit expression of opinion or critical analyses against the government.

The content flagged by the fact-checking unit to an intermediary such as Facebook and Instagram would not be removed automatically, the Centre told the court. The intermediary had a choice to either remove it right away or add a disclaimer that the content had been flagged, Bar and Bench quoted the Centre as having said.