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Bombay High Court rejects stay on Fact-Checking Unit with a majority view

Justice A S Chandurkar rejected the interim relief sought by petitioners and refused the stay on the formation of the fact-checking unit.

Update, 14/03/2024 at 10 AM: Taking Justice A S Chandurkar’s – the third referral judge in the fact-checking unit case – opinion on the dismissal of the stay order into consideration, the two-judge Bench of the Bombay High Court stated that the majority view is to reject the applications for continuation of the undertaking that the Fact-Check Unit would not be constituted till final judgement is rendered. This means that while the constitutionality of the fact-checking unit is still under contention, the government has the go-ahead to set-up such a unit.

Original story, 11/03/2024 at 6:47 PM:

What’s the news: Justice A S Chandurkar, the third referral judge of the Bombay High Court hearing the state-appointed fact-checking unit (FCU) case, on Monday rejected the interim relief sought by petitioners in this case as well as the stay on the formation of the FCU, as per a tweet by the Internet Freedom Foundation (IFF), which is providing legal assistance in the case. While the 6-month old stay order has now been dismissed, the date for the next has not been announced by the court.

As per tweets by LiveLaw, Chandurkar said, “In my opinion, no case has been made out to direct that the statement made on behalf of the non-applicants that the fact check unit should not be notified, should be continued during present proceedings as an order of the court… It is clarified this opinion is only on a prima facie consideration of the issues that arise and has been made in context of the prayers of the interim application… The interim applications should now be placed before the referral bench for appropriate orders.”

Earlier, on January 31, 2024, the Bombay High Court bench of Justices Neela Gokhale and G.S. Patel had delivered a split verdict in this case, with Gokhale upholding the FCU proposal and Patel siding with the petitioners. The main petitioners are comedian and satirist Kunal Kamra, the Editors Guild of India, and the Association of India Magazines that IFF represents, with interim applications filed by the News Broadcasters & Digital Association.

What is the petition against?

Following the announcement of the FCU in 2023, Kamra filed a petition in the Bombay High Court in April 2023 asking that the FCU and the amendment under which it was introduced be deemed unconstitutional. The Editors Guild of India raised a similar petition months later. The Association of India Magazines followed suit in June 2024, adding that the rule violates fundamental rights to equality, speech, and liberty. Now, all these petitions are being heard together by the court.

Keeping up with the case: We’ve reported extensively on the fact check amendment, the challenges to it, and the in-court proceedings. Here’s our list of top reads:

  • April 2023: Our breakdown of the government’s plans to fact-check government-related information online. [Read]
  • April 2023: The amendment faces its first legal challenge with political satirist Kunal Kamra’s Bombay High Court petition. [Read]
  • June 2023: The IT Ministry informs the Bombay High Court that the amendment won’t go into force before July 5th, 2023. [Read] In June, the IT Ministry extends the stay until July 10th. [Read]
  • June 2023: The Association of Indian Magazines files its challenge against the amendment at the Bombay High Court. [Read]
  • June 2023: The Editors Guild of India files its challenge against the amendment at the Bombay High Court. [Read]
  • June 2023: Government defends fact check amendment in affidavit filed before Bombay High Court, says fake speech adversely impacts society and requires regulation. [Read]
  • The hearings:
    • July 2023: Senior Advocate Navroz Seervai appearing for Kunal Kamra questions the government’s ‘nanny state’ approach to dealing with misinformation. [Read]
    • July 2023: Justice G.S. Patel raises questions on the authority being conferred to the fact check unit. [Read]
    • July 2023: Justice G.S. Patel asks whether the offline printed versions of online information will also be censored. [Read]
    • July 2023: Petitioners critique the lack of definitions in the amendment, including of ‘fake’, ‘false’, ‘misleading’, and ‘business of the Central government’. [Read]
    • July 2023: Petitioners argue that the fact check amendment violates proportionality tests, which measure infringements on fundamental rights like free speech. [Read]
    • July 2023: Petitioners critique the multiple free speech concerns raised by the fact check amendment, including on dissent, journalism, and more. [Read]
    • September 2023: Solicitor General Tushar Mehta opens the government’s defence of the provision, argues that it is ultimately the courts who decide on the validity of an intermediary’s decision on a fact check notice. [Read]
    • September 2023: Petitioners respond to Mehta’s defence, arguing that it implies that choosing to keep up content will lead to loss of safe harbour. [Read]
    • September 2023: Bombay High Court sets date for final judgment. [Read]
    • January 31, 2024: Bombay High Court’s two-judge Bench gives a split verdict and sends the case for hearing before a third referral judge. [Read]

We will update this story when we have more information.

Also Read:

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I'm interested in the shaping and strengthening of rights in the digital space. I cover cybersecurity, platform regulation, gig worker economy. In my free time, I'm either binge-watching an anime or off on a hike.

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