Challenge To IT Amendment Rules; Bombay HC Refuses Stay On Notification Of Fact Check Units By The Centre




Bringing finality to the question of setting up a Fact Check Units to be notified by the Union government, the Bombay High Court on Wednesday refused to grant any relief in the petitioners’ challenge against the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023.

The bench of Justices GS Patel and Dr.Neela Gokhale passed an interim order yesterday after Justice AS Chandurkar denied any interim relief to the petitioners in terms of continuing the stay on notification of FCUs by the Centre.

Justice Chandurkar deemed that there was no reason to stay such notification until he decides the larger challenge to the said Rules.


The Division Bench of Justices Patel and Gokhale had delivered a split verdict on the batch of petitions before them. While Justice Patel struck down the amendment as made in 2023 to Rule 3(1)(b) (v) of the Rules of 2021 and proceeded to allow the writ petitions, Dr.Gokhale J held that the impugned Rule was valid and proceeded to dismiss the writ petitions. It is in the said backdrop that these writ petitions were placed before Justice Chandurkar for rendering an opinion on the points of difference expressed by the learned Judges.

As per the dissenting judgement pronounced by the division bench on February 8, a statement was made initially on April 27, 2023 that the FCU as contemplated by Rule 3(1)(b)(v) as amended would not be notified until July 5, 2023. That statement was thereafter continued on various occasions during pendency of the proceedings and it was noted that no injunction was granted on merits.

The order dated February 8 states that the Interim Applications would be required to be decided by the Reference Judge since the Judges constituting the Division Bench could not agree as to whether the status operating ought to be continued.


Senior Advocate Navroz Seervai appeared on behalf of one of the petitioners and at the very outset argued that since the Solicitor General had assured the Court earlier that the said FCU would not be notified until the judgement in this case is rendered. Mr Seervai submitted that there is no justifiable reason not to continue with the said statement.

It was then submitted that the Blocking Rules of 2009 as well as the Press Information Bureau – PIB were in place and any potential violation of the provisions of Section 79 of the Act of 2000 could be taken care of under those provisions. No material was brought on record to indicate any adverse instance since April 2023 in the absence of the FCU.

This would indicate, prima facie, that existing subordinate legislation was sufficient to take care of any situation arising in the interregnum till the reference was decided without the FCU being notified, Mr.Seervai said. It was also urged that the expressions “fake, false or misleading” were vague without there being any manner of identifying the same. Such identification of any message or information as fake, false or misleading would be done by the FCU of the Central Government alone as a sole arbiter with regard to the business of the Government. “Business of the Central Government” was also an undefined expression and would cover each and every aspect involving the Central Government thus resulting in its arbitrary use, Mr.Seervai said.

Mr. Tushar Mehta, the Solicitor General opposed the prayers made in the Interim Applications. He submitted that there was no intermediary before the Court raising a challenge to the provisions of Rule 3(1)(b)(v) of the Rules of 2021 as amended and that the applicants were mere users. In absence of any challenge to the amended Rule being raised by any intermediary, there was no basis whatsoever to grant the interim relief as prayed for. Referring to various provisions of the Act of 2000 including the provisions of Section 2(v) defining “information”, Section 2(w) defining “intermediary”, Sections 69A and 79 thereof, Mr.Mehta contended that the impugned Rule prescribed the least restrictive way of dealing with fake, false or misleading information.

An intermediary on being informed that a piece of information was either fake, false or misleading was merely required to place a disclaimer with regard to such information which would then enable “safe harbour” of the intermediary to continue. The Rule was aimed only at dealing with “business of the Central Government” strictly and it did not aim to prevent satire, sarcasm or political comments nor was it intended to muzzle political views of any kind. The business of the government was as mentioned in the Rules of business and there was no manner whatsoever of travelling beyond the same while seeking to implement the said Rule, Mr. Mehta argued.

Justice Chandurkar’s Opinion

After hearing submissions from both sides, Justice Chandurkar observed –
“It is the submission made on behalf of the non-applicants by the learned Solicitor General that the impugned rule intends only to deal with government business in its strict sense and that it did not aim or attempt to prevent satire, sarcasm or political comments. Political views are not sought to be muzzled.
At this prima facie stage, in my view, the stand taken by the non-applicants allays the apprehension expressed by the applicants that under the garb of “Central Government business”, the FCU would prevent expression of political views or comments, sarcasm, political satire or dissent.”

Furthermore, Court noted that at this stage it is to be kept in mind that the FCU has not yet been notified.

Courts Should Be Loath In Passing Interim Orders

Justice Chandurkar said- “The Supreme Court in Bhavesh D. Parish and others vs. Union of India and Another has cautioned that merely because a statute comes up for examination and some arguable point is raised which persuades the Court to consider the controversy, the legislative will should not normally be put under suspension pending such consideration. Unless the provision is manifestly unjust or glaringly unconstitutional, the Courts must show judicial restraint in staying the applicability of the same.

In Health for Millions vs. Union of India and others, the aforesaid decision has been referred to and it has been reiterated that in matters involving challenge to the constitutionality of any legislation enacted and Rules framed thereunder, the Court should be extremely loath to pass an interim order except when the Court is fully convinced that the particular enactment or Rule framed is ex-facie unconstitutional and factors like balance of convenience, irreparable injury as well as public interest are in favour of passing an interim order.”

Balance of Convenience

Finally, Justice Chandurkar noted –
“In my view, the aforesaid factual as well as fundamental aspects have material bearing on the prayer as made by the applicants seeking to restrain the non-applicants from notifying the FCU.
Though an arguable case as regards validity of Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 is made out especially when the said Rule has been held to be ultra-vires Articles 14 and 19(1)(a) of the Constitution of India as well as going beyond the empowering provision under the parent statute by one learned Judge, the balance of convenience tilts in favour of the non-applicants in view of the categorical submission made by the learned Solicitor General that political opinions, satire and comedy are aspects not sought to be linked to “the business of the Central Government.”

Thus, after taking into consideration opinion given by Justice Chandurkar the division bench passed the interim order yesterday, stating-

“The third judge has 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 FCU) are rejected.”

Author: Nitish Kashyap

Click Here To Read Justice AS Chandurkar’s Opinion


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