The Bombay High Court today delivered a split verdict in petitions challenging the amendment to the IT Rules, which allows the government to identify “fake news” about itself on social media, Livelaw reported. 

Justice Gautam Patel of the division bench upheld the petitioners’ contentions, while Justice Neela Gokhale supported the government’s argument. 

Justice Patel said, “There is a disagreement between us. I have held for the petitions and Justice Gokhale has held for the government. So now the matter will be heard afresh by a third judge.”

The matter will now be placed before the Chief Justice of the HC, who will assign it to a third judge.

During the hearing, solicitor general Tushar Mehta agreed to extend by 10 more days the government’s earlier assurance to not notify the fact-check unit proposed to be set up under the amended IT Rules. Mehta had earlier said the unit will not be notified until the judgement is delivered. 

The amendment, originally notified on April 6 last year, said social media companies and other intermediaries must take down content deemed fake by a government fact-check unit. It was widely criticised by press groups, opposition leaders and journalists.

The petitions challenging the amendment were filed by stand-up comedian Kunal Kamra, the Editors Guild of India and the Association of Indian Magazines. Kamra’s plea said it will “have a chilling effect” on the public.

In September last year, the Bombay High Court agreed that the amendment gives the government “unfettered power” in the absence of any “guidelines and guardrails”. At the time, Justices Patel and Gokhale had also questioned the government over the need for the amendment and the provision for a separate fact-check unit despite the establishment of the Press Information Bureau’s own fact-check unit.

“You have a PIB which has its presence on social media. Why then was this amendment required and [the need] for an FCU to be set up? I think this amendment wants to do something more,” said Justice Patel. 

Pointing out that the government was the “sole arbiter without any checks and balances”, he had emphasised the need to set up guidelines.

Representing the government, solicitor general Tushar Mehta had said the PIB’s fact-check unit was “teethless”.

“The IT Rules are not related to curbing free speech at all. The government is not trying to proscribe and prohibit any expression of opinion, criticism, or comparative analysis...in fact we welcome them, encourage them and learn from them,” he had said, adding that the rules have “nothing to do with humour or satire…as far as the content does not cross the line”.

Newslaundry reported on length on the controversies surrounding the amendment and why it’s a blow for press freedom. Read about it here.