In a plea before the Bombay High Court, comedian Kunal Kamra has challenged an amendment to the Information Technology Rules, 2021 that allows the central government to identify “fake news” about itself on social media platforms and mandate the platforms to take the content down.

The amendment was notified by the Ministry of Electronics and IT (MEiTY) on 6 April and empowers the ministry to establish a fact-checking unit that can “identify fake or false or misleading online content in respect to any business of the Central Government.” Subsequent to identification, online intermediaries will have to take down such content unless they wish to give up the legal immunity they currently have for hosting third-party content on their platforms.

The comedian has challenged the amendment, pleading that the new rules would amend the IT Rules in a way that violates prior judgments of the Supreme Court, has a “chilling effect” on the people, and is beyond the legal authority of the ministry with respect to intermediary safe harbour provisions of the IT Act, 2000 and the fundamental right to equality and free speech under Articles 14 and 19 respectively.

“They strike at the very rule of law and our democratic polity, as they constitute a direct assault by the respondent authorities on freedom of thought, speech and expression, referred to by the Supreme Court as one of the three pillars of our Constitution,” states Kamra’s petition.

Accordingly, the comedian has sought that in the interim, the Bombay High Court stay the amended Rules. Kamra requested that the court declare the amended Rules unconstitutional and prevent their implementation.

In response, according to LiveLaw, the central government submitted that a separate notification about the “Fact Checking Unit” was yet to be published and so there was no need to take up the issue urgently.

The Bombay High Court division bench—consisting of Justice Neela K Gokhale and Justice Gautam S Patel—has instructed the central government to respond to Kamra’s plea by 19 April, with the next date of hearing set for 21 April.

Clarification

ASG submitted that there would be a separate notification for the 'Fact Checking Unit' therefore there was no urgency.

Justice GS Patel said that when it comes to freedom of speech they would consider everything as urgent. #BombayHighCourt #KunalKamra

— Live Law (@LiveLawIndia) April 11, 2023