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High court hearing on FCU’s validity to start from April 15

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NEW DELHI: Setting aside Bombay HC’s order that had refused to grant an interim stay on setting up a

fact check unit

(FCU) to identify fake and false content on digital media about Centre,

Supreme Court

on Thursday said, “Impact of the rule on fundamental right of speech and expression will call for an analysis by high court.”
HC’s third judge, to whom petitions were assigned after a split verdict from division bench, is scheduled to commence hearing on FCU’s validity from April 15.Solicitor general Tushar Mehta repeatedly pleaded for at least a day’s time to respond to appeals filed by Kunal Kamra and Editors Guild on ground that he has not been provided copies of the petitions and that he would like to give a proper response based on official documents about FCU.

Before brushing aside SG’s plea about being handicapped to respond in absence of papers, SC bench of CJI D Y Chandrachud and Justices J B Pardiwala and Manoj Misra gave a detailed hearing to senior advocate Darius Khambata and lawyer Shadan Farasat who dug in with their argument that FCU would erase

freedom of speech

as it would ask intermediaries to take down any post that was critical of govt.It is the most inappropriate time, given that elections are round the corner, to notify FCU under PIB, which is the mouthpiece of Union govt, they said. Khambata said intermediaries are not ready to challenge rules for fear of losing “safe harbour” status under Information and Technology Rules.
SG kept repeating his plea for a day’s time to enable him to prepare a formal response instead of talking from memory of what he had argued before Bombay HC, where a division bench had given a split verdict. The matter has now been assigned to a third judge to determine which opinion of the two judges in the division bench was correct – one striking down Rule 3(1)(b)(v) and the other upholding it.

CJI said, “At one stage, we were of the view to bring the entire matter here. But since the third judge is hearing it from April 15, we decided that the matter be heard by HC.”
In its order, the bench said, “We are of the considered view that the challenge which is pending before Bombay high court implicates core values impinging on freedom of speech which is protected by Article 19(1)(a) of the Constitution. Since all the issues await adjudication of HC, we are desisting from expressing an opinion on the merits which may ultimately have the impact of foreclosing a full and fair consideration by the third judge of high court.”

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