Supreme Court stays Union govt’s notification on fact-checking unit

The unit is being set up under the Information Technology (IT) Rules which was amended by the BJP led Union government on April 6, 2023.
Supreme Court of India
Supreme Court of India
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The Supreme Court, on Thursday, March 21, stayed the Union government’s notification to set up a fact-checking unit (FCU) to monitor content on social media concerning the government. The Union Ministry of Electronics and Information Technology had notified the Press Information Bureau (PIB) as the FCU on March 20, and the stay will be operational until the Bombay High Court delivers its verdict on the challenges to the IT Rules amendment. The apex court cited that the plea before the Bombay HC involves questions of constitutional validity and free speech, and therefore, the application for interim relief must be stayed.

The FCU is tasked with flagging any false or fake information posted on social media concerning the business of the Union Government. Such content has to be taken down by the social media intermediaries, failing which they will lose their immunity against legal proceedings arising out of publishing such information. This is considered as a roundabout tool for the government to attack press freedom and monitor freedom of expression.

A bench comprising Chief Justice of India (CJI) DY Chandrachud and justices JB Pardiwala and Manoj Misra was hearing the petitions filed by comedian Kunal Kamra, Editors Guild of India, and Association of Indian Magazines challenging the Bombay High Court order that refused to amend the IT amendment rules, 2023, which enabled the formation of FCU.

Kunal and the Editors Guild had approached the Bombay HC challenging the amendments to the IT rules. On January 31, 2024, Justices GS Patel and Neela Gokhale of the HC delivered a split verdict with Patel striking down the amendment and Gokhale upholding it. The case was then referred to a third judge - Justice Chandurkar - who also refused to stay the amendment, on March 11. With a 2:1 split, the court allowed the Union government to form an FCU. This is the order that was challenged before the SC.

Senior Advocate Darius Khambata, who appeared for Kunal, argued that with elections around the corner, the FCU might be a tool for the Union government to control the narrative. “Elections are coming. This is the time when the public should have access to all information relating to Central Govt and not just filtered facts," the advocate said and added that the main problem regarding FCU was that only the Union government had the power to control the information available to the public. Further, Khambata said it was ironic that the Press Information Bureau (PIB), which disseminates information about the government, is notified as the FCU.

Advocate Shadan Farasat, appearing for the Editors Guild of India, argued that an FCU that is controlled by the government was an attack on the fundamental rights of free speech and expression, as guaranteed under the Article 19(1)(a). “If the Govt says this is the truth which everyone must follow, it strikes at the core of Article 19. The very core of Article 19 is the right of the citizen to speak against the State. This Rule attacks the very core of Article 19,” he said. He also said that this was the ‘worst time’ to notify the FCU, as the “the public has to determine the truth on the performance of the government in the last 5 years."

Solicitor General (SG) Tushar Mehta, appearing for the Union government, contended that the FCU only flags ‘fake news’ regarding government business to the intermediaries, like social media. He also explained that the IT rules require the intermediaries to make 'reasonable efforts' to take down a post which are deemed ‘false’ by the FCU. “If somebody criticises the Prime Minister, it will not fall within this. It will only relate to Governmental business as defined in the transaction of business rules," he said.

The Union government, in its notification on March 20, said that the FCU was set up in right of the Information Technology (Intermediary guidelines and digital media ethics code) Rules, 2021.

Stand-up comedian Kunal Kamra and others sought a stay on the notification of the FCU in the Bombay High Court. The court refused to restrain the Union government until a third judge rendered their opinion on whether the amendment regarding the FCU was unconstitutional. The petitioners have filed a plea before the Supreme Court challenging the Supreme Court order. 

It is worth noting that the Congress had opposed the new IT rules draft and accused the BJP-led Union government of muzzling the Internet and Censoring Online Content, calling it the Narendra Modi government's definition of "Fact Checking".

"Bulldozing the Press is not new for the Modi government. The popular term "Godi Media" is now ingrained in the psyche of most Indians, and now this Government wants to make it 'Godi Social Media', Congress’ media department chairman Pawan Khera had said.

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