CJI Chandrachud, led bench in Supreme Court, Today halted the establishment of Fact Check Units (FCUs) as per the 2023 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules (IT Amendment Rules 2023). Stand-up comedian Kunal Kamra’s plea contended that these units would coerce social media platforms into biased censorship of content related to the Central government.
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NEW DELHI: The Supreme Court today halted the implementation of the notification establishing Fact Check Units (FCUs) under the 2023 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules (IT Amendment Rules 2023).
According to the IT Amendment Rules of 2023, the Ministry of Electronics and Information Technology of the Central government can designate a fact-checking body, authorized to identify and label online news it deems false or fake regarding any Central government activity.
The notification for the FCU of the Press Information Bureau, overseen by the Union Information and Broadcasting Ministry, was issued recently.
Chief Justice of India (CJI) DY Chandrachud, along with Justices JB Pardiwala and Manoj Misra, concluded that the challenge to the validity of the IT Rules raises significant constitutional questions. They determined that its impact on freedom of speech and expression warrants examination by the Bombay High Court.
“We believe that the questions before the High Court pertain to fundamental issues under article 19(1)(a). Until the High Court’s adjudication, we refrain from making any decisions that might preempt analysis by another judge. We find it necessary to suspend the notification dated March 20, 2024, following the rejection of the interim relief application. The challenge to the validity of 3(1)(b)(5) involves serious constitutional questions, and the rule’s impact on freedom of speech and expression needs scrutiny by the High Court,”
-the Court decreed.
The bench presided over three petitions seeking an interim halt on the Central government’s notification regarding the formation of Fact Check Units (FCUs).
Senior Advocate Darius Khambata, representing comedian Kunal Kamra, expressed concern over intermediaries complying with FCU directives despite the safe harbor provisions under section 79 of the Information Technology Act. He remarked,
“Of course they will, why will they take that risk. It has a chilling effect on free speech! No intermediary challenged these rules! Why? Because they will protect their interests. They will happily be chilled. Justice Gokhale also said we had a case to make.”
Khambata questioned the emphasis of the rules on safeguarding the Central government’s interests, stating,
“It is a question of Caesar judging Caesar. Centre is not a separate class. If the object is to prevent fake news, everyone is affected. Individuals even more.”
He criticized the assumption underlying the rules that fake news is binary, stressing the importance of a marketplace of ideas, especially with elections approaching.
“Elections are coming, the public must have all information about the government. Not information filtered out as fake by Centre,”
-he emphasized.
Khambata highlighted the irony of the Press Information Bureau (PIB) being designated as the FCU, considering its role in disseminating accurate government information. He pointed out,
“They can now issue direction to intermediaries to take content down – ultimate irony.”
Advocate Shadan Farasat, representing the Editors Guild of India, argued that the government’s authority to determine the truth infringed upon Article 19(1)(a) of the Indian Constitution, which guarantees freedom of speech and expression. He asserted,
“The judges have proceeded on the assumption that the govt is a good boy. The critique business of the govt is why article 19(1)(a) exists. Now the fact check unit notified actually supports my argument.”
Farasat raised concerns about the timing of the FCU notification, coinciding with the model code of conduct (MCC), and its potential to monopolize the truth.
“How will investigative journalists work at all? It is through several sources in the government. Now a central authority will stamp out all other voices. It even impacts the disputed question between Centre and state. This is the worst time for this, and the hearing is on April 15,”
-he remarked.
Solicitor General Tushar Mehta highlighted the uncontrollable nature of the digital medium and its cross-border reach. He explained,
“What bothered the government is that false news of the government being flashed across intermediaries. Like there is going to be a huge COVID influx and then people start queuing up for grains, etc.”
He mentioned that under the new regulations, intermediaries are not mandated to remove violative content but are required to display a disclaimer indicating that the content has been flagged as fake by the FCU.
Explaining further, he elaborated that if a platform like Facebook disagrees with the FCU’s assessment and declines to add the disclaimer, individuals affected by the content can seek recourse through the courts, and Facebook cannot invoke safe harbor protection.
Responding to this, the Chief Justice of India (CJI) inquired whether it would be the intermediary’s responsibility to prove the veracity of content. Solicitor General (SG) Mehta affirmed, clarifying that such responsibility would be limited to government-related matters.
“If someone criticizes the prime minister, it would not fall under this,”
–he clarified.
The Court acknowledged that the final hearing before the third judge at the Bombay High Court is scheduled to commence on April 15.
Additionally, the Court noted that Justice AS Chandurkar’s March 11 order highlighted the absence of the FCU’s notification and chose not to stay the rules in that context.
Consequently, the Court concluded that the challenge to the validity of the IT Rules raises significant constitutional questions, necessitating analysis by the Bombay High Court regarding its impact on freedom of speech and expression.
The petitions were filed by stand-up comedian Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines. Kamra’s plea argues that the FCU regime would effectively compel social media platforms to engage in self-interested censorship of content concerning the Central government.
The introduction of these units, he contends, would stifle political discourse and infringe upon citizens’ right to information by granting undue authority to determine the truth of information, effectively allowing the government to be the judge in its own cause.
Following the rejection of the plea for a stay by the Bombay High Court on March 11, Kamra pursued the matter in the apex court. The IT Amendment Rules 2023 amended the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021). The validity of the IT Amendment Rules, 2023, particularly Rule 3, is already under scrutiny before the High Court through various petitions.
A division bench of the High Court, consisting of Justices GS Patel and Neela Gokhale, delivered a split verdict on January 31, necessitating a decision by a tie-breaker judge.
Meanwhile, the petitioners, including Kamra, sought a stay on the formation of FCUs until a final decision on the matter. However, the High Court declined the plea for a stay, leading to the appeals before the apex court.
CASE TITLE:
Kunal Kamra vs Union of India.
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