New Delhi: In a significant development, the Supreme Court on Thursday stayed the Central government’s decision to establish a fact-checking unit under the Press Information Bureau (PIB). The unit, which was set up to identify false news about the Union government, had been notified on March 20 under the Information Technology Rules, 2021, by the Ministry of Electronics and IT. The move had sparked concerns among civil society groups and media outlets over potential misuse for censorship.
The Supreme Court bench, headed by Chief Justice D Y Chandrachud, reversed the Bombay High Court’s March 11 order that had refused an interim stay on the establishment of the Fact-Checking Unit (FCU) under the amended IT Rules. The bench clarified that the questions before the high court involve fundamental issues related to Article 19(1)(a) of the Constitution. The stay will remain in place until the Bombay High Court delivers a final verdict on the challenge to the IT Amendment Rules, 2023.
The Supreme Court was hearing an appeal filed by stand-up comedian Kunal Kamra and the Editors Guild of India, contesting the Bombay High Court’s order. Senior advocate Darius Khambata, representing Kamra, argued that a fact-checking unit solely for the Union government is arbitrary and would mean that only the Central government’s narrative would be allowed. He voiced concern that the fact-checking unit could become a tool for the Union of India to manipulate the information disseminated to voters, particularly with the upcoming general elections.
Advocate Shadan Farasat, representing the Editor’s Guild, argued that a government-controlled fact-checking unit infringes upon the fundamental right of free speech and expression under Article 19(1)(a) of the Constitution. Solicitor General Tushar Mehta, representing the Centre, countered that the fact-checking unit would only flag false news related to government affairs to intermediaries, with the aim of preventing “public havoc and hysteria”.
The FCU is intended to serve as the central agency to address or alert about all false news or misinformation related to the Central government. The notification was issued shortly after the Bombay High Court declined to prevent the Centre from notifying the unit. The high court had earlier refused to grant an interim stay on the establishment of an FCU under the recently amended IT Rules to identify false content on social media against the government.
The petitions against the IT Rules were referred to Justice A S Chandurkar after a division bench of Justices Gautam Patel and Neela Gokhale delivered a split verdict in January. While
Justice Patel deemed the rules unconstitutional, Justice Gokhale upheld them and dismissed the petitions.
On April 6, 2023, the Union government introduced certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including a provision for an FCU to flag false, misleading online content related to the government.
Under the IT Rules, if the FCU identifies or is informed about any posts that are false and contain misleading facts about the government’s business, it would flag the same to social media intermediaries. Once such a post is flagged, the intermediary has the option of either removing the post or placing a disclaimer on it. If the latter option is chosen, the intermediary loses its safe harbour and immunity and becomes liable for legal action.