'Important Issue' : Supreme Court Agrees To Hear Union's Challenge To Bombay HC Quashing IT Rules On 'Fact Check Unit'
The Supreme Court on Tuesday agreed to hear the Union Government's petitions challenging the Bombay High Court's September 2024 judgment which struck down the provisions in the Information Technology Rules which empowered the Central Government to establish Fact Check Units (FCU).
The Court however turned down the request of Solicitor General of India Tushar Mehta to stay the High Court's judgment.
As per the 2023 amendment to the IT Rules, the social media intermediaries will lose the 'safe harbour' protection if they fail to take down the content which has been flagged as fake by the Centre's Fact Check Unit (FCU).
The bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice R Mahadevan observed that the issue was of "paramount importance" and the Supreme Court would lay down the law regarding this.
The High Court passed the judgment in petitions filed by satirist Kunal Kamra, Editors Guild of India,News Broadcasters and Digital Association, Association of Indian Magazines etc.
Before the Supreme Court, Senior Advocate Arvind Datar, appearing for the respondents, pointed out that the Centre's petition has several days of delay in filig and in re-filing, since the High Court judgment is of September 2024.
Datar also submitted that in view of the new 2025 IT Rules notified by the Government recently, the FCU was actually redundant.
The Chief Justice of India however refused to accept objections on the ground of delay, saying that the Court would like to examine the matter on merits. CJI also expressed the need to have tighter regulations for social media.
"Look at the way some of these platforms are behaving... how dangerous are these...such fake news can damage reputation of the institution as well. Clear demarcated guidelines is needed," CJI said.
CJI said that even the army and police are not spared from fake news.
When the bench agreed to issue notice on the Union's petition, Solicitor General requested for a stay of the High Court's judgment. "No, not at this stage. We will decide the main matter itself," CJI Surya Kant said.
Before the High Court
In January 2024, a division bench of Justice Gautam Patel and Justice Dr Neela Gokhale delivered a split verdict, with the former striking down the rules and the latter upholding it with some minor reading down.
The matter was then referred to a third judge, Justice AS Chandurkar, who agreed with Jsutice Patel's view.
"I am of the opinion that the amendments are violative of Article 14 and Article 19 of the Constitution of India," Justice Atul Chandurkar said. Justice Chandurkar said the amendments also violate Article 21 and do not satisfy the "test of proportionality".
The petitions were filed by satirist Kunal Kamra, Editors Guild of India, News Broadcasters and Digital Association, Association of Indian Magazines etc.
In his judgment, Justice Patel held that the proposed FCUs under the 2023 amendment to the IT Rules 2021 directly infringed fundamental rights under Article 19(1)(g) due to the differential treatment between online and print content. Article 19( 1)(g) of Constitution of India deals with freedom to practice one's profession or business and Article 19 (6) enumerates the nature of restriction that can be imposed.
Justice Gokhale on the other hand opined that the Rule was not unconstitutional. She held that the apprehension by the petitioner that the FCU will be a biased body consisting of persons picked by the government and acting on its behest was 'unfounded.' She elucidated that there was no 'restriction on free speech' nor do the amendments suggest of any penal consequences to be faced by a user.
Following the split verdict, the Chief Justice of Bombay High Court had in February appointed Justice Chandurkar as the 'tie-breaker' judge to hear the matter and give a final opinion on the petitions.
Social media intermediaries like 'X', 'Instagram' and 'Facebook.' would either have to take down the content or add a disclaimer once the government's FCU identifies the content on their platform, the amended rules mandate.
The petitioners claimed the two Rules are ultra vires to Sections 79 which safeguards intermediaries from action against third-party content and Section 87(2)(z) and (zg) of the IT Act 2000. Further they violate fundamental rights granting citizen 'equal protection under the law' under Article 14 & freedom of speech under Articles 19(1)(a) & 19(1)(g) of the Constitution of India, it was contended.
In his plea, Kunal Kamra stated that he is a political satirist who relies on social media platforms to share his content and the Rules could lead to arbitrary censorship of his content as it could be blocked, taken down, or his social media accounts could be suspended or deactivated.
Case : Union of India v Kunal Kamra and others. | Diary No. 60880-2024 and connected cases.