Supreme Court Stays Centre's Notification Of 'Fact Check Unit' Under IT Rules Till Final Decision By Bombay HC

The Supreme Court on Thursday (March 21) stayed the Union's notification of the Fact-Check Unit (FCU) under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 (IT Amendment Rules 2023). The stay shall operate till the Bombay High Court finally decides the challenges to the IT Rules amendment 2023.Yesterday, the Ministry of Electronics and Information Technology notified the Press Information Bureau as the FCU. Any information posted in social media in relation to the business of the Union Government, which has been flagged as fake or false by the FCU, has to be taken down by the social media intermediaries, failing which they will lose the 'safe harbour' immunity against legal proceedings arising out of such information posted.The Supreme Court, without expressing the merits of the pending challenge to the Rules before the Bombay High Court, was on the view that there exist prima facie grounds for staying the notification dated March 20, which makes the impugned Rules operational. The Supreme Court has set aside the March 11 order of the Bombay High Court refusing to stay the implementation of the Rules and the consequential order allowing the Centre to notify the FCU. The Court observed that the challenge to the rules raises "serious constitutional questions". "The impact of Rule 3(1)(b)(v), as amended by in 2023, on the fundamental right to freedom of speech and expression would fall for analysis by the High Court," the Court observed.A bench of Chief Justices DY Chandrachud, Justices JB Pardiwala, and Manoj Misra was hearing the Special Leave Petitions filed by Kunal Kamra, Editors Guild of India and Association of Indian Magazines challenging the refusal of the Bombay High Court to stay the implementation of the IT Rules 2023.Petitioners' argumentsAppearing on behalf of the comedian Mr Kunal Kamra, Senior Advocate Darius Khambata submitted : (1) A FCU only for the Union Government and not for others is arbitrary; (2) FCU will mean that only the Government's version will be allowed; (3) The elections are round the corner, the FCU would become a tool for the Union to control what information goes out to the voters. " Why is the FCU is only for the Central Govt? Why isn't there some independent body for everybody and not jut for the Central Govt..,If the objective is to prevent fake news, then everybody is affected by fake news. It affects individuals more than govt. 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." Mr Khambata underscored that the main problem of the FCU mechanism was letting the Central Government control the information to be consumed by the public. In doing so, the Union becomes a judge in its own case. " The rules make Central Govt the arbiter of truth regarding facts relating to itself."On The Notifying of FCU & Pending Decision Before The Bombay HC The Bench was further informed that the FCU was "hastily" notified yesterday itself, emphasizing that the same wasn't done for one entire year. He pointed out that the Rules came into force on April 6, 2023. The petitions were filed in April itself and the Solicitor General agreed that the FCU would not be notified until the High Court delivered a final judgment. Mr Khambata submitted that the Press Information Bureau (PIB) was noticed as the FCU, terming it to be 'Ironic' FCU was notified yesterday. Interestingly, the Press Information Bureau was notified as the FCU. It is ironic.Mr Khambata contended that PIB's notional role is to give objective and credible information about the government. However, now PIB is required to direct the intermediaries to take down 'false' content relating to the Centre. It was further highlighted that the users or consumers of such intermediaries do not have any remedy to challenge such a takedown of content. Challenging these rules, stand-up comedian Kunal Kamra and the Editors Guild of India approached the Bombay High Court, which delivered a split verdict. While Justice GS Patel proposed to strike down the amendment, Justice Neela Gokhale ruled in favour of the rules subject to certain safeguards. The third judge to whom the matter was referred, Justice AS Chandurkar, refused to stay the amendment. During the pendency of the petition before the high court, the Centre had agreed to not notify the FCU. However, last week, with the third judge refusing to stay the amendment, the Bombay High Court allowed the Centre to proceed with the notification of the fact-checking unit. The senior counsel argued that there seems no rationale in notifying the FCU in haste, considering that the third judge's decision on the slipt verdict is still awaited. "For 9-10 months this position has continued. Why the haste(in notifying the FCU)? The third judge is hearing from April 15. We can wait for the judgment."The senior counsel argued that the intermediaries are only...

Supreme Court Stays Centre's Notification Of 'Fact Check Unit' Under IT Rules Till Final Decision By Bombay HC

Anmol Kaur Bawa

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