Supreme Court stays Centre’s notification on fact-checking unit

The amended IT rules, which came into effect in April 2023, empowers the fact checking unit to monitor content on social media and flag alleged pieces of misinformation concerning the business of the Centre.

The Supreme Court on Thursday stayed the operation of the Centre’s March 20 notification regarding the Press Information Bureau’s Fact Checking Unit (FCU) until the Bombay High Court takes a final decision on petitions challenging the 2023 amendments to the Information Technology Rules.

A three-judge bench presided by Chief Justice of India D Y Chandrachud noted that the Centre had assured the HC on April 27, 2023 that the FCU will not be notified till the petitions challenging Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 (IT Amendment Rules, 2023 are decided by the HC.

The bench, also comprising Justices J B Pardiwala and Manoj Misra, said it was not making any comments on merits as the matter is pending before the HC.

“We are of the considered view that the challenge which is pending before HC implicates core values impinging on the freedom of speech, which is protected by Article 19. Since all the issues await the adjudication of the HC, we are desisting from expressing any opinion on merits which may ultimately have the impact of foreclosing a full and fair consideration by the third judge of the High Court,” it said.

The SC added, “However we are clearly of the view that the notification dated March 20, 2024, which has been issued by the Union Government after the rejection of the application for interim relief, would need to be stayed.”

It said that “the challenges to Rule 3(1)(b)(v) involves serious constitutional questions. The impact of the Rule on the fundamental right to the freedom of speech and expression would call for analysis by the HC”.

“We accordingly set aside the opinion of the third judge declining interim relief dated March 11, 2024 and direct that pending the disposal of the proceeding before the HC, the notification of the… Ministry of Electronics and Information Technology dated March 20, 2024 shall remain stayed,” the SC ruled.

On March 11, the HC had rejected applications seeking an interim stay on notifying the FCU till the court decides on multiple petitions challenging the validity of the amended rules.

The petitioners, including stand-up comedian Kunal Kamra, Editors Guild of India, News Broadcasters and Digital Association and Association of Indian Magazines, have challenged the rules terming them arbitrary, unconstitutional, and in violation of fundamental rights.

A split verdict was delivered by the division bench of Justices Gautam Patel and Neela Gokhale in January this year. While Justice Patel agreed with the petitioners’ contentions and struck down the amendment, Justice Gokhale upheld the government’s side. It was then referred to a third judge.

In April last year, the Ministry of Electronics and Information Technology (MEiTY) promulgated the 2023 Rules, which further amended the Information Technology Rules, 2021.

Under the new Rules, if the FCU comes across or is informed about any posts that are “fake”, “false” or contain “misleading” facts pertaining to the business of the government, it would flag it to the social media intermediaries.

The online intermediaries would then have to take down such content if they wanted to retain their “safe harbour” (legal immunity against third-party content).