By Joseph Maliakan
NEW DELHI—Upholding the fundamental right to freedom of speech and expression and nullifying the Union government’s attempt to censor news and views on social media sites it considers false , the Supreme Court on Thursday 21 March stayed operation the Union government’s 20 March notification regarding the Press Information Bureau’s Fact Checking Unit ( FCU ) .
The Supreme Court also set aside the 11 March order of the Bombay High Court which had refused to grant an interim stay on setting up of the FCU under the amended I T rules to identify fake and false content on social media about the Union government and its agencies.
The stay will remain until the Bombay High Court takes a final decision on petitions challenging the 2023 amendments to the Information Technology rules.
A three judge bench of the Supreme Court presided by the Chief Justice of India D. Y. Chandrachud in its order said: ” We are of the considered view that the challenge pending before the High Court implicates core values impinging on the freedom of speech , which is protected by Article 19 (1 ) (a ). Since all the issues await the adjudication of the H C , 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.We are of the view that the notification dated 20 March 2024 , after rejection of application of interim relief , needs to be stayed.”
The SC Bench also comprising Justices JB Pardiwala and Manoj Misra said : “The challenge to the validity of 3 ( 1 ) (b) (5) involves serious constitutional question and the impact of the rule on free speech and expression would need to be analysed by the High Court.”
The notification came after the Bombay High Court declined to restrain the Union government from notifying the FCU which was to identify fake news or misinformation related to the union government . The petitions were filed by stand-up comedian Kunal Kamra, Editors Guild of India News Broadcasters and Digital Association and Association of Indian Magazines. And against the Bombay High Court order the petitioners moved the Supreme Court.
The Ministry of Electronics and Information Technology (MEITY) notified the 2023 rules in April further amending the IT Rules 2021. Under the new rules if a fact check unit comes across or is informed about any posts that are ” fake “, ” false”, or “misleading” about the union government, it will be flagged to the social media intermediaries.
The online intermediaries would then have to take down such content if they wanted to retain their “safe harbor” (legal immunity against third party content).
A split verdict was delivered by the Division Bench of the Bombay High Court comprising Justices Gautam Patel and Neela Gokhale in January 2024. While Justice Patel agreed with the contention of the petitioners and struck down the amendment to the IT rules, Justice Gokhale upheld the Union government’s stand. It was then referred to a third judge. Justice A S Chandrurkar is yet to give his final order. After he refused stay the setting up the FCU on 11 March, the division bench on 13 March with 2 : 1 majority declined to stay FCU notification, forcing the petitioners to move the Supreme Court.
In his 31 January verdict, Justice Gautam Patel had pointed out, “The sinister and insidious facet to the impugned amendment is that this new agency has far more than loud bark : it has fangs and claws , for its unilateral view of what is or is not the ‘truth’ is accompanied by a requirement of removal of what it has so determined ( to be fake, false or misleading ) ; and an intermediary can refuse it only on pain of losing statutory protector or ‘ safe harbour’ .Taken together this has what they describe as a “chlling effect” on the right to free speech and freedom of the press.”
The gazette notification by the MEITY had said, “In exercise of the powers by …the Information Technology (Intermediary Gudelines and Digital Media Ethics Code ) Rules , 2021 , the Union government hereby notified the Fact Check Unit under the Press Information Bureau of the Ministry of Information Broadcasting as the fact check unit of the Union Goverment…”
Consequently, when this unit flags a content as fake, social media platforms will have to take it down as part of their due diligence requirement under the IT rules. Even internet and telecom service providers like Jio and Airtel also will have to give such information. The new rules could adversely affect opposition parties, media personnel digital rights activists and press associations. In fact the Editors Guild of India described the rules as ‘draconian’.
In fact Justice Patel had in his order said, “It is not the business of the government to keep citizens from falling into error. It is the other way round. Governments do not select citizens. Citizens elect governments. There was not fundamental right to falsehood, fake news or deep fakes, he had pointed out.
It was unthinkable that any one entity can unilaterally identify the content to be fake, false or ‘misleading’ and the same cannot be sole preserve of the government. The argument that the government is ‘best placed to know the truth ‘ about its affairs is equally true of every citizen and every entity,” Justice Patel had said.
