Supreme Court Stays Notification Of PIB Fact Check Unit Under IT Rules, 2023 Until Final Adjudication By Bombay HC

The Supreme Court heard the SLP against the order of the third judge of the Bombay High Court after the split opinion of the Division Bench and the consequential order of the Division Bench refusing interim relief in the pleas challenging the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023, which authorizes the Central Government to establish a Fact Check Unit (FCU).

The Bench of Chief Justice DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra without expressing opinion on the merits of the case, observed, “Since all the issues await the adjudication, we are desisting from expressing an opinion on the merits which may ultimately have the impact of foreclosing a full and fair consideration by the third Learned Judge of the High Court. However, we are clearly of the view that even apart from the statement which was made on behalf of the Union Government on 27th April 2023, there is more than a prima facie case which exists for staying the operation of Rule 3(1)(b)(v) pending the disposal of the proceedings before the High Court. However, we are clearly of the view that the Notification dated 20^th March 2024, issued by the Union Government after the rejection of the application for interim relief, would need to be stayed".

Senior Advocate Darius Khambata appeared on behalf of the comedian Kunal Kamra and submitted that there are major problems with the FCU mechanism as the rules make the Government the arbiter of truth regarding the facts relating to itself.

He submitted “What is interesting is that they have notified the Press Information Bureau of the Ministry of Information and Broadcasting as the FCU. This is the ultimate irony as the Press Information Bureau was the Bureau which sought to put out accurate information about the government and correct any false information that was floating around, which is the way to go in a democracy…You have made the Press Information Bureau as Fact Check Unit which can issue directions to the intermediary who under the pain of losing immunity has to take it down".

Khambata further submitted “What about plain, basic and hardcore facts? Why is that excluded? The facts may pertain to the number of COVID deaths, it may pertain to the economic impact of demonetisation and a series of events. The public has a right to know especially in the month leading to the Elections. It is a critical time. There is no remedy. Under these Rules, if the intermediary takes it down, the user cannot challenge the decision. There is a gross violation of natural justice…The deed will be done and there will be no remedy.”

The stand-up comedian Kunal Kamra and the Editors Guild of India, inter alia, challenged these Rules before the High Court of Bombay. In the aforesaid writ petitions the validity of Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (for short, the Rules of 2021) as amended by Rule 3(i)(II)(A) and (C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 (for short, the Amendment Rules of 2023) had been challenged.

Advocate Shadan Farasat made submissions as regards the effect of the notification on the core of Article 19(1)(a) of the Constitution.

He submitted “The Union has tried to restrict by saying it is only the business of the Government…The very core of (Article) 19(1)(a) is the right to speak against the state the whole origin of free speech… is in the context of the state trying to restrict speech about itself. So what this rule attacks, although it is a small rule seemingly innocuous, is the very core of Article 19(1)(a) that is the Government's functioning. So that is not a restriction, that is attack on the core of Article 19(1)(a) which is protected speech.

Solicitor General Tushar Mehta submitted that “ My argument before the learned Judge was that at the behest of few individuals, it would not be proper to deprive the rest of the nation of knowing the truth. Article 19(1)(a) is always the populist argument to take.”

In a split verdict of the High Court of Bombay, Justice G.S. Patel struck down the amendment as made in 2023 to Rule 3(1)(b) (v) of the Rules of 2021 and proceeded to allow the writ petitions whereas Justice Dr. Neela Gokhale held that impugned Rule was valid and proceeded to dismiss the writ petitions. The matter was then referred to Justice A.S. Chandurkar, who refused to stay the amendment and opined that no case had been made out to direct that the statement made on behalf of the non-applicants that the FCU would not be notified be continued during the pendency of the present proceedings as an order of the Court.

Cause Title: Editors Guild of India vs Union of India (SLP (C) No. 6717-6719/2024) and Kunal Kamra vs Union of India (SLP(C) No. 6871-6873/2024)