SC stays Union govt’s notification to set up fact-check unit under PIB

The Supreme Court on Thursday, 21 March, stayed the Union government’s notification establishing a fact-check unit (FCU) under the Press Information Bureau (PIB) unit till the Bombay High Court takes a final decision on petitions challenging the 2023 amendment to the IT Rules.

The Ministry of Electronics and Information Technology notification on 20 March under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 (IT Amendment Rules 2023) was set up reportedly to act as the designated body to flag misinformation against the creation and dissemination of fake news or misinformation regarding the “business” of the Centre.

A bench headed by Chief Justice of India DY Chandrachud, comprising justices JB Pardiwala and Manoj Misra, set aside the 11 March order of the Bombay High Court which had refused to grant an interim stay on setting up the FCU under the amended IT Rules to identify fake and false content on social media about the Union government.

"We are of the considered view that questions before the HC deal with core questions on Article 19(1)(a) of the Constitution. 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," said the bench.

The Supreme Court, without going into the merits of the pending challenge on the rules before the Bombay High Court by stand-up comedian Kunal Kamra and Editors Guild of India, stated that there exist prima facie grounds for staying the notification dated 20 March, which makes the impugned Rules operational.

The bench was hearing 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.

Senior advocate Darius Khambata, who was appearing for Kamra, stated that the absence of an independent fact-check unit for everybody and present only for the Union government is arbitrary, FCU cannot be dependent on the Union government to decide what is true or false and the FCU is likely to become a tool for the Union to control what information goes out to the voters with the elections around the corner.

Khambata underscored that the Union government was becoming a judge in its own case. He pointed out that the PIB's 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.

Appearing for the Editors Guild, advocate Shadan Farasat stated that a government-controlled FCU attacks the fundamental right of free speech and expression under Article 19(1)(a).

While appearing for the Union government, solicitor general Tushar Mehta claimed that the FCU would only flag fake news regarding government business to the intermediaries. He stated that these rules were the 'least restrictive' measures adopted and the FCU would only cross-check and inform the intermediaries of the false information from official records.

The fact check unit had in the past disputed news reporting. Last week, the PIB Fact Check Unit declared that an Al Jazeera article calling the Citizenship (Amendment) Act, 2019 “anti-Muslim,” was “fake”. The fact check then went on to present two rejoinders to claims that the Al Jazeera article was never made in the first place.