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FACT CHECK UNIT

The Supreme Court on Thursday (March 21) stayed the operation of the amended Information Technology (IT) Rules, which empowered the government to identify “fake news” on social media platforms through a “Fact Check Unit” (FCU).

The Union Electronics and IT Ministry had notified the FCU on March 20, as a statutory body under the Press Information Bureau with powers to flag what it believes is false information related to the central government and its agencies on social media sites.

THE BACKGROUND

The amendment to the IT Rules, 2021, which allowed the Ministry to appoint the FCU, were notified in April 2023. On January 31 this year, a two-judge Bench of the HC gave a split verdict on a challenge to the Rules.

A third judge who was assigned to give an opinion on the split verdict is yet to give his final decision. However, on March 11, the third judge declined to stay the setting up of the FCU — and on March 13, the division Bench said by a 2-1 majority that it would not stay the notification of the FCU.

THE AMENDED RULES

The amendment to The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 notified in April 2023 did two things:

  • They brought in a legal framework for the online gaming ecosystem and
  • It introduced a legal mechanism for the government to fact-check online content pertaining to “government business”.

Among other things, the Rules made it obligatory on intermediaries like social media platforms “to not to publish, share or host fake, false or misleading information in respect of any business of the Central Government”.

The changes raised concern that the FCU will make the government the “sole arbiter of truth” in respect of any business related to itself.

THE CHALLENGE IN THE HC

The petitioners, including standup comedian Kunal Kamra; Association of Indian Magazines, Editors Guild of India, news channel TV18 Broadcast Limited, and Bennett, Coleman & Company Limited challenged Rule 3(1)(b)(v) of the IT Rules 2021.

ON WHAT GROUNDS WERE THESE CHALLENGED?

On being violative of:

  • Article 14,
  • Article 19(1)(a) and (g),
  • Article 21 of the Constitution, and
  • Section 79 and the Information Technology Act, 2000 (IT Act).

WHAT DID THE JUDGES IN HC RULE?

On 31 January, a division Bench comprising Justices G S Patel and Neela Gokhale delivered a split verdict in the case.

  • Justice Patel struck down the amended rules: the “state cannot coercively classify speech as true or false and compel the non-publication of the latter. That is nothing but censorship.”
  • Justice Gokhale upheld them: Justice Gokhale said that the “right of citizens to participate in the representative and participatory democracy of the county is meaningless unless they have access to authentic information and are not misled by misinformation, information which is patently untrue, fake, false, or misleading, knowingly communicated with malicious intent”.

THE AFTERMATH OF A SPLIT VERDICT

Since a split verdict was delivered, as per rules of the Bombay High Court, the case had to be heard afresh by a third judge whose opinion would create a majority and bring about a 2-1 verdict. On February 7, Bombay HC Chief Justice Devendra Kumar Upadhyaya assigned Justice Atul D Chandurkar as the third judge in the case.

However, before beginning a substantial hearing, Justice Chandurkar had to decide if the Rules were to be stayed. After the central government told the court that the Rules were yet to be notified in the official gazette, Justice Chandurkar refused to grant an interim stay on the amended rules.

THE CASE IN SC

A Bench headed by Chief Justice of India (CJI) D Y Chandrachud has stayed the amended Rules until the Bombay High Court reaches a final conclusion.

Dictating a short order, the CJI observed that the issue before the court is whether the status quo should be allowed to change when one judge (Justice Patel) has completely struck down the notification.

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