Fact Check Unit: A Prelude to government censorship?

Recently, the Supreme Court of India, stayed the Fact Check Unit notification issued by the Ministry of Electronics and Information Technology (MeitY) on March 20, 2024. The bench of Hon’ble Chief Justice DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra held that the stay shall operate till the Bombay High Court finally decides the challenges to the IT Rules amendment 2023.

This comes after the MeitY had notified the Press Information Bureau as the Fact Check Unit on 20^th March, 2024. The notification of 20^th March, 2024 was occasioned after the third judge Justice Chandurkar hearing the challenge to the rules had refused to grant interim stay to the implementation of the Rules had consequently allowed the Centre to notify the FCU.

The Supreme Court, without expressing the merits of the pending challenge to the Rules before the Bombay High Court, was on the view that there exist prima facie grounds for staying the notification dated March 20, which makes the impugned Rules operational since the challenge to the rules raises “serious constitutional questions”. The Court further observed that the “The impact of Rule 3(1)(b)(v), as amended by in 2023, on the fundamental right to freedom of speech and expression would fall for analysis by the High Court”.

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 final verdict of the Bombay High Court case will be delivered following the concluding remarks of the third referral judge Justice A S Chandurkar, likely to be made on April 15, 2024.

Background

On 6^th April, 2023, the Ministry Of Electronics And Information Technology in exercise of powers conferred by sub-section (1) and clauses (z) and (zg) of sub-section (2) of section 87 of the Information Technology Act, 2000 notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.

The amendment to The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 notified in April 2023 majorly did two things: firstly, they brought in a legal framework for the online gaming eco-system and secondly, more crucially, introduced a legal mechanism for the government to fact-check online content pertaining to “government business”.

Ever since the coming into effect of these rules, they have been a question of debate and controversy, specifically the Rule 3(1)(b)(v) of the IT Rules 2021 or commonly referred to as the “FACT CHECK UNIT RULE”.

The Rule mandated intermediaries such as social media platforms “not to publish, share or host fake, false or misleading information in respect of any business of the Central Government”.

These amendments sparked worries that the FCU would effectively grant the government unilateral authority to determine the truth regarding its own affairs making it the “sole arbiter of truth”.

Therefore, in furtherance, the critics referred to this rule as draconian in nature and being violative of Articles 14, 19(1)(a) and (g) and 21 of the Constitution of India and Section 79 and Section 87(2)(z) and (zg) of the Information Technology Act, 2000 (“IT Act”).

While a section of the society categorically welcomed the formulation of the Fact check unit due to widespread prevalent fake news across sections in different forms of media- particularly the Social Media.

However, due to the solemn concerns regarding the government becoming the unilateral authority to determine the truth regarding its own affairs, the said rule 3(1)(b)(v) of the IT Rules 2021 was challenged before the Bombay High Court through a batch of Writ Petitions filed under Article 226 of the Constitution of India.

The Parties

The amendment faced its first legal challenge with political satirist and stand-up comedian Kunal Kamra moving to court. He was subsequently joined by Editors Guild of India, News Broadcasters & Digital Association, Bennett, Coleman & Co. Ltd., TV 18 Broadcast Ltd. and finally the Association of India Magazines.

Issues raised before the High Court

The amendment to Rule 3(1)(b)(v) of the IT Rules 2021 essentially expanded the general term “fake news” to include fake news involving government business.

This provision, when enacted in 2021, referred to “…knowingly and intentionally communicates any information which is patently false or misleading in nature but may reasonably be perceived as a fact”.[i]

By the 2023 amendment, after the word “nature”, the words [“or, in respect of any business of the Central Government, is identified as fake or false or misleading by such fact check unit of the Central Government as the Ministry may, by notification published in the Official Gazette, specify”] were inserted.

A bare comparison of the two verbatims is as under:

– The 2021 Rules.

Vs.

 – The 2023 Amendment.

The thrust of the challenge of the impugned Rule raised by the Petitioners was that this amendment would construe a ‘chilling effect’ upon the freedom of speech and expression of the Petitioners, guaranteed under Part III of the Constitution of India. The Petitioners were aggrieved by the impugned Rule vesting authority in a Fact Check Unit (“FCU”) to be notified by the Government to identify the veracity or otherwise of ‘information’, thereby alleging the Government to be the sole arbiter of truth in respect of any business related to itself.

Additionally, Section 69 of the IT Act empowers the government to issue directions to block public access to any information through any computer resource. The Rules were framed essentially in exercise of this power. However, no rule-making or legislation-making powers can be exercised by Parliament in a manner that is contrary to Part III of the Constitution, which deals with fundamental rights.

THE SPLIT VERDICT

The Bombay High Court examined if these Rules were violative of free speech, and were arbitrary in nature. The bench of Justices G S Patel and Neela Gokhale, presided over various hearing in this case and finally on 31^st January, 2024 delivered split verdicts.

With Justice GS Patel holding the 2023 amendment to Rule 3(1)(b)(v) to be ultra vires and intending to strike it down and Justice Dr. Neela Gokhle upholding the constitutional validity of the said rule.

Verdict of Justice Patel

Justice GS Patel in his judgement held that the “state cannot coercively classify speech as true or false and compel the non-publication of the latter. That is nothing but censorship.”  In very strong words, he held that the Central Government has anointed itself as the sole arbiter of what is or what is not ‘fake, false or misleading’. It, and it alone, will decide this, including the entirely ambiguous term ‘misleading’. He further held that the said rules have forced the intermediaries to follow their commands of taking down content or else, the said intermediary loses the safe harbour protection. He additionally pointed out that the same is without any controlling guidelines as it does not even provide for an opportunity for the propounder of any information to defend its correctness, and the government becomes a judge in its own cause (hence another dimension of violation of principles of natural justice).

Verdict of Justice Dr. Neela Gokhle

Justice Gokhle in her judgement held that that the “right of citizens to participate in the representative and participative 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”. She further held that Section 79 (3)(b) itself is read down in the Shreya Singhal case to include only those matters relatable to the restrictions in Article 19(2). As per her, the words ‘reasonable efforts’[ii] (by the intermediary) do not only mean ‘take down’ as the Rule does not pre-empt the option of issuance of a ‘disclaimer’. Further, she goes on to say that the charter of the FCU, the extent of its authority, the manner of its functioning is yet unknown and In case of any actual bias exhibited by the FCU, recourse to the courts of law is always open to the aggrieved person. Thus, a challenge to a potential abuse by the FCU on the basis of an apprehension is not maintainable and to that extent it is pre-mature.

AFTER EFFECTS OF THE RULING AND ASSIGNMENT TO THIRD JUDGE

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 S Chandurkar as the third judge in the case.

At the time of pronouncement of the Divison Bench’s order, the question arose whether Union of India would continue its undertaking initially made to the court about not notifying the FCU. The court asked for this question to be decided by the third judge who would be notified to hear the matter.

Interim Stay

Therefore, before the beginning of the substantial hearing to decide the matter on merits, Justice Chandurkar had to deliver an interim opinion to decide if the Rules were to be stayed.

Justice Chandurkar on 11^th March, 2024 opined that the balance of convenience favours the Union, considering the government’s submission about not using the FCU to censor political opinions, satire, and comedy. Additionally, he said, any action taken after notifying the FCU would be subject to the final outcome of the petition and wouldn’t cause irreversible damage.

Subsequently, the reconstituted bench of Justices GS Patel and Neela Gokhale pronounced the interim order on 13^th March, 2024 after the third judge, Justice Chandurkar, opined that no case was made out for interim relief until he decides the clutch of petitions.

SLP BEFORE THE SUPREME COURT

Aggrieved by the majority order of the Bombay High Court to stay the effect of the implementation of the Rules, the Petitioners moved to the Supreme Court challenging the refusal of the Bombay High Court to grant interim relief.

MeitY notification

However, just a day before the SC was to hear the appeal against rejection of stay, the Centre notified the 2023 Rules in the official gazette. With Lok Sabha elections less than a month away, the Rules are crucial for the government’s engagement with news about “government business”.

Before the hearing, MeitY on 20^th March vide Gazette Notification and powers conferred under Rule 3(1)(b)(v) of IT Amendment rules, notified the Fact Check Unit under the Press Information Bureau of the Ministry of Information and Broadcasting as the fact check unit of the Central Government for the purposes of the said sub-clause, in respect of any business of the Central Government.

The timing of the said notification was questionable and raised all the more potent concerns regarding the said rules. As an effect this made the hearing before the Supreme Court all the more imperative and pressing.

Interestingly, the Rules came into force on April 6, 2023 and the petitions were filed in April itself and the Solicitor General agreed that the FCU would not be notified until the High Court delivered a final judgment.

THE VERDICT OF THE SUPREME COURT

The bench of Chief Justices DY Chandrachud, Justices JB Pardiwala, and Manoj Misra set aside the March 11 and 13 order of the Bombay High Court refusing to stay the implementation of the Rules and the consequential order allowing the Centre to notify the FCU till the Bombay High Court finally decides the challenges to the IT Rules amendment 2023.

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.

Staying of the law

As mentioned above, the Hon’ble CJI observed that the bench would not go into the merits of the case but at the same time also observed (emphasis) the challenge to the rules raises “serious constitutional questions” and the impact of Rule 3(1)(b)(v), as amended by in 2023, on the fundamental right to freedom of speech and expression would fall for analysis by the High Court.

Definitely, the timing of the MeitY notification of PIB as the FCU comes under a cloud of suspicion given that the SG had given an undertaking that the government would not notify till the time the HC comes to the final decision and also consequent challenge of the HC order before the SC. Additionally, with the election season coming to its final and consequent climax.

However, another pertinent question which comes to the fore is, whether the Supreme Court can stay a law before it can be ruled unconstitutional?

A law enacted by Parliament carries the presumption of being constitutional. Although subject to judicial review, the burden lies on the petitioners to demonstrate its unconstitutionality. In an attempt of balancing judicial review against Parliament’s legislative authority, courts typically refrain from suspending laws pending a ruling on their constitutionality.

However, two significant factors are relevant in this instance. Firstly, the Rules in question do not constitute legislative acts; rather, they are formulated by the Ministry under powers delegated by Parliament, lacking direct parliamentary endorsement. Hence, this variation affects the presumption of constitutionality.

Secondly, the Supreme Court has previously indicated that an interim stay can only be granted upon a prima facie determination of unconstitutionality.

The CJI’s remarks imply that Justice Patel’s extensive 148-page decision, despite being part of a divided verdict, constitutes such a determination. Again, however, the key which remains is that the said decision of Justice Patel is a part of a split verdict and that even the 96 page decision of Justice Dr Neela Gokhle gives a finding of prima facie constitutionality.

In the past though the Supreme Court has temporarily halted the implementation of laws. In 2020, the Supreme Court temporarily ceased the implementation of a Maharashtra law providing reservations for Marathas in employment and education through an interim order. Similarly, in 2021, through an interim order, the Supreme Court also temporarily suspended the farm laws, which were ultimately repealed.

In any case, though the three judge bench led by the CJI categorically specified and restricted themselves from commenting over the merits of the issue at hand, however, it will be interesting to see whether the interim stay and observations of the bench such as the rules raise “serious constitutional questions” will have any consequential effect over the final verdict of Justice Atul S Chandurkar.

End notes:

[i] Rule, 3(1)(b)(vi), the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

[ii] Rule 3b, The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023

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