The Aryavarth Express
Agency(New Delhi): In a significant development just a day after notifying the Press Information Bureau (PIB) as the FCU, the apex court’s order has put the implementation of this fact-checking mechanism on hold, citing potential threats to the fundamental right of free speech and expression.
The FCU, as per the amended rules, has the power to flag any information posted on social media platforms in relation to the business of the central government as “fake or false.” Social media intermediaries would then be mandated to take down such flagged content, failing which they risk losing their legal immunity or “safe harbour” against civil or criminal proceedings arising from the posting of such information on their platforms.
The Supreme Court bench, comprising Chief Justice D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra, refrained from expressing any views on the merits of the pending challenges before the Bombay High Court. However, the bench observed that there exist prima facie grounds for staying the notification dated March 20, which made the impugned rules operational.
“The impact of Rule 3(1)(b)(v), as amended in 2023, on the fundamental right to freedom of speech and expression would fall for analysis by the High Court,” the Court noted, highlighting the grave constitutional questions raised by the petitioners challenging the rules.
The apex court’s order came in response to Special Leave Petitions filed by stand-up comedian Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines, challenging the Bombay High Court’s refusal to stay the implementation of the IT Rules 2023 amendment.
During the hearing, Senior Advocate Darius Khambata, appearing for Kunal Kamra, vehemently opposed the FCU mechanism, arguing that it would effectively enable the central government to control the information consumed by the public, making it “the arbiter of truth” regarding facts related to itself.
“Why is the FCU only for the Central Government? Why isn’t there some independent body for everybody and not just for the Central Government? If the objective is to prevent fake news, then everybody is affected by fake news. It affects individuals more than the government. Elections are coming. This is the time when the public should have access to all information relating to the Central Government and not just filtered facts,” Khambata contended.
Echoing similar concerns, Advocate Shadan Farasat, representing the Editors Guild of India, stressed that a government-controlled FCU strikes at the core of the fundamental right to free speech and expression under Article 19(1)(a) of the Constitution.
“There can’t be truth in the absence of the exercise of rights under Article 19(1)(a). If the Government says this is the truth which everyone must follow, it strikes at the core of Article 19. The very core of Article 19 is the right of the citizen to speak against the State. This Rule attacks the very core of Article 19,” Farasat argued.
Advocate Gautam Bhatia, appearing for the Association of Indian Magazines, also highlighted the need for a robust “safe harbour” immunity for intermediaries, arguing that any law diluting such a guarantee cannot be taken lightly, even if the government assures that the rules would not be applied against political opinions or satire.
The petitioners also questioned the haste with which the Centre notified the FCU, pointing out that the Bombay High Court is yet to deliver its final judgment on the matter after a split verdict. The court was informed that the Centre had agreed not to notify the FCU until the High Court’s decision, but proceeded to do so last week after one of the judges on the bench refused to stay the amended rules.
Opposing the petitioners’ arguments, Solicitor General Tushar Mehta, representing the Union government, defended the FCU mechanism as the “least restrictive” measure adopted to manage fake news related to official government business.
Mehta clarified that the impugned rules are restricted to “Governmental business” as defined in the constitutional sense, and would not apply to criticism of political leaders or satire. He cited the example of a recent fake social media post claiming that the Chief Justice of India had asked people to take to the streets and protest, arguing that such misinformation could lead to public havoc and hysteria, necessitating the need for an FCU.
The Solicitor General further explained that the rules require intermediaries to make “reasonable efforts” to take down posts flagged as false by the FCU. If an intermediary deems the post to be true and continues to host it, the intermediary risks losing its safe harbour immunity in the event of a third party approaching the court, claiming to have suffered from the said post or information.
“The rule says they have to take ‘reasonable efforts’ to take down. Suppose I am Facebook. And if I feel that this is not false and I don’t put a disclaimer, what is the consequence? If another person has suffered because of the post, and he approaches the Court of law, then the intermediary will not be able to plead that it has safe harbour immunity. But it can continue to defend that the post is true,” Mehta elaborated.
Notably, the Solicitor General informed the court that none of the intermediaries had challenged the amended rules, potentially indicating their acceptance of the FCU mechanism.
The Supreme Court’s decision to stay the notification of the FCU comes amid growing concerns over the potential impact of the amended IT Rules on the fundamental right to free speech and expression, particularly in the context of the upcoming general elections.
The petitioners had argued that the FCU could become a tool for the central government to control the information accessible to voters, potentially influencing the democratic process and the public’s assessment of the government’s performance over the past five years.
As the legal battle continues, the Bombay High Court’s final verdict on the constitutionality of the amended IT Rules will be eagerly awaited, as it will shape the future of online content regulation and the delicate balance between curbing misinformation and preserving the cherished right to free speech and expression in the digital age.
