BREAKING: Supreme Court Refuses To Stay Bombay High Court Order Striking Down IT Rules 2023 On Fact-Check Units; Issues Notice In Union's Plea

The Supreme Court refused to stay the Bombay High Court’s judgment that invalidated the Centre’s power to establish Fact-Check Units (FCUs).

The Court issued notice in the Union's plea challenging the judgment passed by the Bombay High Court, which delivered a split verdict on petitions seeking to strike down Rules 3(i)(II)(A) & (C) of the IT Amendment Rules, 2023. The impugned provisions allow the Central Government to establish a Fact Checking Unit (FCU) to identify any 'fake, false or misleading' information about its business on social media platforms.

After this judgment, the High Court's 'third judge' opined that, Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 as amended in 2023 is unconstitutional and ultra vires the Information Technology Act, 2000 (IT Act).

The Bench of Chief Justice Surya Kant, Justice R Mahadevan and Justice Joymalya Bagchi ordered, " Issue Notice...Accepts notice on behalf of the Respondents. Counter Affidavit to be filed within four weeks. Rejoinder to be filed within two weeks thereafter. Post the matter before a 3-judge bench..."

Solicitor General Tushar Mehta appeared on behalf of the Union of India, while Senior Advocates Arvind Datar and NH Seevai appeared for the Respondents.

Chief Justice Kant said, "Question is of paramount importance, and it is better the supreme court lays down the law. Questions by High Court is crucial and it is about balancing without compromising the constitutional values."

Senior Advocate Arvind Datar said, "It is about fact-check units, and proper rules need to be framed. Blocking rules are there...Section 69 is there."

Chief Justice Kant, "The High Court has also flagged issues which are extremely important... The only question is that how to balance these rights. How to balance the rights without compromising with the...the way some of these paltforms are behaving nowdays , see the illustrations placed on record, how dangerously"

Datar said, "The rules are there, within 24 hours they can take it down...following Kartar Singh, what is misleading is not defined."

Chief Justice said, "Shifting the entire onus on the machinery without any obligations on the intermediaries.....look at the fake messages about the Army, the policies..."

Datar said, "All of those were shown to the High Court and removed."

During the proceedings, Senior Advocate Arvind Datar also raised a preliminary objection regarding the delay infiling of the Union Government’s plea. Datar pointed out that the Centre’s petition suffered from a delay of several days in both its initial filing and subsequent re-filing.

SG Tushar Mehta asked, "Would your Lordships consider staying the order?"

Chief Justice Kant said, "No no no stay."

The Court expressed concern over how certain digital platforms operate, noting that "dangerous" misinformation can damage the reputation of institutions like the Army.

Background

The validity of Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 as amended in 2023 was the subject matter of challenge in the batch of writ petitions. The proceedings were decided by the Division Bench of the High Court which had struck down the amendment to Rule 3(1)(b)(v) of the Rules of 2021 as being ultra vires the provisions of Articles 14, 19(1)(a) and 19(1)(g) of the Constitution of India, Section 79 of the IT Act, 2000, and also being in violation of the principles of natural justice. Justice Neela Gokhale upheld the validity of the said Rule holding the same to be not violative of Articles 14 and 19(1)(a) of the Constitution. She held that the said Rule was not ultra vires the provisions of the Act of 2000 nor was it contrary to the judgment of the Supreme Court in Shreya Singhal v. Union of India, 2015 INSC 257. It was also held that the exemption under Section 79 of the Act of 2000 would cease to operate only if the offensive information as provided in the said Rule affected any restriction under Article 19(2) of the Constitution of India.

Before the High Court various petitioners, including stand-up comedian Kunal Kamra, the Editors Guild, the Association of Indian Magazines, and the News Broadcasters and Digital Association, challenged the constitutional validity of certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules in 2023.

Kunal Kamra argued that the amendments, specifically Rules 3(i)(II)(A) and (C), which introduced fact-checking provisions, violated his freedom of speech and right to carry out his profession as a comedian. The media organizations contended that the rules subjected their work to government-controlled fact-checking, impacting their freedom of the press.

The petitioners sought a declaration of the rules as unconstitutional and a writ of mandamus against their implementation. Legal arguments were presented on various constitutional grounds, including Article 14, Article 19(1)(a), Article 19(1)(g), and the violation of natural justice. The submissions covered concerns of discrimination, arbitrariness, and the legitimacy of the rule-making power for the amendments.

Justice GS Patel struck down the amendment, while observing that, "I believe it is unthinkable that any one entity — be it the government or anyone else — can unilaterally ‘identified’, (meaning picked out and decided) to be fake, false or misleading. That surely cannot be the sole preserve of the government. The argument that the government is ‘best placed’ to know the ‘truth’ about its affairs is equally true of every citizen and every entity. Paradoxically, complaints of a grievous nature (pornography, child abuse, intellectual property violations) can only be taken down only after following a grievance redressal procedure; yet anything relating to the business of the Central Government can be ‘identified’ as fake, false or misleading by the FCU — and cannot be hosted."

On the other hand, Justice Neela Gokhale upheld the validity of the amendment, and observed that, "The impugned Rule meets the test of proportionality. 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. The measures adopted by the Government are consistent with the object of the law and the impact of the encroachment on fundamental right is not disproportionate to the benefit which is likely to ensue."

Justice A.S. Chandurkar gave his opinion in a batch of writ petitions filed by stand-up comedian Kunal Kamra and others, challenging the validity of the aforesaid Rule. It was observed, “In my view, Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 is ultra vires the Act of 2000. Firstly, the amendment of 2023 has not been effected as required by Section 87(3) of the Act of 2000. It has not been shown that the proposed amendment was laid before each House of Parliament in the manner prescribed by Section 87(3) of the Act of 2000. Secondly, the amended Rule is not referable to Section 87(2)(z) as the said provision relates to the procedure and safeguards for blocking for access by the public under Section 69A(3). Section 87(2)(zg) refers to guidelines to be observed by intermediaries under Section 79(2) of the Act of 2000.”

Cause Title: Union of India and Ors. v. Kunal Kamra and Ors. [Diary No. 60880 of 2024]