New Delhi: The Supreme Court Thursday stayed a notification issued by the Centre a day ago on the formation of a fact-checking unit (FCU) that would red-flag what it believed to be false information related to the government.
The notification mandated that intermediaries pull down content was identified as “misinformation” by the FCU or face the risk of judicial proceedings.
A three-judge bench headed by Chief Justice D.Y. Chandrachud ordered the stay to operate until the single-judge bench of the Bombay High Court had decided on petitions challenging the set-up of the FCU.
Introduced through an amendment of rule 3 of the Information Technology Act (IT), the FCU’s constitution was challenged before the HC by comedian Kunal Kamra.
In February this year, a division bench delivered a split verdict, after which it was referred to a third judge, Justice A.S. Chandurkar.
This judge will commence hearing on the merits of the petitions on 15 April.
Though Justice Chandurkar had fixed the date for hearing the matter, he refused to stay the FCU on 11 March. Two days later, on 13 March, a division bench of the Bombay HC, too, declined to issue stay orders, prompting the petitioners there to approach the top court.
While the appeal against the HC’s refusal to put the FCU on hold was pending in the SC, the Centre notified it Wednesday , even as the SC listed the case for a hearing Thursday.
The bench, also comprising justices J.B. Pardiwala and Manoj Mishra, said the challenge raised in the petitions pending before the HC “implicates core values of freedom of speech and expression”.
The bench further added that queries in the petitions raised “serious constitutional questions”. The FCU’s impact on the fundamental right to freedom of speech and expression would need to be analysed by the HC, the top court said.
The bench also considered the fact that the Centre in April 2023 had given an assurance to Bombay HC that the FCU would not be notified until its final judgement.
“We are clearly of the view that the statement made on 1 April, 2023 makes more than a prima facie case, which exists to stay the rule (rule 3 to the extent it envisages FCU),” the apex court said.
The bench clarified that since all issues await a final adjudication by the HC, the judges were resisting from “expressing on the opinion on the merits” as the same “will have the impact of foreclosing the full and fair consideration (before the HC)”.
When solicitor general Tushar Mehta contended that he did not receive a fair chance to present the relevant documents and facts regarding the case, CJI Chandrachud verbally remarked: “At one point of time, we were of the view to bring the entire matter here.”
The court took into account that the notification was issued after Justice Chandurkar rejected the petitioners’ application for interim relief to stay the FCU’s constitution.
As the bench set aside the HC’s 11 and 13 March orders, it observed that one of the two judges who comprised the division bench that delivered the split verdict, Justice Gautam Patel, had declared the rule on the FCU invalid in its entirety.
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The second judge, Justice Neera Gokhale, has upheld the rule, but subject to certain safeguards, which she spelled out in her opinion.
Though these safeguards were mentioned by the solicitor general, they did not feature in the rules.
These safeguards included requiring the intermediary to add a disclaimer to the alleged fake news upon being flagged by the FCU, and to follow the procedure as laid out in the rules related to blocking of websites under the IT Act.
Defending the concept of the FCU, Mehta said the statutory provision, which is in the IT Act, is not adequate to deal with the proliferation of false or misleading and fake news on the internet. He further said in terms of the rule, the intermediary was not necessarily required to take down the post, but to issue a disclaimer along the lines suggested by the FCU.
“Deprivation of the safe harbour” provision under the IT Act would not cause prejudice to the intermediary since the final arbiter of any dispute arising out of taking down the alleged fake news would be the court, Mehta said. The intermediary will retain its rights to defend itself in judicial proceedings and cannot claim protection to say that it was merely a hosting platform, he added.
Also, the term “government business”, as contained in the FCU rule, would be read in the constitutional context. Mehta added that “government business” would be strictly confined to the definition given in the Transaction of Business Rules.
“If somebody criticises the prime minister, it would not fall within this (FCU),” Mehta said, clarifying the work to be undertaken by the unit.
The solicitor also added that FCU should be read in the context of reasonable restrictions under Article 19 of the Constitution that allows the state to impose fetters on free speech and expression. FCU, he said, was the “least intrusive measure” adopted under this provision.
Under the settled jurisprudence, reiterated multiple times by the top court, the government can legislate to restrict fundamental rights of citizens, provided it qualifies under the proportionality doctrine set out by the SC. The “least intrusive measure” is part of this doctrine, Mehta argued.
Mehta finally said that none of the intermediaries had challenged the FCU rule. He contended that the notification was issued as the impression given by the 11 March order was that the stay was vacated.
Kamra’s counsel, senior advocate Darius Khambatta and the Editors’ Guild of India’s lawyer, Shadan Farasat, however, submitted that the FCU could not have been notified in view of the Centre’s statement made in April last year before the HC, assuring the court that it would not be set up.
This undertaking, the court was told, was to operate until the final adjudication of the case, which is yet to be done. The final decision would come only after Justice Chandurkar pronounced his view.
Faced with the prospect of losing the “safe harbour” and guided by commercial interest, the intermediaries had chosen not to challenge the rule and would be open to adopting the simple recourse of pulling down the content flagged as fake, the lawyers said.
The rule on the FCU will have a “serious chilling effect” on the exercise of freedom of speech and expression since the only true voice would be the government’s voice, the lawyers said, adding that the operation of the notification in the context of the election cycle would amount to placing before the public only the government’s voice.
(Edited by Tikli Basu)
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