Centre’s Fact Check Unit On Hold: The Case By Kunal Kamra, Editors Guild

The Supreme Court’s pause on the Centre’s move to notify the Fact Check Unit under the Press Information Bureau followed arguments by the counsel of stand-up comic Kunal Kamra and the Editors Guild of India, flagging concerns over freedom of expression.

The top court today set aside the ruling by a single-judge bench of Bombay High Court that had said no grave loss would be caused if the Centre sets up the Fact Check Unit.

The petitioners have expressed concerns of censorship and said the new IT rules, under which the Fact Check Unit was notified, would restrict users from expressing themselves freely on social media.

What Petitioners Said

Challenging the ruling, Senior Advocate Darius Khambata, appearing for Mr Kamra, said the new IT rules will have a “chilling effect on free speech”.

Under the rules introduced last year, if the Fact Check Unit comes across any post that is fake, false, and contains misleading facts about the business of the government, it would flag them to social media intermediaries. Once such a post is flagged, the intermediary has the option of taking it down or putting a disclaimer. In taking the second option, the intermediary risks legal action.

Mr Khambata today said social media intermediaries might take down content flagged by the Fact Check Unit instead of taking any risk.

“Of course they will, why will they take that risk. It has a chilling effect on free speech. No intermediary challenged these rules. Why? Because they will protect their interests. They will happily be chilled,” he said, according to a Bar & Bench report.

Mr Khambata said the new rules focused on protecting the Centre. “It is a question of Caesar judging Caesar. Centre is not a separate class. If the object is to prevent fake news, everyone is affected. Individuals even more,” he said.

“Elections are coming, public must have all information about the government. Not information filtered out as fake by Centre,” he added.

The senior lawyer also said the government’s Fact Check Unit was the biggest irony because a government arm is supposed to put out correct information about the government.

Appearing for the Editors Guild, Advocate Shadan Farasat said the government dictating whether or not something was true struck at the core of Article 19(1)(a) – right to freedom of speech and expression – of the Constitution.

“The judges (of high court) have proceeded on the assumption that the government is a good boy. The critique business of the government is why Article 19(1)(a) exists,” he said.

Mr Farasat said the model code of conduct had come into force with the Election Commission announcing the dates for Lok Sabha election and stressed that it was the worst time to notify the Fact Check Unit.

“How will investigative journalist work at all? It is through several sources in the government. Now a central authority will stamp out all other voices. It even impacts the disputed question between Centre and state,” he said.

Earlier, a division bench of Bombay High Court had delivered a split verdict and the case moved to a single-judge bench, which refused relief to the petitioners.

What The Centre Said

The government has maintained that the rules were issued in the public interest to crack down on fake news. Political opinions, satire and comedy are not linked to government business, the Centre has argued, but petitioners say ‘business of the Central Government’ is a “vague” area.

Solicitor General Tushar Mehta today said the online medium was uncontrollable and spanned across borders. “What bothered government is that false news of the government being flashed across intermediaries. Like there is going to be a huge covid influx and then people start queuing up for grains etc,” he explained.

Mr Mehta clarified that it would be restricted to government business. “If someone criticises the prime minister, it would not fall under this,” he stated.

What Supreme Court Said

The bench of Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra, noted that the final hearing on the challenge to the new IT rules would begin in Bombay High Court on April 15. It also noted that the single-judge bench’s order came did not pause the Fact Check Unit because it had not been notified then.

The Supreme Court noted that the challenge to the validity of IT Rules involves serious constitutional questions and its impact on free speech and expression would need to be analysed by the high court. Therefore, it paused the notification, but noted that it is not commenting on the merits of the case.