Challenge to IT Rules 2023 | Supreme Court stays Union government’s notification establishing a fact check unit

Challenge to the IT Rules 2023

Judges: D.Y. Chandrachud CJI, J.B. Pardiwala J, Manoj Misra J

Advay Vora | 21st Mar 2024

Today, the Supreme Court stayed the Union governments notification that established a fact check unit under Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Rules 2023). 

As per the Rules, social media intermediaries had to make “reasonable efforts” in refraining from hosting any information related to the “business of the central government” deemed “fake, false, or misleading” by the Union government’s fact check unit. The Bench led by Chief Justice D.Y. Chandrachud, and Justices J.B. Pardiwala and Manoj Misra observed that the Rule raises a “serious constitutional question” due to its possible “impact on the freedom of speech and expression.” 

Yesterday, the Union government had notified the formation of the fact check unit following the Bombay High Court’s refusal to grant a stay on 11 March 2024. Justice A.S. Chandurkar of the Bombay High Court while refusing the stay noted that there would be no “irreparable loss” if the fact check unit were allowed to be established, as its existence hinged upon the constitutionality of Rule 3(1)(b)(v). The hearings are set to commence in two weeks, i.e. on 15 April 2024.

Senior Advocate Darius Khambata represented political satirist Kunal Kamra, the original petitioner in the Bombay High Court renowned for his political commentaries. Kamra argued that his satirical content would be scrutinised by the fact check unit, potentially leading to its removal. Advocate Shadan Farasat represented the Editors Guild of India, while Solicitor General Tushar Mehta appeared on behalf of the Union of India.

Khambata: Unreasonable haste to notify fact check unit before Elections 

Khambata pointed out that a division bench of the Bombay High Court had reached an impasse due to a split verdict. Justice Chandurkar will be the tie-breaker judge. He pointed out that Justice Gautam Patel’s opinion in the split verdict called for completely striking down Rule 3(1)(b)(v) because of its implications on freedom of speech and expression. In contrast, Justice Neela Gokhale’s contrary opinion upheld the Rule by construing it more narrowly. Khambata outlined the four safeguards Justice Gokhale had read into the rule:

  1. The requirement for social media intermediaries to place a disclaimer on any information deemed false by the fact check unit.
  2. Application of the rules only to information involving “actual malice” and “reckless disregard of the truth.”
  3. Restricting the rules to information falling under the reasonable restrictions exhaustively listed under Article 19(2) of the Constitution.
  4. Ensuring that the blocking of information aligns with the procedures outlined in the Blocking Rules 2009.

Khambata argued that none of these safeguards were explicitly specified within the provision itself. Additionally, the procedures outlined in the Blocking Rules 2009 and the IT Rules 2023 should remain consistent, as both are derived from Section 69a of the Information Technology Act, 2002. This section empowers the Union government to block information based on specific criteria outlined under Article 19(2) of the Constitution.

In a previous hearing in September 2023, the Union government through Mehta had stated in the Bombay High Court that the fact check unit would not be established until a judgement was pronounced. Khambata contended that the constitutionality of the rules’ is still under consideration by the Bombay High Court following the deadlock resulting from the split verdict. He argued that the fact check unit was only formed 11 months after the amendment was introduced. He suggested that the Union had displayed undue haste with the elections in sight. Khambata argued that the fact check unit will flag any information that would deem critical of the Union.

Interestingly, no social media company has challenged the Union’s move. Khambata stated that these companies were driven by commercial interests and would comply willingly, fearing the loss of their safe harbour protections under Section 79(1) of the IT Act, 2002. Rule 7 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 further penalises social media intermediaries for non-compliance by reducing their legal protections.

Petitioners: Union’s move strikes at the core of freedom of speech and expression

Farasat argued that the fact check unit was notified at the “worst time” when the “model code is in order” before the elections. He stated that the Union government’s version will become the “only version”, and the Press Information Bureau the “biggest megaphone.” 

He stated that the media functions to provide both versions of events, and the provision will significantly impact their ability to encourage discussions and discourse. He stated that the rules strike at the “core of Article 19(1)(a)” of the Constitution. He stressed that the essence of freedom of speech lies in enabling private individuals to speak out against the government. 

Farsat stated that the Bombay High Court refused to stay the notification of the fact check unit “on the assumption that the government will be good boys.” 

Advocate Gautam Bhatia added that Shreya Singhal v Union of India (2015), which struck down Section 66a of the IT Act, specifically stated that the promise of fairly implementing an unconstitutional law does not make it constitutional. He pointed out that Justice Chandurkar had taken the word of the Union that the Rule would not be made applicable to political satire, sarcasm, and political commentaries. The petitioners wished to convey that trusting the Union government with the law may not be the best way forward. 

Mehta: Interpret “business of the central government” in constitutional context

Mehta argued that the Supreme Court need not consider an application for staying the notification of the fact check unit as the Bombay High Court was going to consider the constitutionality of the Rules in mid-April. Further, he stated that the Rule was implemented as Section 69a was not adequate to deal with misleading information and fake news. Additionally, Mehta contended that social media intermediaries were not mandated to remove any flagged news but were obligated to issue a disclaimer below the published information.

CJI Chandrachud asked whether Mehta’s assurances were written under Rule 3(1)(b)(v). Mehta replied that he provided all the information to the Bombay High Court in his written submissions. He also emphasised that the phrase “business of the central government” must be interpreted within the constitutional framework and in light of the Transaction of Business Rules, 1961. Mehta proceeded to read out several instances of misleading reports spread on social media to underscore the necessity of a fact checking mechanism, which he argued would aid users in discerning between true and false information. 

The Bench was unconvinced with Mehta’s arguments. The Bench refrained from commenting on the constitutional arguments raised by the petitioners to avoid influencing the pending challenges before the Bombay High Court. They observed that the Union had assured that there will be no notification of the fact check unit until the challenge to the rules has reached its finality. 

Following the Supreme Court’s decision, Rule 3(1)(b)(v) will be inoperable, in the absence of a fact check unit.