The notification of the Fact Check Unit issued by the Ministry of Electronics and Information Technology (MeitY) on March 20, 2024, shall be stayed pending the final verdict of the fact check unit case before the Bombay High Court, directed the Supreme Court of India.
“We set aside the opinion of the third learned judge declining interim relief and direct that pending the final disposal by the High Court, the notification dated March 20 by Meity shall remain stayed,” said the Court after hearing an appeal by petitioners Editors Guild of India and satirist Kunal Kamra on March 21, 2024. Solicitor General Tushar Mehta was the legal representative of the Union of India.
The final verdict of the Bombay High Court case will be delivered following the concluding remarks of the third referral judge Justice A S Chandurkar, likely to be made on April 15, 2024.
Highlights of the hearing:
Legal representatives of the petitioners argued that Rule 3 1(B) under which the Fact Checking Unit (FCU) is to be created violates the fundamental right to freedom of speech and expression protected by Article 19(A) of the Indian constitution.
Particularly in view of the approaching elections, the legal counsel said that the operation of the rule to create such an FCU would amount to the “singularity of the truth” as approved by the government.
On the other hand, Mehta argued that the rule does not force online intermediaries to take down content but takes away the intermediary’s safe harbor protections in case an aggrieved person approaches the court.
We will be publishing a follow-up article detailing the proceedings of the hearing soon.
What is the Bombay High Court petition against?
Following the announcement of the FCU in 2023, Kamra filed a petition in the Bombay High Court in April 2023 asking that the FCU and the amendment under which it was introduced be deemed unconstitutional. The Editors Guild of India raised a similar petition months later. The Association of India Magazines followed suit in June 2024, adding that the rule violates fundamental rights to equality, speech, and liberty. Now, all these petitions are being heard together by the court.
Keeping up with the case: We’ve reported extensively on the fact check amendment, the challenges to it, and the in-court proceedings. Here’s our list of top reads:
- April 2023: Our breakdown of the government’s plans to fact-check government-related information online. [Read]
- April 2023: The amendment faces its first legal challenge with political satirist Kunal Kamra’s Bombay High Court petition. [Read]
- June 2023: The IT Ministry informs the Bombay High Court that the amendment won’t go into force before July 5th, 2023. [Read] In June, the IT Ministry extends the stay until July 10th. [Read]
- June 2023: The Association of Indian Magazines files its challenge against the amendment at the Bombay High Court. [Read]
- June 2023: The Editors Guild of India files its challenge against the amendment at the Bombay High Court. [Read]
- June 2023: Government defends fact check amendment in affidavit filed before Bombay High Court, says fake speech adversely impacts society and requires regulation. [Read]
- The hearings:
- July 2023: Senior Advocate Navroz Seervai appearing for Kunal Kamra questions the government’s ‘nanny state’ approach to dealing with misinformation. [Read]
- July 2023: Justice G.S. Patel raises questions on the authority being conferred to the fact check unit. [Read]
- July 2023: Justice G.S. Patel asks whether the offline printed versions of online information will also be censored. [Read]
- July 2023: Petitioners critique the lack of definitions in the amendment, including of ‘fake’, ‘false’, ‘misleading’, and ‘business of the Central government’. [Read]
- July 2023: Petitioners argue that the fact check amendment violates proportionality tests, which measure infringements on fundamental rights like free speech. [Read]
- July 2023: Petitioners critique the multiple free speech concerns raised by the fact check amendment, including on dissent, journalism, and more. [Read]
- September 2023: Solicitor General Tushar Mehta opens the government’s defence of the provision, argues that it is ultimately the courts who decide on the validity of an intermediary’s decision on a fact check notice. [Read]
- September 2023: Petitioners respond to Mehta’s defence, arguing that it implies that choosing to keep up content will lead to loss of safe harbour. [Read]
- September 2023: Bombay High Court sets date for final judgment. [Read]
- January 31, 2024: Bombay High Court’s two-judge Bench gives a split verdict and sends the case for hearing before a third referral judge. [Read]
- March 11, 2024: Justice A S Chandurkar, the third referral judge, rejected the interim relief as well as the stay on the formation of the FCU. [Read]
- March 14, 2024: The two-judge Bench of the Bombay High Court stated that the majority view is to reject the stay order the Fact-Check Unit. [Read]
- March 20, 2024: MeitY notifies the Fact-Check Unit under the Press Information Bureau of the Ministry of Information and Broadcasting [Read]
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Also Read:
- MeitY Notifies Fact Checking Unit Of The Press Information Bureau
- Bombay High Court Rejects Stay On Fact-Checking Unit With A Majority View
- Fact-Check Amendment Will “Impoverish” Political Discourse Online: Editors Guild Of India Challenge At Bombay HC
- Kunal Kamra Challenges IT Rules Fact-Check Amendment In Bombay High Court
