Big setback for Centre as Supreme Court stays notification on Fact Check Unit under IT rules

In a big setback for the Union government, the Supreme Court on March 21 stayed the Ministry of Electronics and Information Technology’s notification on Fact Check Units (FCUs) under the IT rules.

The top court held that there is “more than a prima facie case” for staying operation of FCU rules. The court pointed out that since April 2023, Centre had kept the rules in abeyance.b

The Supreme Court noted that the Bombay High Court will begin hearing the pleas against FCU rules from April 15. Until the BombVijay Ananday High Court decides on the plea against FCU rules, there will be a stay on the MEITY notification.

The apex court has directed the Bombay High Court to assess the impact of FCU rules on the fundamental right to free speech. It also noted that FCU rules raise serious constitutional questions.

The development comes just a day after, the ministry in a notification said the FCUs were being notified "in exercise of powers conferred by sub-clause (v) of clause (b) of sub-rule (1) of rule 3 of the Information Technology (Intermediary Guidelines and Media Ethics Code) Rules, 2021, under the ... Ministry of Information and Broadcasting."

Initiated on April 6, 2023 by the Prime Minister Narendra Modi-led government, the IT Rules amendments introduced the FCU to identify and signal "fake, false, or misleading online content concerning the government."

As per the rules, if flagged, social media intermediaries have the choice to either remove the content or attach a disclaimer. However, by opting for the latter, they forfeit their legal immunity, opening themselves to legal repercussions.

On March 12, the Bombay HC had refused to restrain the government from notifying FCU. The Bombay HC was hearing a plea by the Editors Guild and Kunal Kamra challenging the constitutionality of a government-backed Fact Checking Unit. The petitioners have now moved the Supreme Court.