Get Your Facts Right – Stay on the Fact Check Notification by the Supreme Court¹

Quite apart from the statement of the Union of India which held the field during the pendency of the proceedings before the High Court, the challenges to the validity of Rule 3(1)(b) (v) involve serious constitutional questions.” 

-Full Bench of the Supreme Court

Recently, a full bench of the Hon’ble Supreme Court (“Supreme Court”) in Editors Guild of India vs. Union of India and Ors.² stayed the notification of the Central Government dated March 20, 2024 (“Notification”)³, which notified the Press Information Bureau as the Fact Checking Unit of the Central Government, under Rule 3(1)(b)(v) ⁴ (“Impugned Rule”) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2022 (“Intermediary Rules”).

This appeal arose on account of the judgement passed by the High Court of Judicature at Bombay (“Bombay High Court”) in a constitutional challenge (“Constitutional Challenge”) of the Impugned Rule (amended in the Intermediary Rules by way of a notification dated April 6, 2023). The Impugned Rule essentially imposes an obligation on the online platforms/intermediaries to take “reasonable steps” to inter alia not host, display, upload etc. any information that is identified as fake or false or misleading by the Fact Checking Unit under the Impugned Rule. Further, on failure of the intermediary to do so, the safe harbor protection conferred under Section 79⁵ of the Information Technologies Act, 2000 (“Act”) shall not be applicable to such intermediary.

During the course of adjudication of the Constitutional Challenge, it was resolved that the Fact Checking Unit will not be notified until the judgement was delivered by the Bombay High Court. On January 31, 2024, when a split verdict was passed, one judge stated that the Impugned Rule, as amended, is unconstitutional in its entirety, while the other disagreed and stated the the Impugned Rule to be constitutionally valid subject to safeguards read down in the Impugned Rule.

While one judge reasoned that there was complete absence of autonomy and freedom of free speech and expression in the Impugned Rule, both, in terms of the literal interpretation of the Rule and the practical implications of the same, the other relied upon the reasonable restrictions on freedom of free speech under Article 19(1)(a) of the Constitution of India, and placed certain safeguards within the Impugned Rule, being that (i) intermediary is only required to place a disclaimer; (ii) the Impugned Rule requires actual malice; (iii) the operation of the Impugned Rule being restricted to grounds referable under Article 19(1)(2), and (iv) the application of the Blocking Rules of 2009 to be followed by the Fact Checking Unit.

Owing to the divergence in the decisions of the division bench of the Bombay High Court, the same was referred to a third judge (“Umpire Judge”) who eventually vide its order dated March 11, 2024 rejected the interim reliefs sought, and adverted to the fact that there was no requirement to specifically stay the notification of the Fact Checking Unit as the Fact Checking Unit was not notified at that stage. Interestingly, the Umpire Judge took note of the fact that the Constitutional Challenge involves grave questions of fundamental rights and free speech. However, after that, the Fact Checking Unit was notified.

The Supreme Court herein adjudicated over the limited, yet pertinent, point of whether the status quo qua stay on notification of the Fact Checking Unit which was maintained during pendency of the proceedings should be altered when the matter was ripe for final hearing as early as April 15, 2024 before the Bombay High Court.

The Supreme Court considered the polarity in the decisions of the two judges and the ongoing hearing before the Umpire Judge of the Bombay High Court as well as the fact that the safeguards set forth by the Bombay High Court judge were not contained in the Impugned Rule and were in fact urged by the Solicitor General before the Bombay High Court and the Supreme Court.

The Supreme Court, noting that the Constitutional Challenge pending before the Bombay High Court “implicates core values impinging on the freedom of speech which is protected by Article 19(1)(a) of the Constitution” and “involve serious constitutional questions”, stayed the Notification pending the disposal of the Constitutional Challenge before the Bombay High Court, set aside the opinion of the Umpire Judge as well as passed orders regarding the governing of the consequential orders as passed by the division bench of the Bombay High Court on March 13, 2024 giving effect to the order of the Umpire Judge.

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