The Union Electronics and IT Ministry had notified the FCU on March 20, as a statutory body under the Press Information Bureau with powers to flag what it believes is false information related to the central government and its agencies on social media sites.
The amendment to the IT Rules, 2021, which allowed the Ministry to appoint the FCU, were notified in April 2023. On January 31 this year, a two-judge Bench of the HC gave a split verdict on a challenge to the Rules.
A third judge who was assigned to give an opinion on the split verdict is yet to give his final decision. However, on March 11, the third judge declined to stay the setting up of the FCU — and on March 13, the division Bench said by a 2-1 majority that it would not stay the notification of the FCU.
The amended Rules
The amendment to The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 notified in April 2023 did two things: first, they brought in a legal framework for the online gaming eco-system and second, more crucially, introduced a legal mechanism for the government to fact-check online content pertaining to “government business”
Among other things, the Rules made it obligatory on intermediaries like social media platforms “to not to publish, share or host fake, false or misleading information in respect of any business of the Central Government”.
The changes raised concern that the FCU will make the government the “sole arbiter of truth” in respect of any business related to itself.
Subsequently, the rules were challenged before the Bombay High Court.
Question before HC
The petitioners, including standup comedian Kunal Kamra; Association of Indian Magazines, Editors Guild of India, news channel TV18 Broadcast Limited, and Bennett, Coleman & Company Limited challenged Rule 3(1)(b)(v) of the IT Rules 2021 as being violative of Article 14, Article 19(1)(a) and (g), and Article 21 of the Constitution, and Section 79 and the Information Technology Act, 2000 (IT Act).
The amendment to Rule 3(1)(b)(v) of the IT Rules 2021 essentially expanded the general term “fake news” to include fake news involving government business.
This provision, when enacted in 2021, referred to “…any information which is patently false or misleading in nature but may reasonably be perceived as a fact”. By the 2023 amendment, after the word “nature”, the words “or, in respect of any business of the Central Government, is identified as fake or false or misleading by such fact check unit of the Central Government as the Ministry may, by notification published in the Official Gazette, specify” were inserted.
The petitioners argued before the court that this would have a “chilling effect” upon the freedom of speech and expression.
Section 69 of the IT Act empowers the government to issue directions to block public access to any information through any computer resource. The Rules were framed essentially in exercise of this power.
However, no rule-making or legislation-making powers can be exercised by Parliament in a manner that is contrary to Part III of the Constitution, which deals with fundamental rights.
The Bombay High Court examined if these Rules were violative of free speech, and were arbitrary in nature.
HC ruling and after
On 31 January, a division Bench comprising Justices G S Patel and Neela Gokhale delivered a split verdict in the case. While Justice Patel struck down the amended rules, Justice Gokhale upheld them.
Justice Gokhale said that the “right of citizens to participate in the representative and participative democracy of the county is meaningless unless they have access to authentic information and are not misled by misinformation, information which is patently untrue, fake, false, or misleading, knowingly communicated with malicious intent”.
Justice Patel held that the “state cannot coercively classify speech as true or false and compel the non-publication of the latter. That is nothing but censorship.”
Since a split verdict was delivered, as per rules of the Bombay High Court, the case had to be heard afresh by a third judge whose opinion would create a majority and bring about a 2-1 verdict. On February 7, Bombay HC Chief Justice Devendra Kumar Upadhyaya assigned Justice Atul S Chandurkar as the third judge in the case.
However, before beginning a substantial hearing, Justice Chandurkar had to decide if the Rules were to be stayed. After the central government told the court that the Rules were yet to be notified in the official gazette, Justice Chandurkar refused to grant an interim stay on the amended Rules.
Thereafter, an appeal was filed before the Supreme Court against the rejection of interim stay. However, just a day before the SC was to hear the appeal against rejection of stay, the Centre notified the 2023 Rules in the official gazette. With Lok Sabha elections less than a month away, the Rules are crucial for the government’s engagement with news about “government business”.
What the SC said
A Bench headed by Chief Justice of India (CJI) D Y Chandrachud has stayed the amended Rules until the Bombay High Court reaches a final conclusion.
Dictating a short order, the CJI observed that the issue before the court is whether the status quo should be allowed to change when one judge (Justice Patel) has completely struck down the notification.
Staying of a law
Can the SC stay a law before it can rule it unconstitutional?
A law made by Parliament carries the presumption of constitutionality. While it is subject to judicial review, the onus rests on the petitioners to prove that the law is unconstitutional. Navigating the line between judicial review and Parliament’s powers to legislate, courts generally shy away from staying laws before they can rule on its constitutionality.
However, two crucial aspects are at play in this case.
One, the Rules in question are not acts of legislation. They are made by the Ministry in exercise of powers delegated to the central government by Parliament, and are not a direct expression of the will of Parliament. The threshold for the presumption of constitutionality varies.
Second, the SC has in the past stated that an interim stay can be granted only on an explicit finding of unconstitutionality. It can be inferred from the observations of CJI Chandrachud that Justice Patel’s detailed 148-page ruling, although part of a split verdict, is an “explicit finding of unconstitutionality”.
In 2020, the SC had stayed the operation of a Maharashtra law granting reservation to Marathas in jobs and educational institutions through an interim order. The farm laws — which were ultimately repealed — were also stayed by the SC in an interim order in 2021.
The amendment to the IT Rules, 2021, which allowed the Ministry to appoint the FCU, were notified in April 2023. On January 31 this year, a two-judge Bench of the HC gave a split verdict on a challenge to the Rules. (Representational image/Pixabay) 
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