Opinion Express View on SC stay on Fact Check Unit: Judge, jury, executioner
On the face of it, the FCU is violative of Article 19 of the Constitution -- the right to free speech. Democratic politics is an open contestation of ideas and personalities. The Centre must rethink
The FCU makes the government judge, jury and executioner. There is little clarity in the Rules about terms like “fake”, “misleading” and “false”. 
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In April 2023, the Ministry of IT and Electronics first notified the amendments to the 2021 IT Rules to enable the creation of a Fact Checking Unit (FCU) that could effectively censor online content related to “any business of the central government” deemed as “fake” or “misleading”. At the time, Minister Rajeev Chandrashekhar had said that “any doubts in the minds of people that the power will be misused on behalf of the government will be addressed”.
Earlier this week, as the Centre sought to notify the FCU as a statutory body under the Press Information Bureau, even though the constitutionality of the amended Rules has been challenged in the Supreme Court, it became clear that the minister’s assurance held little water. The Court has stayed the government’s move but the fundamental problem with granting a body under the Ministry of Information & Broadcasting the power of censorship remains.
The FCU makes the government judge, jury and executioner. There is little clarity in the Rules about terms like “fake”, “misleading” and “false”. Once a piece of news is deemed misleading, it must be taken down by the “intermediaries” — social media and media platforms, and internet service providers. Fake news is indeed a problem, especially when it incites violence. But the determination of liability, of truth and falsity, cannot be done by the government alone.
The judiciary and existing laws — criminal and civil — are part of a system that can deal with fake news that is harmful to individuals and society. It is not for the PIB to usurp the role of the courts. That the FCU is not required to provide written orders detailing its reasoning only adds to the apprehension that it can likely suppress inconvenient journalism, dissent and disagreement.
The timing, too, raises questions. The Rules were challenged before the Bombay High Court and a division bench delivered a split verdict on January 31. A larger HC Bench refused to grant an interim stay order. Before the Supreme Court could weigh in on the appeal, the government — with elections around the corner — decided to grant the FCU statutory status.
On the face of it, the FCU is violative of Article 19 of the Constitution — the right to free speech. Democratic politics is an open contestation of ideas and personalities. The Centre must heed the words of Justice GS Patel, who delivered the dissenting judgment in the Bombay HC: “…[The] state cannot coercively classify speech as true or false and compel the non-publication of the latter. That is nothing but censorship”.
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