Opinion PIB’s fact-checking unit: Can the Centre decide what is true about itself and what is not?

First, the fundamental question of the necessity of such a unit in the first place. Government ministries and departments can and do already provide clarifications on their policies and functioning as and when needed. Clarifications on government policy are routinely sought and given on the floor of Parliament. If there is some blatantly misleading news doing the rounds online about a specific government measure, a press release explaining the “correct” position would be enough for most credible platforms and media organisations to act on. In this context, it is unclear what more the FCU is meant to do except provide the government more definitive control over online conversations and narratives.

Second, the scope of the FCU’s powers is extremely broad, and would normally require concrete legislative backing instead of a mere executive order. There is no indication for instance of what “false”, “fake”, or “misleading” mean. A simple glance through PIB Fact Check’s posts on the social media platform X shows that in the past it has not bothered to draw much of a distinction between opinion and fact, routinely flagging content that is clearly the former as “misleading”. There is also little clarity on what exactly is the “business of the central government”. An earlier draft of the amendments to the IT Rules, circulated in January 2023, provided some understanding by including “business as transacted under the Rules of Business made under clause (3) of article 77 of the Constitution”, thus restricting its ambit somewhat to the official workings of the central government and its departments. However, this phrasing was removed from the subsequent amendment promulgated in April 2023. Currently, therefore, anything that the central government deems to be its business, becomes its business irrespective of whether it can legally or constitutionally do so.

Third, it is unclear what will be the procedure adopted by the unit in its day-to-day functioning and how its powers will be practically exercised. Are there any established guidelines to determine what is “misleading” or “fake”? What happens if an intermediary does not immediately comply? Is there an appeals mechanism? Can decisions be reviewed? Who can review them? Will there be an independent ombudsman of some form? None of these questions have been answered in any manner in the amendment or the subsequent notifications, providing the FCU and by extension, the central government, a wide berth to be extremely selective in its interventions. The FCU is also not required to provide written, reasoned orders for its decisions, which will make subsequent notices hard to challenge by intermediaries, vitiating the spirit of the landmark Supreme Court judgment in Shreya Singhal v Union of India, which mandated these safeguards under the IT Act and Rules.

Fourth, the timing of the notification is questionable, coming as it did just a day before the Supreme Court was set to hear an appeal from the Bombay High Court on the matter, and mere weeks before the general election. Even if there is nothing particularly illegal about it, the optics of the move do not lend it credibility. After all, there is no particular urgency to issue the notification. The government could have waited till at least the Supreme Court’s decision on staying the notification — which has been granted for the moment. The move smells more of political expediency than any immediate policy need.

Fifth, there is the philosophical question of whether the central government can decide what is true about itself and what is not. The basis for freedom of speech in any democracy is a contest between competing narratives and ideas. Misinformation about a fact should be tackled but it should ideally be done by an independent body and be restricted to the facts alone. In this instance, the central government becomes the judge, jury, and executioner in its own case. It decides what is true about itself and intermediaries must comply under threat of prosecution. The scope for contestation of ideas and narratives therefore is greatly reduced.

What the March 20 notification, therefore does, is create a new powerful internet regulator, answerable only to the central government, without the required legislative process or procedural safeguards. The notification also does not portend well for the direction that upcoming legislation such as the Digital India Act might take in the digital sphere.

The writer is Managing Partner, Evam Law & Policy