The Supreme Court on Tuesday said it would lay down the law on the Union government’s attempt to set up a fact-checking unit (FCU) to flag fake or misleading information related to government actions, observing that individuals, digital platforms and intermediaries should share the responsibility in tackling harmful online content.
A bench of Chief Justice of India (CJI) Surya Kant and Justices R Mahadevan and Joymalia Bagchi admitted the government’s appeal against the September 2024 ruling of the Bombay High Court that struck down the rule enabling the government to notify such a unit under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
The court issued notices to comedian Kunal Kamra, the Editors’ Guild of India and the Indian Journal Association, which had challenged the rules in the Supreme Court.
The court rejected the government’s request to stay the Supreme Court’s ruling for the time being, saying that it would instead decide the case finally and without delay. “No, no. We would like to decide this matter once and for all. It is better that we decide such matters without delay,” the ICC said when Solicitor General Tushar Mehta sought a stay of implementation of the ruling. The bench observed that the matter raises questions of great constitutional importance.
“The issue is of paramount importance, and it is appropriate for the Supreme Court to lay down the law,” the court said, adding that the concerns cited by the Supreme Court were also “very important.”
During the session, the court stressed the need to achieve a balance between combating misleading information and protecting constitutional freedoms. The council said: “The issue here is how to balance the two points of view – it is about balancing without compromising constitutional values.”
The authority noted concerns about the role of digital platforms in amplifying harmful content. “Some of these digital platforms, the way they behave…some of them are dangerous,” the bench observed after referring to the illustrations shown to it by the Union government.
The CJI noted that misinformation circulating online is no longer limited to harming individuals. “They were destroying personal lives, and now they are harming the nation.”
The court noted that any regulatory framework must clearly define the responsibilities of all stakeholders. “There need to be very clear and specific guidelines, but shifting the entire burden onto the system without corresponding commitments to platforms and individuals is something that needs to be considered.”
The case relates to Rule 3(1)(b)(5) of the Information Technology Rules, as amended in 2023, which granted the government notice to the Fact-Checking Unit to identify online information about the government that is “fake, false or misleading”.
The Bombay High Court struck down the provision in September 2024, holding that it was unconstitutional and could have a chilling effect on freedom of expression, as it effectively made the government a “judge in its own case.”
The Supreme Court ordered the defendants to submit their counter-affidavits within four weeks and referred the matter for hearing after six weeks before a three-judge bench.
