Defending the formation of a fact-checking unit (FCU), the Union government said in the Bombay High Court on July 24 that the right to know factually correct information and the right to not be misled were equally important as the right to freedom of speech and expression under Article 19(1)(a).
Stand-up artist Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines, have challenged the constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 that permit an FCU of the Union government to identify “fake or false or misleading” online content “related to the business of the Central Government” and demand its removal.
Tie-breaker judge Justice A.S. Chandurkar is hearing arguments in the case after a Division Bench of High Court delivered a split verdict on January 31, 2024.
Solicitor-General Tushar Mehta, for the Union government, said the FCU would prevent people from false information.
“This approach represents the least restrictive method to counteract fake, false, and misleading information. Private companies and individuals also maintain fact-checking units and the government is similarly justified in providing accurate information to the public. In many instances, the government acts as the adjudicator and beneficiary, such as in land disputes. However, in this context, I do not act as the adjudicator. My (government’s) role is simply to identify and highlight instances of falsehood or misinformation,” he said.
The petitioners completed their argument in April, contending that the amendment enables the government to be the “prosecutor, the judge, and in that loose sense, the executioner” of what constitutes the ‘truth’ online, thereby violating the cardinal principles of natural justice. They also pointed out that the “over-broad and vague” nature of the rules created a “chilling effect” on the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.
Mr. Mehta argued that the argument of “chilling effect” was incorrect. “Intermediaries can be summoned to appear before the court where the ultimate adjudication will be conducted by the court of law.”
Citing multiple examples of fake news and misinformation floating on social media, Mr. Mehta said there were many private companies which had fact-check units. “The private firms have FCU, including news organisations who partner with intermediaries to flag false information. If we [the Union government] do not fact-check, it will be a dereliction of duty. The government is also entitled to place correct information with the citizenry. There are several cases where the government is the adjudicator and the beneficiary such as, in the cases of land disputes, but here, I am not the adjudicator, I am only here to intimate and point out that something that is out there in a public forum, is fake or false or misleading,” he said.
He also pointed out Justice G.S. Patel’s point of view in the FCU amendment case. “Justice Patel said that intermediaries are not expected to be as irrational as they are making out to be.”
“We (government) are not the final arbiter here. Just like individuals, the government can also intimate. The FCU is a methodical way of doing that. And being a statutory regime, it has consequences. We are not the arbiter. The first arbiter is the intermediary, the final arbiter is a court of competent jurisdiction. The right to be informed correctly is necessarily inherent in my right under Article 21. Because, if somebody’s freedom of speech incites violence or threatens public order, it directly infringes my right under Article 21,” Mr. Mehta added.
The Centre will continue its arguments on Thursday, while the petitioners’ rejoinder is scheduled on July 29, 30, and 31.
