How can you assign absolute powers to FCU, HC asks Centre

The Bombay High Court questions the Indian government on why it is assigning absolute powers to a fact-checking unit, raising concerns over censorship.

Observing that in a democracy citizens have the right to question the government actions and the government is bound to respond to their questions, the Bombay high court on Friday sought to know from the Centre why it is assigning absolute and unquestionable powers to a fact checking unit (FCU).

12 March 2018, Mumbai: Kunal Kamra - Stand-up comedian . Photographed by Abhijit Bhatlekar/Mint

The HC’s observation came while hearing petitions filed by satirist Kunal Kamra, the Editors Guild of India, the Association of Indian Magazines, and the News Broadcasters and Digital Association, which had challenged the amended Information Technology Rules that empower the FCU to identify “fake or misleading” content about the Central government and its policies on social media platforms and direct the intermediaries to take it down.

Senior advocate Arvind Datar, representing the Association of Indian Magazines, and advocate Gautam Bhatia, appearing for the News Broadcasters and Digital Association, informed a division bench of justice Gautam Patel and justice Neela Gokhale that there already existed a fact checking and redressal mechanism against fake or misleading content and hence a restrictive and arbitrary mechanism like the FCU was not required.

After the bench was told that even in the offline mode or on print media, the content went through various levels of fact checking before it was published, the bench said it failed to understand the concern and anxiety of the government which prompted it to amend the IT Rules and give absolute powers to the FCU to decide on the falsity of content.

While noting that there was an assumption that what the FCU would say was incontrovertible and the ultimate truth as no parameters had been set to decide what was false or incorrect, the HC said though offline content went through a filtration process there was no such fact-checking filter for social media content and it would be needed at some point.

Questioning the Centre on its move to assign itself the right to decide what is fake, false and misleading without giving an opportunity to defend the content, the bench said, “It is not as if the citizens are saying that they have a right to lie; all that they are saying is they have the right to defend correctness of their position or statement.”

The bench also questioned whether any speculative content pertaining to some incidents as highlighted in the Centre’s affidavit or any prediction about the outcome of implemented policies or laws posted on social media would be perceived as misleading content by the FCU and be taken down.

Referring to advertisements being published by opposition parties in newspapers against government policies, the court sought to know if the same was reproduced on social media it could be termed as misleading against business of the government.

Only the courts had the power or authority to pronounce an order on the likelihood or probability of the content being fake or false, but similar powers were being assigned to the FCU, the HC added.

Hearing on the petitions will continue on July 27 when solicitor general Tushar Mehta, on behalf of the Centre, is likely to argue against the petitions. The Centre had assured the bench that the notification for FCU would not be issued till July 28.

The petitioners had challenged the constitutional validity of Rule 3 (1) (II) (A) and (C) of the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, stating that this would, in effect, amend Rules 3 (1) (a) and 3 (1) (b) (v) of the IT Rules, 2021, violating several Supreme Court judgments.