SC stays Centre’s order on Fact Check Unit, says constitutional issues involved
The plan to set up the unit, notified through an amendment to the IT Rules in April 2023, was challenged in the Bombay high court for being unconstitutional, ultra vires (going beyond the remit) of the parent act (Information Technology Act, 2000)
New Delhi: The Supreme Court on Thursday stayed the Centre’s order notifying the Press Information Bureau’s (PIB) Fact Check Unit (FCU) as the official fact-checking body for online content related to the central government’s business, observing that the issue involves “serious constitutional issues” that are still pending before the Bombay high court.

“There is a prima facie case for staying the operation of Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 pending proceedings before the Bombay high court… We direct pending disposal by the high court, the notification of March 20 shall remain stayed,” said a bench headed by Chief Justice of India (CJI) DY Chandrachid.
“The challenge to Rule 3(1)(b)(v) involves serious constitutional questions. The impact of Rule 3(1)(b)(v) on the fundamental rights of freedom of speech and expression would fall for analysis by the high court,” the bench, also comprising justices JB Pardiwala and Manoj Misra, said.
The order came on a petition by comedian Kunal Kamra, Editors Guild of India (EGI) and Association of Indian Magazines who challenged the Bombay high court’s March 11 order, declining to stop the central government from notifying the PIB’s FCU as the fact-checking body under an amendment made in April 2023 to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
The plan to set up the unit, notified through an amendment to the IT Rules in April 2023, was challenged in the Bombay high court for being unconstitutional, ultra vires (going beyond the remit) of the parent act (Information Technology Act, 2000), and for causing a chilling effect on free speech online.
On January 31, a division bench in the Bombay High Court delivered a split verdict on the constitutionality of the fact check amendment. The matter was referred to the third judge who is yet to decide on the matter. However, last week, the third judge opined that the constitution of the FCU itself need not be stayed, and referred the matter back to the division bench for operative order. Citing majority, the division bench on March 13 effectively permitted MeitY to notify the FCU even as the main matter remains undecided.
In the Supreme Court, the three petitioners questioned the Centre’s haste to notify the PIB as FCU under Rule 3(1)(b)(v). The petitioners reasoned that the amended rule notified in April 2023 has a chilling effect on free speech as it allows only one version of truth – that provided by Centre – as the only truth and this could have a serious impact on the exchange of views and comments during the ongoing election process.
Kamra, in his petition filed through advocate Pritha Srikumar Iyer said, “While the IT (Intermediary) Rules are facially directed at intermediaries, it is users (and the information created and hosted by them on various platforms) that are the subject of the impugned Rules.”
“The rule is extremely broad in its sweep, and would operate to muzzle speech against the central government,” the petition said, adding, “Should the rules come into operation, they would apply to any content hosted by intermediaries that contradict facts, figures or data of the government.”
Solicitor general Tushar Mehta told the Supreme Court that the rule under challenge does not require intermediaries to take down content as the FCU will alert them on any “false, fake or misleading ” content involving the business related to the Central government.
According to him, it was up to the intermediary to issue a disclaimer. If they do not choose to give a disclaimer, in the event an aggrieved person approaches a court of law seeking action against the intermediary for defamation or any similar proceedings, the social media intermediaries will lose their protection from prosecution if they fail to take any action on FCU’s intimation.