On Thursday, the Supreme Court stayed the Centre’s move to notify the Fact Check Unit [FCU] under the Press Information Bureau, following arguments by the counsel for Kunal Kamra and the Editors Guild of India that flagged concerns over the freedom of expression. The top court set aside a ruling by a single-judge bench of the Bombay High Court that had refused to grant an interim stay, which noted that there would be “no irreparable loss” if the FCU was allowed to be established.

Under the Information Technology Rules (2021), introduced last year by the Ministry of Electronics and Information Technology, the Centre had proposed the setting up of a Fact Check Unit that would identify “fake news” about the Union government on social media and flag it to social media intermediaries. Those companies would then have to take such content down if they wanted to retain ‘safe harbour’ legal immunity.

Critics have pointed out that the new rules—and the FCU in particular—will have a “chilling effect” on free speech. Last April, Kamra had filed a petition in the Bombay High Court stating that the new IT Rules were unconstitutional and “a direct assault by the respondent authorities on freedom of thought, speech and expression, referred to by the Supreme Court as one of the three pillars of our Constitution.”

That petition led to a split verdict, and last week, a third Bombay High Court judge refused to grant an interim stay on the amendment, allowing the Centre to proceed with the notification of the FCU. In the Supreme Court, Kamra’s advocate Darius Khambata argued that the FCU let the Centre control the information to be consumed by the public. “The rules make Central Govt the arbiter of truth regarding facts relating to itself,” he said, as reported by LiveLaw.

The Supreme Court refrained from discussing the merits of the challenge pending in the Bombay High Court, but said that there exist prima facie grounds for staying the 20 March notification. The three-Judge bench also observed that the challenge raised serious constitutional questions. “The impact of Rule 3(1)(b)(v), as amended in 2023, on the fundamental right to freedom of speech and expression would fall for analysis by the High Court,” the Court observed.