Karnataka should have refrained from operationalising its fact-check unit to combat misinformation in social media on the grounds of constitutional morality even though there is no legal bar on it, senior advocate and two time Additional Solicitor General (ASG) Sanjay Jain told Moneycontrol.
He said “If we approach this question from the perspective of constitutional morality, then certainly the state legislature of Karnataka should have refrained from doing it (operationalising fact check unit). However, technically speaking, nothing in the Constitution prevents Karnataka from bringing such a law, merely on account of the fact that SC has passed a stay order against the central government.”
Constitutional morality refers to the principles and values underlying a constitution that act as a guide to both the government and the citizen.
The Karnataka government's fact-checking unit, set up to combat fake news and misinformation, especially on social media, began operations in March 2024. However, in the same month, the apex court stayed the notification operationalising the Union government’s fact check unit, giving rise to the question of whether states could implement their fact check units while the highest court of the country has stopped the operation of the central government’s unit.
What is the controversy about?
On January 16, 2023, the Ministry of Information and Technology had said in a proposed amendment to the Information Technology Rules, 2021, that news identified as fake or false by the Press Information Bureau's (PIB) fact check unit needs to be removed from social media platforms.
The amendment to the rules asked social media platforms such as X (formerly Twitter), Facebook and YouTube to “make reasonable" efforts to not "host, display, upload, modify, publish, transmit" such information identified by PIB. The intermediaries are required to do the due diligence for them to enjoy safe harbour provisions of the IT Act 2000, wherein intermediaries enjoy legal immunity from third party content they host.
This led to widespread discontent and a bunch of petitions were filed in the Bombay High Court in January 2023 challenging the amended IT Rules against fake news pertaining to the government on social media.
These petitions were heard for a year, by a two-judge bench of the Supreme Court. During the period of the hearing the central government had assured that the fact check unit would not be implemented. The two-judge bench of the HC delivered a split verdict on January 31, 2024. The matter was then referred to a third judge, who in March 2024 refused to stay the fact check unit after noting the assurances of the government. Days after the Bombay HC refused to stay the unit, the Union government on March 20 notified the fact check unit. This was challenged in the SC as the Bombay HC was yet to decide on the unit’s constitutional validity. The SC on March 21 stayed the operation of the fact check unit.
The SC held, “Quite apart from the statement of the Union of India which held the field during the pendency of the proceedings before the High Court, the challenges to the validity of Rule 3(1)(b) (v) involve serious constitutional questions.”
Speaking of the SC order, Jain said, “The apex court stayed the notification (of the fact check unit) taking note of the fact that the Bombay High Court was still hearing the case and it is crucial as it pertains to freedom of speech. However, the court said that they were not expressing anything on the merits of the case”.
According to the senior advocate, since the stay is specific to the case that is currently ongoing in the Bombay HC and not a general stay of fact check units per say, there is no bar on the states from operationalising fact check units. He said, “The Supreme Court said that judicial propriety demands that there should be a stay while the matter is being heard by the Bombay HC. However, the order of the Supreme Court has not contemplated or visualised any other law or rule, which may have been passed by Karnataka or any other state government. Thus, it does not bind anyone else other than the central government”.
Jain however noted that, if and when the Karnataka fact check unit is challenged before the high court, and asks for a stay on its operations, the SC’s order will come in handy. He said, “Even though it is not a direct embargo on the Karnataka fact check unit, this Supreme Court order can be taken benefit of, can be weighed as a persuasive tool by any person who may opt to challenge the Karnataka legislation”.
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