AIM welcomes SC decision not to stay Bombay HC order striking down govt Fact Check Unit

The Association of Indian Magazines (AIM), which was a petitioner challenging the constitutionality of the Government’s proposed Fact Check Unit (FCU), today welcomed the Supreme Court’s decision declining to stay the Bombay High Court judgment that had struck down the provision as unconstitutional.

Though notice has been issued and SC will be examining the issue in greater detail, but by refusing to stay the High Court’s ruling, the Supreme Court has ensured that the Union Government cannot operationalise the proposed FCU in the interim, preventing the implementation of a mechanism that would have granted the Central Government sweeping powers to determine what constitutes “fake”, “false”, or “misleading” information about its own affairs.

Under the amended Information Technology Rules, content flagged by the government’s designated Fact Check Unit could have been required to be taken down by digital intermediaries, failing which platforms risked losing their safe-harbour protections. This raised serious concerns within the media and civil society about the potential for executive overreach.

The provisions were particularly troubling because they vested the government with the authority to unilaterally determine the truthfulness of reporting about itself, with terms such as “fake”, “false”, and “misleading” remaining broadly defined. In effect, the government would have been placed in the position of being both the complainant and the arbiter in matters concerning scrutiny of its own actions.

“The Supreme Court’s decision not to stay the Bombay High Court judgment is an important safeguard for press freedom and democratic debate,” said Manoj Sharma, President of the Association of Indian Magazines and CEO, Publishing, India Today Group.

Anant Nath, former president of AIM and editor of Caravan magazine, further added “Allowing the government to unilaterally label reporting about its own functioning as ‘fake’ or ‘misleading’ would have created a deeply chilling effect on journalism.”

The Association of Indian Magazines was represented in the proceedings by Senior Advocate Arvind Datar, along with Advocates Apar Gupta and Vrinda Bhandari (AoR) and the Internet Freedom Foundation, who assisted in advancing the constitutional challenge against the rule.

The legal challenge arose after the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 introduced a provision empowering the Central Government to establish a Fact Check Unit to identify information relating to the “business of the Central Government” as “fake, false or misleading”.

Concerned about the constitutional implications of this provision, several petitioners approached the Bombay High Court, including, Association of Indian Magazines (AIM), Editors Guild of India, stand-up comedian Kunal Kamra, and other journalists and civil society stakeholders The petitioners argued that empowering the government to determine the truthfulness of reporting about itself could create a regime of state-controlled truth certification, undermining the constitutional guarantee of freedom of speech and expression under Article 19(1)(a).

In a landmark ruling in March 2024, the Bombay High Court struck down the amended IT Rules enabling the Fact Check Unit, holding that the provision violated constitutional protections for free speech.

The Court found that the rule imposed arbitrary and disproportionate restrictions on online expression and lacked adequate procedural safeguards. It further observed that permitting the government to label online content about its own affairs as “fake” or “misleading” could have a serious chilling effect on journalism and public discourse.