New Delhi: The Supreme Court on Thursday issued a stay order on the government's notification setting up Fact Check Units (FCU) under the 2023 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules (IT Amendment Rules 2023) pending the final decision of the Bombay High Court.

The Bombay High Court is now seized with the challenges to the amendment in the IT rules.

A bench comprising Chief Justice DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra was hearing the Special Leave Petitions filed by Kunal Kamra, Editors Guild of India and Association of Indian Magazines challenging the order of the Bombay High Court which refused to stay the implementation of the IT Rules.

On Wednesday, the Ministry of Electronics and Information Technology notified the Press Information Bureau as the FCU.

The Fact Finding Unit can take down any information posted on social media that has been flagged as fake or false about the business of the Union government.

As per the amendment rules, any organisation/individual failing to comply, will lose the 'safe harbour' immunity against legal proceedings arising out of such information posted.

The Supreme Court, without expressing its views on the merits of the pending challenges to the rules before the Bombay High Court, said there exist prima facie grounds for staying the March 20 notification, which makes the impugned rules operational.

The Supreme Court set aside the March 11 order of the Bombay High Court refusing to stay the implementation of the rules and the consequential order allowing the Centre to notify the FCU.

The top court observed that the challenge to the rules raises "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.

Appearing on behalf of the petitioner comedian Kunal Kamra, Senior Advocate Darius Khambata submitted that the absence of any independent fact check unit for everybody and present only for the central govt is arbitrary.

Khambata also argued that FCU cannot be dependent upon the Union's discretion in deciding what is false or not.

The elections are around the corner, the FCU would become a tool for the Union to control what information goes out to the voters, the senior advocate said.

The Supreme Court after hearing the parties finally stayed the notification of the FCU under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 (IT Amendment Rules 2023).

(With UNI inputs)