Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. CHANDURKAR, J.
Kunal Kamra - Applicant
In the matter between
Kunal Kamra - Petitioner
Versus
Union of India - Respondent
Interim Application (L) No.3967 Of 2024 In Writ Petition (L) No.9792 Of 2023 With Interim Application (L) No.4178 Of 2024 In Writ Petition (L) No.14955 Of 2023 With Interim Application (ST) No.3819 Of 2024 In Writ Petition No.7953 Of 2023
Decided On : 11-03-2024
Rule 3(1)(b)(v) - Information Technology Act - Section 98 of the Code of Civil Procedure 1908, Clause 36 of the Letters Patent of the Bombay High Court - Summary of Acts and Sections: The court discussed the validity of Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 as amended by Rule 3(i)(II)(A) and (C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023. The court considered the divergent views of the judges and the implications of the amendment on the constitutional rights and the empowering provision under the parent statute.
Fact of the Case:
The court considered the validity of Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 as amended by Rule 3(i)(II)(A) and (C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023. The applicants sought to restrain the respondents from notifying the Fact Check Unit (FCU) until the challenge to the rule was decided.
Finding of the Court:
The court found that while there was an arguable case regarding the validity of the amended rule, the balance of convenience favored the respondents. The court opined that the FCU's notification would not result in irreversible consequences and that no grave and irreparable loss was shown to result from its notification.
Issues: The issues revolved around the validity of the amended Rule 3(1)(b)(v) and the implications of its notification on the constitutional rights and larger public interest.
Ratio Decidendi: The court's decision was based on the balance of convenience and the lack of irreversible consequences from the FCU's notification, as well as the absence of grave and irreparable loss shown to result from its notification.
Final Decision: The court opined that no case was made out to direct the continuation of the statement made on behalf of the respondents that the FCU would not be notified as an order of the Court. The Interim Applications were to be placed before the Referral Bench for appropriate orders.
Certainly. Based on the provided legal document, the key points are as follows:
The court's decision was primarily based on the balance of convenience, emphasizing that the notification of the Fact Check Unit (FCU) would not lead to irreversible consequences, and no grave or irreparable loss was demonstrated from its notification (!) (!) .
The case involves a challenge to the validity of Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, as amended in 2023. Divergent judicial opinions exist on whether the rule is valid or ultra vires, and this reference was made to seek an opinion on the points of difference (!) (!) .
The interim relief sought by the applicants was to restrain the respondents from notifying the FCU until the challenge to the rule was decided. The court noted that the previous statements made on behalf of the Union of India, indicating that the FCU would not be notified pending the case, should be continued until the final decision, but this was subject to the opinion of the reference judge (!) (!) (!) .
The court observed that the statement recorded on 27/04/2023, which indicated that the FCU would not be notified until a specified date, had been continued through various orders and was still in effect. The continuation of this statement was considered appropriate until the reference judge rendered an opinion (!) (!) .
The applicants argued that the rule's provisions, especially concerning vague terms like "fake, false or misleading" and the broad scope of "business of the Central Government," raised constitutional concerns and could lead to arbitrary use. They also contended that the rule violated fundamental rights and that existing mechanisms could address concerns during the interim period (!) (!) (!) (!) (!) .
The respondents contended that the amended rule was a proportionate and least restrictive measure aimed solely at a specific aspect of government business, and that no intermediary had challenged the rule. They also emphasized that the rule was within the statutory framework and that the FCU had not yet been notified, thus no immediate harm was demonstrated (!) (!) .
The court acknowledged the arguable case regarding the validity of the rule but found that the balance of convenience favored not restraining the notification of the FCU at this stage, especially given the absence of irreversible harm and the importance of the larger public interest (!) .
Ultimately, the court opined that no case had been made out to continue the statement that the FCU would not be notified as an order of the Court during the pendency of the challenge. The interim applications were to be referred to the appropriate bench for further orders, with the court emphasizing that its opinion was only a prima facie view based on the current record and that the final decision rested with the designated reference judge (!) .
These points encapsulate the core legal and factual issues addressed in the document, highlighting the procedural posture, arguments, and the court's reasoning regarding the interim relief and the validity of the challenged rule.
JUDGMENT :
1. The present proceedings have been placed for rendering an opinion in accordance with the provisions of Chapter-I, Rule 7 of the Bombay High Court Appellate Side Rules, 1960 read with Section 98 of the Code of Civil Procedure 1908 and Clause 36 of the Letters Patent of the Bombay High Court in view of the divergent decisions rendered on 31/01/2024 by the learned Judges constituting the Division Bench that heard Writ Petition (L) No.9792 of 2023, Writ Petition (L) No.14955 of 2023 and Writ Petition No.7953 of 2023. In the aforesaid writ petitions the validity of Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (for short, the Rules of 2021) as amended by Rule 3(i)(II)(A) and (C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 (for short, the Amendment Rules of 2023) had been challenged. G.S. Patel J struck down the amendment as made in 2023 to Rule 3(1)(b) (v) of the Rules of 2021 and proceeded to allow the writ petitions. Dr. Neela Gokhale J held that the impugned Rule was valid and proceeded to dismiss the writ petitions. It is in the said backdrop that these writ petitions have been placed for rendering an opinion on the point/points of difference expressed by the learned Judges constituting the Division Bench.
Prelude to the reference:
2. After the divergent views were expressed by the learned Judges, the petitioners filed Interim Applications in each Writ Petition with a prayer to injunct the respondents from notifying the Fact Check Unit – FCU as proposed to be constituted for a period of four weeks. On 06/02/2024, the said Interim Applications were placed before the Division Bench since a request was made to re-constitute the said Division Bench to hear the Interim Applications. To enable written submissions to be filed, the proceedings were adjourned to 08/02/2024. On 08/02/2024, the following order was passed:-
1. On 31st January 2024 we each rendered separate opinions on the main challenges before us. One of us, GS Patel, J held for the Petitioners. The other Neela Gokhale, J held that the Petitions ought to be dismissed.
2. We have in our previous order briefly noted the points of divergence. Indeed, at the cost of repetition there is divergence on every aspect.
3. Before us today are three Interim Applications for continuance of what might best be described as a statement made on behalf of the Union of India. This was first made in April 2023 and has been continued since. There have been at least a dozen such continuances. This was not an injunction granted on merits at a hearing on an application for interim relief. It was simply a statement noted and one that continued. We decided the main challenge in the backdrop of this statement being continued.
4. Mr Mehta, learned Solicitor General of India appearing for Union of India, states that he does not have instructions to continue that statement till the points of difference on the Writ Petitions are decided by the third Judge to whom these differences are referred for his/her opinion.
5. We accept as a correct principle in law that once the third Judge has rendered his opinion on the points of distinction between us, we would have to reassemble to pronounce the judgment per majority.
6. The question is as to the interim relief and whether we can or even are both agreed that the previous statement must be compelled to continue until the third Judge renders his opinion. There is no agreement between us on a continuance until the end of the reference to the third Judge on the differences in opinion on the main Writ Petitions.
7. These Interim Applications would, in our view, need to be decided by the referenced Judge as well since we are not between ourselves in agreement between us on the continuance of the previous status.
8. We are however agreed that independent reasons or opinions within opinions in regard to interim relief
The amended Rule 3(1)(b)(v) is unconstitutional as it violates Articles 14, 19(1)(a), and 19(1)(g) of the Constitution, is vague, ultra vires, and imposes disproportionate restrictions on free expres....
The impugned rule does not violate constitutional rights as it aims to curb misinformation while preserving the right to free speech, establishing clear parameters around false content concerning gov....
The 2023 amendment to regulate online content was held unconstitutional for violating fundamental rights, lacking clear guidelines, and enabling arbitrary government censorship.
Digital intermediaries are statutorily exempt from liability for third-party content. They are not required to adjudicate the veracity or defamatory nature of online publications until presented with....
Freedom of speech is not absolute and inherently excludes harmful communication. Courts must apply the 'vagueness avoidance' doctrine, narrowly construing penal statutes to require proof of specific ....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
