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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. CHANDURKAR, J.
Kunal Kamra – Petitioner
Versus
Union of India, Rep. by the Secretary, New Delhi – Respondent
Writ Petition (L) Nos. 9792, 14955 of 2023, Interim Application (L) No. 17704 of 2023, Writ Petition No. 7953 of 2023
Decided On : 20-09-2024
| Table of Content |
|---|
| 1. (Para 1 , 2 , 3 , 4 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 37 , 39 , 46 , 56 , 58) |
| 2. disagreement on executive authority in determining information validity. (Para 5 , 6) |
| 3. issues of proportionality and chilling effect. (Para 7 , 8) |
JUDGMENT :
A.S. CHANDURKAR, J.
OPINION:
| S. No. | Particulars |
| (A) | Facts leading to the reference |
| (B) | Judgments of the Division Bench |
| (C) | Consideration of interim relief |
| (D) | Proceedings before the Supreme Court |
| (E) | Submissions on behalf of the Petitioner in WP (L) No. 9792 of 2023 |
| (F) | Submissions on behalf of the Petitioner in WP (L) No. 14955 of 2023 |
| (G) | Submissions on behalf of the Petitioner in Writ Petition No. 7953 of 2023 |
| (H) | Submissions on behalf of the applicants in Interim Application (L) No. 17704 of 2023 |
| (I) | Submissions on behalf of Union of India |
| (J) | Scope under Clause 36 of the Letters Patent |
| (K) | Points on which either there is no difference of opinion or an opinion is expressed only by one learned Judge of the Division Bench |
| (L) | Relevant constitutional and statutory provisions |
| (M) | Opinion on the points of difference. |
| (a) Article 19(1)(a) and Article 19(2) of the Constitution of India. | |
| (b) Violation of Article 19(1)(g) read with Article 19(6). | |
| (c) Violation of Article 14 as the Government itself is the final arbiter in its own cause. | |
| (d) Knowingly and intentionally. | |
| (e) Expression “fake or false or misleading.” | |
| (f) The impugned Rule being ultra-vires the Act of 2000. | |
| (g) Chilling effect of the amended Rule. | |
| (h) Saving the impugned Rule by reading it down as well as on the basis of concession of the law officer. | |
| (i) Aspect of proportionality. | |
| (N) | Conclusions |
1. The present proceedings arise pursuant to the reference made under 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 amended Letters Patent of the Bombay High Court so as to render an opinion on the points of difference recorded by the learned Judges constituting the Division Bench that heard the present batch of writ petitions.
(A) Facts leading to the reference:
2. The validity of Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“the Rules of 2021”, for short) as amended on 06/04/2023 is the subject matter of challenge in this batch of writ petitions. The proceedings were decided on 31/01/2024 by the Division Bench of G.S. Patel & Dr. Neela Gokhale, JJ. G. S. Patel, J (as his Lordship then was) struck down the amendment to Rule 3(1)(b)(v) of the Rules of 2021 as being ultra vires the provisions of Articles 14, 19(1)(a) and 19(1)(g) of the Constitution of India, Section 79 of the Information Technology Act, 2000 (“the Act of 2000” for short) and also being in violation of the principles of natural justice. Dr. Neela Gokhale, J. upheld the validity of the said Rule holding the same to be not violative of Articles 14 and 19(1)(a) of the Constitution of India. She held that the said Rule was not ultra vires the provisions of the Act of 2000 nor was it contrary to the judgment of the Supreme Court in Shreya Singhal vs. Union of India , 2015 INSC 257 . It was also held that the exemption under Section 79 of the Act of 2000 would cease to operate only if the offensive information as provided in the said Rule affected any restriction under Article 19(2) of the Constitution of India.
(B) Judgments of the Division Bench:
3. At the outset, it would be necessary to refer to the differing judgments of the learned judges constituting the Division Bench since the Reference Court has been called upon to hear the parties on the point/points of difference in the opinions rendered by t
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.
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 resul....
The court established that vague and overbroad regulations can violate constitutional rights and be struck down as unconstitutional.
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....
The increased fees for information applications under the Right to Information Act do not infringe upon constitutional rights and are within the legislative authority, emphasizing that hardship alone....
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