Bombay High Court
Association Of Indian Magazines ... vs Union Of India Thr. Secretary on 6 February, 2024
Author: Neela Gokhale
Bench: G.S. Patel, Neela Gokhale
1-OSIAL-3967-2024-IN-OSWPL-9792-2023++.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 3967 OF 2024
IN
WRIT PETITION (L) NO. 9792 OF 2023
Kunal Kamra ...Applicant
In the matter between
Kunal Kamra ...Petitioner
Versus
State of Maharashtra & Ors ...Respondents
WITH
SHEPHALI WRIT PETITION (L) NO. 14955 OF 2023
SANJAY
MORMARE
WITH
Digitally signed by
SHEPHALI
SANJAY
MORMARE
Date: 2024.02.06
INTERIM APPLICATION (L) NO. 17704 OF 2023
16:25:15 +0530
IN
WRIT PETITION (L) NO. 14955 OF 2023
Editors Guild of India ...Petitioner
Versus
State of Maharashtra & Ors ...Respondents
WITH
WRIT PETITION NO. 7953 OF 2023
(CIVIL APPELLATE JURISDICTION)
Association of India Magazines ...Petitioner
Versus
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1-OSIAL-3967-2024-IN-OSWPL-9792-2023++.DOC
Union of India & Ors ...Respondents
Mr Navroz Seervai, Senior Advocate, with, Mr Darius
Khambata, Senior Advocate, with Arti Raghavan,Vrinda
Bhandari, Gayatri Malhotra, Abhinav Sekhri, Tanmay Singh i/b
Meenaz Kakalia, for the Petitioner in Writ Petition (L) No 9792
of 2023.
Mr Shadan Farasat, with Hrishika Jha & Natasha Maheshwari, i/b
Bimal Rajsekhar for the Petitioner in WPL/14955/2023.
Mr Arvind Datar, Senior Advocate, with Nisha Bhambani, Rahul
Unnikrishnan & Bharat Manghani, i/b Gautam Jain, for the
Applicant in IAL/17704/2023.
Mr Gautam Bhatia, with Radhika Roy, i/b Aditi Saxena for the
Petitioner in WP/7953/2023.
Mr Tushar Mehta, Solicitor General, (appeared online) with
Devang Vyas, Additional Solicitor General, Rajat Nair, Gaurang
Bhushan, Aman Mehta, DP Singh, Savita Ganoo, Anusha
Amin, Vaishnavi, Bhuvanesh Kumar, Additional Secretary,
Vikram Sahay, Diretor & Ritesh Kumar Sahu, Scientist D, for
the Respondent-UoI in all matters.
CORAM G.S. Patel &
Neela Gokhale, JJ.
DATED: 6th February 2024
PC:-
1. On 31st January 2024, the two of us delivered separate
opinions. Each was entirely divergent on all points. The question
before us was about the constitutionality of the 2023 Amendment to
3(i)(b)(v) of the Information and Technology (Intermediary
Guidelines and Digital Media Ethics Code) Rules 2023.
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2. At the time when we pronounced our separate opinions, there
was a question of continuing the statement that was made initially
on behalf of the Union some time ago and was continued
periodically, sometimes at the request of the Union and after
September 2023 at our request while we were working on the
matter. In our order of 31st January 2023, we noted that the
statement had continued since April 2023 but that Mr Mehta,
learned Solicitor General, did not have instructions to continue this
indefinitely. As a matter of administrative courtesy to the Hon'ble
the Chief Justice and to the third Judge to whom the differences
would be referred, we said that it would have to continue for some
time but incorrectly observed that a substantive application for
further continuance would have to be made to the third Judge.
3. It seems that thereafter the Petitioners have filed this Interim
Application (L) 3967 of 2024. It was mentioned before the Hon'ble
the Chief Justice yesterday. The submission was whether to
constitute this Bench to hear this Interim Application. The
administrative direction approves that submission but draws
attention to Clause 36 of the Letters Patent, Rule 7 of Chapter I of
the Appellate Side Rules and Section 98 of the Code of Civil
Procedure 1908 ("CPC"), essentially that the points of
disagreement or difference must be noted.
4. Before us both sides agree that this is unnecessary since there
is disagreement on every aspect of the matter but if it comes to that
and for good order the question is whether the impugned Rule is or
is not ultra vires and unconstitutional. Challenges have been raised
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inter alia under Articles 19 and 14 of the Constitution of India and
there is also a challenge that Rule is ultra vires Section 79 of the
Information Technology Act 2000. We have stated this in the
broadest possible terms because it is in our view unnecessary to deal
with every subsidiary argument that is encompassed within these
parameters.
5. Mr Seervai has relied on a decision of a learned Single Judge
in Shekhar Narayan Shetty v Madhavlal Pittie & Ors1 to the effect that
where two Judges on Division Bench disagree, there is no judgment
properly so called but merely the two opinions. The third Judge also
does not pronounce judgment but renders his opinion as to which of
the two opinions was, in his or her view, correct. Then the matter is
placed before the Division Bench for pronouncement of a judgment
in accordance with the majority view. That stage is yet to be
reached. Mr Seervai's submission is that there is no judgment until
the opinion of the third Judge is received and the judgment is
pronounced per majority.
6. Mr Mehta on the other hand contests the formulation and
submits that apart from not having instructions to continue the
statement further, although some latitude is perhaps possible, his
instructions are to oppose the Interim Application. He states that he
will file and serve brief written submissions in response to the
Interim Application by tomorrow and requests that the matter be
taken up tomorrow or day after for a decision on the Interim
Application.
1 (2015) 5 BomCR 68 : (2015) 4 MhLJ 687.
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1-OSIAL-3967-2024-IN-OSWPL-9792-2023++.DOC
7. We want no further written submissions.
8. We will take up the matter on 8th February 2024 at 2.30 pm
on the question of continuance of the statement of Mr Mehta.
(Neela Gokhale, J) (G. S. Patel, J)
6th February 2024
