Bombay High Court

New Broadcast And Digital Association ... vs Editors Guild Of India on 26 September, 2024

Bench: A. S. Gadkari, Neela Gokhale

2024:BHC-OS:14750-DB                           Kunal Kamra v Union of India & Connected matters
                                                                          oswpl-9792-2023-J.doc




                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                ORDINARY ORIGINAL CIVIL JURISDICTION
                                    WRIT PETITION (L) NO. 9792 OF 2023


                 Kunal Kamra,
                 Indian inhabitant, aged 34 years, Residing
                 at C-33, Kataria Colony, Caddel Road,
                 Mahim,
                 Mumbai 400 016.                                                     ...Petitioner


                         ~ versus ~


                 Union of India,
                 Represented by the Secretary, Ministry of
                 Electronics and Information Technology,
                 Having its office at Electronics Niketan, 6
                 CGO Complex, Pragati Vihar, Lodhi Road,
                 New Delhi 110 003.                                               ...Respondent


                                                     WITH

                                   WRIT PETITION (L) NO.14955 OF 2023


                 Editors Guild of India,
                 Having their registered office at B-62
                 Gulmohur Park (first floor),
                 New Delhi 100 049.                                                  ...Petitioner


                         ~ versus ~


                 1.    Union of India,
                       Ministry of Electronics and Information
                       Technology, Having office at
                       Electronics Niketan, 6 CGO Complex,
                       Pragati Vihar, Lodhi Road,
                       New Delhi 110 003.
                                                     Page 1 of 8
                                               26th September 2024


                ::: Uploaded on - 26/09/2024                         ::: Downloaded on - 26/09/2024 21:30:44 :::
                                Kunal Kamra v Union of India & Connected matters
                                                          oswpl-9792-2023-J.doc


 2.    Union of India,
       Ministry of Law and Justice, Having
       office at 3rd floor, C Wing, Lok Nayak
       Bhavan, Khan Market,
       New Delhi 110 003.

 3.    Union of India,
       Ministry of Information and
       Broadcasting, Having office at Shastri
       Bhavan, New Delhi 110 003.                                ...Respondents


                               WITH
              INTERIM APPLICATION (L) NO.17704 OF 2023
                                 IN
                 WRIT PETITION (L) NO.14955 OF 2023

 1.    News Broadcasters & Digital
       Association,
       Through its Secretary General,
       Mrs Annie Joseph, Age - 67 years,
       Registered Office at: FF-42, Omaxe
       Sqaure, Commercial Centre, Jasola,
       New Delhi 110 025.

 2.    Bennett, Coleman & Company Limited,
       Through its Authorized Signatory
       Mr Sanjay K Agarwal, Age - 54 years,
       Having Office at Trade House, Ground
       Floor, Kamala Mills Compound,
       Senapati Bapat Marg, Lower Parel
       West, Mumbai 400 013.

 3.    M/s TV 18 Broadcast Limited,
       Through its Authorized Signatory
       Mr Satyajit Sahoo, Age - 39 years,
       Having Office at Empire Complex, 414,
       Senapati Bapat Marg, Lower Parel
       West, Mumbai 400 013.
                                                                    ...Applicants
                  In the matter between

 Editors Guild of India,                                             ...Petitioner
 Having their registered office at B-62
 Gulmohur Park (first floor),
                                    Page 2 of 8
                               26th September 2024


::: Uploaded on - 26/09/2024                         ::: Downloaded on - 26/09/2024 21:30:44 :::
                                Kunal Kamra v Union of India & Connected matters
                                                          oswpl-9792-2023-J.doc

 New Delhi 100 049.


           ~ versus ~


 1.       Union of India,
          Ministry of Electronics and Information
          Technology, Having office at
          Electronics Niketan, 6 CGO Complex,
          Pragati Vihar, Lodhi Road,
          New Delhi 110 003.
      .
 2.       Union of India,
          Ministry of Law and Justice, Having
          office at 3rd floor, C Wing, Lok Nayak
          Bhavan, Khan Market,
          New Delhi 110 003.

 3.       Union of India,
          Ministry of Information and
          Broadcasting, Having office at Shastri
          Bhavan, New Delhi 110 003.                             ...Respondents

                                     WITH
                       (CIVIL APPELLATE JURISDICTION)
                       WRIT PETITION NO.7953 OF 2023



 Association of India Magazines,
 Registered office at E-3, Jhandewalan
 Estate, New Delhi 110 055.
 Through its President Srinivasan B, R/O
 Gemini House, Old No.58, new No. 36, 3rd
 Main Road, Gandhinagar, Adyar Chennai
 600 020.                                                            ...Petitioner


           ~ versus ~


 Union of India,
 Through the Secretary Ministry of
 Electronics and Information Technology,
                                    Page 3 of 8
                               26th September 2024


::: Uploaded on - 26/09/2024                         ::: Downloaded on - 26/09/2024 21:30:44 :::
                                Kunal Kamra v Union of India & Connected matters
                                                          oswpl-9792-2023-J.doc

 Having office at Electronics Niketan, 6 CGO
 Complex, Pragati Vihar, Lodhi Road,
 New Delhi 110 003.                                               ...Respondent


 A PPEARANCES

 For the Petitioner in               Mr Navroz Seervai, Senior Advocate,
 WPL/9792/2023.                           with Darius Khambata, Senior
                                          Advocate, Arti Raghavan,
                                          Vrinda Bhandari, Gayatri
                                          Malhotra, Abhinav Sekhri &
                                          Tanmay Singh, i/b Meenaz
                                          Kakalia

 For the Petitioner in               Mr Gautam Bhatia, with Aditi
 WP/7953/2023.                            Saxena.


 For Applicant in                    Mr Arvind Datar, Senior Advocate,
 IAL/17704/2023.                          with Nisha Bhambani, Rahul
                                          Unnikrishnan & Bharat
                                          Manghani, i/b Gautam Jain.


 For respondent-UOI.                 Mr Tushar Mehta, Solicitor General,
                                          with Devang Vyas, Additional
                                          Solicitor General, Rajat Nair,
                                          Gaurang Bhushan, Aman
                                          Mehta, DP Singh, A.M.Sethna,
                                          Ankit Lohia, Savita Ganoo,
                                          Sheelang Shah, Anusha Amin,
                                          Vaibhavi Choudhary,
                                          Devanshu Gupta in all
                                          matters.



                                      CORAM : A. S. Gadkari &
                                              Dr. Neela Gokhale, JJ.

DATE : 26th September 2024

FINAL JUDGMENT :-

1) The validity of an amendment of 6th April 2023 to Rule 3(1)

(b)(v) of the Information Technology (Intermediary Guidelines and

26th September 2024

Kunal Kamra v Union of India & Connected matters oswpl-9792-2023-J.doc

Digital Media Ethics Code) Rules, 2021 ("the amended IT Rule")

was the subject matter of challenge in this batch of writ petitions.

2) By Judgment and Order dated 31 st January 2024, Justice

G.S.Patel (as his Lordship then was) struck down the amended IT

Rule 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 I.T. Act of 2000") and also being in

violation of the principles of natural justice.

3) One of us (Dr. Neela Gokhale, J.) upheld the validity of the

amended Rule holding the same as not violative of Articles 14 and

19(1)(a) of the Constitution of India. The said amended I.T. Rule

was neither 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.1 It was held that the exemption under Section

79 of the I.T. Act of 2000 would cease to operate only if the

offensive information as provided in the amendment to the Rules

under challenge affected any restriction under Article 19(2) of the

Constitution of India.

4) Thus, there was a difference of opinion between the Judges

of the Division Bench namely, Justice G.S.Patel (as he then was)

and one of us Dr. Justice Neela Gokhale. It was agreed that there

was disagreement on every aspect of the matter. The point of

1 2015 INSC 257.

26th September 2024

Kunal Kamra v Union of India & Connected matters oswpl-9792-2023-J.doc

difference therefore was, whether the impugned Rule was ultra

vires and unconstitutional.

5) In view of the difference of opinion with regard to the

constitutionality of the amended Rule, the Division Bench directed

the Registry to place the matter before the Hon'ble The Chief

Justice of this Court for appropriate directions.

6) Pursuant to the above reference order, the Hon'ble The

Chief Justice referred these proceedings for the opinion of a third

Judge namely, Justice A.S.Chandurkar. He has rendered his opinion

dated 20th September 2024 as under:

"N] Conclusions:

56] Having considered the matter extensively on the points of difference, I would conclude by opining that I am in agreement with the view expressed by Patel J that -

(a) Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 is violative of the provisions of Article 14, Article 19(1)(a) and Article 19(1)(g) of the Constitution.

(b) The said Rule as amended is ultra vires the Act of 2000.

(c) The expression "knowingly and intentionally" does not apply to the amended portion of Rule 3(1)(b)(v) in relation to the business of the Central Government.

(d) The expression "fake or false or misleading" in absence of it being defined is vague and overbroad.

26th September 2024

Kunal Kamra v Union of India & Connected matters oswpl-9792-2023-J.doc

(e) The impugned Rule cannot be saved either by reading it down or on the basis of any concession made in that regard of limiting its operation.

(f) The test of proportionality as laid down in Gujarat Mazdoor Sabha (supra) is not satisfied by the impugned Rule.

(g) Given the totality of the above, the impugned Rule also results in a chilling effect qua an intermediary.

In my opinion therefore Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 is liable to be struck down.

57] xxxxxx

58] All the writ petitions be now placed before the Division Bench for being decided in accordance with the provisions of Chapter-I, Rule 7 of the BHCAS Rules and Clause 36 of the Letters Patent."

7) Accordingly, pursuant to the opinion rendered by the

3rd learned Judge, the Petitions are placed before us, for

pronouncement of the final judgment for disposing of the matters

in accordance with the Rules.

8) Considering the opinion rendered by the 3rd learned

Judge, Hon'ble Shri Justice A.S. Chandurkar and in view of the

majority opinion, amendment dated 6th April 2023 to Rule 3(1)(b)

(v) of the Information Technology (Intermediary Guidelines and

Digital Media Ethics Code) Rules, 2021 is declared

unconstitutional and is struck down.

26th September 2024

Kunal Kamra v Union of India & Connected matters oswpl-9792-2023-J.doc