KUNAL KAMRA Vs. UNION OF INDIA

JUDGEMENT

(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 Sec. 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.

(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:-

(3.) The order dtd. 08/02/2024 passed by the Division Bench records that a statement was made initially on 27/04/2023 that the FCU as contemplated by Rule 3(1)(b)(v) as amended would not be notified until 05/07/2023. That statement was thereafter continued on various occasions during pendency of the proceedings and it was noted that no injunction was granted on merits. The order dtd. 08/02/2024 in paragraph 7 states that the Interim Applications would be required to be decided by the Reference Judge since the learned Judges constituting the Division Bench could not agree as to whether the status operating ought to be continued. In paragraph 8, it has been stated in clear terms that at no point of time were the applications for interim relief considered on merits and that the same were being pressed only after the conflicting views were rendered. In paragraph 11 of the said order, the point of difference as indicated on the question of interim relief was 'whether having regard to all circumstances, this previous statement should continue as an order of the Court'. The order dtd. 08/02/2024 thus states that the point of difference is whether the statement initially made on behalf of the Respondents and recorded on 27/04/2023 should continue as an order of the Court.