Thread by @barandbench

#BombayHighCourt to continue hearing plea filed by Mumbai journalist and a digital news portal challenging recently notified IT intermediary rules of 2021.

Read updates of previous hearing: barandbench.com/news/litigatio…

A Division Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni to resume hearing arguments by Additional Solicitor General Anil Singh.

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ASG: Yesterday I had mentioned to you that the matter might get listed today before the #SupremeCourt. However, it was not.

The registry said the matter may be listed tomorrow or day after, definitely this week.

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Bench discusses amongst themselves.

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ASG continues: Before I come to the merits, I must give some background. Before the rules came into force, there were various Petitions filed in different HCs to frame rules & guidelines in order to regulate online platform & its content.

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ASG: In one of the Petitions, Delhi HC dismissed and an SLP was filed, and a transfer application was filed and the proceedings pending in all HCs were stayed by the SC.

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ASG: As far as the present rules are concerned, there are 14 Petitions in various High Courts- Delhi, Orissa, Karnataka, Calcutta, Madras & Kerala.

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ASG: All Petitions seek same relief. Except for Kerala, where an order was passed by the Ld. Single Judge for no coercive action against the Petition, in rest of the matters there is no stay.

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ASG: The Madras HC, on 23 June 2021- the Court said that since no adverse action was initiated against the Petitioners, no interim relief was granted.

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Chief Justice Dipankar Datta: Has the Union filed their Counter before the Madras HC?

ASG: No, but it would hardly take 2-3 days.

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ASG: There are other orders from other High Courts as well.

Bench examines orders by Madras, Delhi & Cuttack.

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Court asks Senior Advocate Darius Khambata: What is the 9 July 2021 order?

Senior Advocate Darius Khambata: It is by the Kerala High Court reaffirming the 10 March order.

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Court: Were there any reasons cited?

Senior Advocate Darius Khambata: No, no reasons.

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ASG: We have filed an SLP against both orders.

Court: Has the SLP come up yet?

ASG: No.

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Bench discusses amongst themselves with mic off.

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Chief asks Khambata: Suppose we accept your argument and grant a stay, allow rules to be suspended in the time being.
If your Writ fails subsequently, you cannot use our stay order as a shield.

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Can we think of a workable solution?

Khambata: So your Lordship will grant a stay with this Caveat, it always open to you.

As long as Article 19 (2) is the only limit, there is no difficulty.

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ASG: May I submit one thing, instead of granting an interim stay- the final matter can just be heard.

Chief: The problem is Mr. Singh that since March no Counters have been filed.

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ASG: the challenge is My Lord that there are various Petitions before different High Courts and before the Supreme Court. We cannot file separate replies everywhere.

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ASG: My Ld. Friends client- there are three layers to the rules- they have already said that they are complying with rules.

Your Lordship may give us some time so I can file an affidavit.

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Court: So, you want to file reply?

ASG: Yes, it is almost ready.

Court: When can you file?

ASG: I'll try to file by Monday.

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Court: We can grant you time. But don’t take any coercive action in the meantime.

Because then it’ll be problematic.

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Chief: Because they are under constant fear.

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ASG: you may just grant me three days’ time, that’s all.

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Khambata: The Calcutta HC directed that the Counter be filed by 19 July. Then the Union must have the Affidavit ready.

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Court to ASG: You file it by Thursday, we will consider on Friday. You file a short affidavit on why interim relief should not be granted.

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ORDER: A short affidavit to be filed by UOI on interim relief, matter posted on Friday.

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