REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL/CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO.167 OF 2012
SHREYA SINGHAL … PETITIONER
VERSUS
UNION OF INDIA … RESPONDENT
WITH
WRIT PETITION (CIVIL) NO.21 OF 2013
WRIT PETITION (CIVIL) NO.23 OF 2013
WRIT PETITION (CIVIL) NO. 97 OF 2013
WRIT PETITION (CRIMINAL) NO.199 OF 2013
WRIT PETITION (CIVIL) NO. 217 OF 2013
WRIT PETITION (CRIMINAL) NO.222 OF 2013
WRIT PETITION (CRIMINAL) NO.225 OF 2013
WRIT PETITION (CIVIL) NO.758 OF 2014
WRIT PETITION (CRIMINAL) NO.196 OF 2014
1
J U D G M E N T
R.F. NARIMAN, J.
1. This batch of writ petitions filed under Article 32 of the
Constitution of India raises very important and far-reaching
questions relatable primarily to the fundamental right of free
speech and expression guaranteed by Article 19(1)(a) of the
Constitution of India. The immediate cause for concern in these
petitions is Section 66A of the Information Technology Act of
2000. This Section was not in the Act as originally enacted, but
came into force by virtue of an Amendment Act of 2009 with
effect from 27.10.2009. Since all the arguments raised by
several counsel for the petitioners deal with the
unconstitutionality of this Section it is set out hereinbelow:
“66-A. Punishment for sending offensive
messages through communication service, etc.
—Any person who sends, by means of a computer
resource or a communication device,—
(a) any information that is grossly
offensive or has menacing character; or
(b) any information which he knows to
be false, but for the purpose of causing
annoyance, inconvenience, danger,
obstruction, insult, injury, criminal
intimidation, enmity, hatred or ill will,
persistently by making use of such
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computer resource or a communication
device; or
(c) any electronic mail or electronic mail
message for the purpose of causing
annoyance or inconvenience or to
deceive or to mislead the addressee or
recipient about the origin of such
messages,
shall be punishable with imprisonment for a term
which may extend to three years and with fine.
Explanation.— For the purposes of this section,
terms “electronic mail” and “electronic mail
message” means a message or information created
or transmitted or received on a computer, computer
system, computer resource or communication
device including attachments in text, image, audio,
video and any other electronic record, which may be
transmitted with the message.”1
1
The genealogy of this Section may be traced back to Section 10(2)(a) of the U.K. Post Office
(Amendment) Act, 1935, which made it an offence to send any message by telephone which is grossly
offensive or of an indecent, obscene, or menacing character. This Section was substantially reproduced by
Section 66 of the UK Post Office Act, 1953 as follows:
66. Prohibition of sending offensive or false telephone messages or false telegrams,
etc.
If any person—
(a)sends any message by telephone which is grossly offensive or of an indecent, obscene
or menacing character ;
(b)sends any message by telephone, or any telegram, which he knows to be false, for the
purpose of causing annoyance, inconvenience or needless anxiety to any other person ; or
(c)persistently makes telephone calls without reasonable cause and for any such purpose
as aforesaid,
he shall be liable on summary conviction to a fine not exceeding ten pounds, or to
imprisonment for a term not exceeding one month, or to both.
This Section in turn was replaced by Section 49 of the British Telecommunication Act, 1981 and
Section 43 of the British Telecommunication Act, 1984. In its present form in the UK, it is Section 127 of
the Telecommunication Act, 2003 which is relevant and which is as follows:-
127. Improper use of public electronic communications network
(1) A person is guilty of an offence if he -
(a) sends by means of a public electronic communications network a
message or other matter that is grossly offensive or of an indecent, obscene
or menacing character; or
(b) cause any such message or matter to be so sent.
3
2. A related challenge is also made to Section 69A
introduced by the same amendment which reads as follows:-
“69-A. Power to issue directions for blocking for
public access of any information through any
computer resource.—(1) Where the Central
Government or any of its officers specially
authorised by it in this behalf is satisfied that it is
necessary or expedient so to do, in the interest of
sovereignty and integrity of India, defence of India,
security of the State, friendly relations with foreign
States or public order or for preventing incitement to
the commission of any cognizable offence relating
to above, it may subject to the provisions of
sub-section (2), for reasons to be recorded in
writing, by order, direct any agency of the
Government or intermediary to block for access by
the public or cause to be blocked for access by the
public any information generated, transmitted,
received, stored or hosted in any computer
resource.
(2) The procedure and safeguards subject to which
such blocking for access by the public may be
carried out, shall be such as may be prescribed.
(2) A person is guilty of an offence if, for the purpose of causing
annoyance, inconvenience or needless anxiety to another, he-
(a) sends by means of a public electronic communications network, a
message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network. (3) A person guilty of an offence under this section shall be liable, on
summary conviction, to imprisonment for a term not exceeding six months
or to a fine not exceeding level 5 on the standard scale, or to both.
(4) Subsections (1) and (2) do not apply to anything done in the course of
providing a programme service (within the meaning of the Broadcasting Act
1990 (c.42)).
4
(3) The intermediary who fails to comply with the
direction issued under sub-section (1) shall be
punished with an imprisonment for a term which
may extend to seven years and shall also be liable
to fine.”
3. The Statement of Objects and Reasons appended to the
Bill which introduced the Amendment Act stated in paragraph 3
that:
“3. A rapid increase in the use of computer and
internet has given rise to new forms of crimes like
publishing sexually explicit materials in electronic
form, video voyeurism and breach of confidentiality
and leakage of data by intermediary, e-commerce
frauds like personation commonly known as
Phishing, identity theft and offensive messages
through communication services. So, penal
provisions are required to be included in the
Information Technology Act, the Indian Penal code,
the Indian Evidence Act and the code of Criminal
Procedure to prevent such crimes.”
4. The petitioners contend that the very basis of Section 66A
- that it has given rise to new forms of crimes - is incorrect, and
that Sections 66B to 67C and various Sections of the Indian
Penal Code (which will be referred to hereinafter) are good
enough to deal with all these crimes.
5
5. The petitioners’ various counsel raised a large number of
points as to the constitutionality of Section 66A. According to
them, first and foremost Section 66A infringes the fundamental
right to free speech and expression and is not saved by any of
the eight subjects covered in Article 19(2). According to them,
the causing of annoyance, inconvenience, danger, obstruction,
insult, injury, criminal intimidation, enmity, hatred or ill-will are all
outside the purview of Article 19(2). Further, in creating an
offence, Section 66A suffers from the vice of vagueness
because unlike the offence created by Section 66 of the same
Act, none of the aforesaid terms are even attempted to be
defined and cannot be defined, the result being that innocent
persons are roped in as well as those who are not. Such
persons are not told clearly on which side of the line they fall;
and it would be open to the authorities to be as arbitrary and
whimsical as they like in booking such persons under the said
Section. In fact, a large number of innocent persons have been
booked and many instances have been given in the form of a
note to the Court. The enforcement of the said Section would
really be an insidious form of censorship which impairs a core
6
value contained in Article 19(1)(a). In addition, the said Section
has a chilling effect on the freedom of speech and expression.
Also, the right of viewers is infringed as such chilling effect
would not give them the benefit of many shades of grey in
terms of various points of view that could be viewed over the
internet.
The petitioners also contend that their rights under
Articles 14 and 21 are breached inasmuch there is no
intelligible differentia between those who use the internet and
those who by words spoken or written use other mediums of
communication. To punish somebody because he uses a
particular medium of communication is itself a discriminatory
object and would fall foul of Article 14 in any case.
6. In reply, Mr. Tushar Mehta, learned Additional Solicitor
General defended the constitutionality of Section 66A. He
argued that the legislature is in the best position to understand
and appreciate the needs of the people. The Court will,
therefore, interfere with the legislative process only when a
statute is clearly violative of the rights conferred on the citizen
7
under Part-III of the Constitution. There is a presumption in
favour of the constitutionality of an enactment. Further, the
Court would so construe a statute to make it workable and in
doing so can read into it or read down the provisions that are
impugned. The Constitution does not impose impossible
standards of determining validity. Mere possibility of abuse of a
provision cannot be a ground to declare a provision invalid.
Loose language may have been used in Section 66A to deal
with novel methods of disturbing other people’s rights by using
the internet as a tool to do so. Further, vagueness is not a
ground to declare a statute unconstitutional if the statute is
otherwise legislatively competent and non-arbitrary. He cited a
large number of judgments before us both from this Court and
from overseas to buttress his submissions.
Freedom of Speech and Expression
Article 19(1)(a) of the Constitution of India states as follows:
“Article 19. Protection of certain rights
regarding freedom of speech, etc.—(1) All
citizens shall have the right—
(a) to freedom of speech and expression;”
8
7. Article 19(2) states:
“Article 19. Protection of certain rights
regarding freedom of speech, etc.—(2) Nothing in
sub-clause (a) of clause (1) shall affect the
operation of any existing law, or prevent the State
from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the interests of
the sovereignty and integrity of India, the security of
the State, friendly relations with foreign States,
public order, decency or morality or in relation to
contempt of court, defamation or incitement to an
offence.”
8. The Preamble of the Constitution of India inter alia speaks
of liberty of thought, expression, belief, faith and worship. It
also says that India is a sovereign democratic republic. It
cannot be over emphasized that when it comes to democracy,
liberty of thought and expression is a cardinal value that is of
paramount significance under our constitutional scheme.
9. Various judgments of this Court have referred to the
importance of freedom of speech and expression both from the
point of view of the liberty of the individual and from the point of
view of our democratic form of government. For example, in
9
the early case of Romesh Thappar v. State of Madras, [1950]
S.C.R. 594 at 602, this Court stated that freedom of speech lay
at the foundation of all democratic organizations. In Sakal
Papers (P) Ltd. & Ors. v. Union of India, [1962] 3 S.C.R. 842
at 866, a Constitution Bench of this Court said freedom of
speech and expression of opinion is of paramount importance
under a democratic constitution which envisages changes in
the composition of legislatures and governments and must be
preserved. In a separate concurring judgment Beg,J. said, in
Bennett Coleman & Co. & Ors. v. Union of India & Ors.,
[1973] 2 S.C.R. 757 at 829, that the freedom of speech and of
the press is the Ark of the Covenant of Democracy because
public criticism is essential to the working of its institutions.2
10. Equally, in S. Khushboo v. Kanniamal & Anr., (2010) 5
SCC 600 this Court stated, in paragraph 45 that the importance
of freedom of speech and expression though not absolute was
2
Incidentally, the Ark of the Covenant is perhaps the single most important focal point in Judaism.
The original ten commandments which the Lord himself gave to Moses was housed in a wooden chest which was
gold plated and called the Ark of the Covenant and carried by the Jews from place to place until it found its final
repose in the first temple - that is the temple built by Solomon.
10
necessary as we need to tolerate unpopular views. This right
requires the free flow of opinions and ideas essential to sustain
the collective life of the citizenry. While an informed citizenry is
a pre-condition for meaningful governance, the culture of open
dialogue is generally of great societal importance.
11. This last judgment is important in that it refers to the
“market place of ideas” concept that has permeated American
Law. This was put in the felicitous words of Justice Holmes in
his famous dissent in Abrams v. United States, 250 US 616
(1919), thus:
“But when men have realized that time has upset
many fighting faiths, they may come to believe even
more than they believe the very foundations of their
own conduct that the ultimate good desired is better
reached by free trade in ideas-that the best test of
truth is the power of thought to get itself accepted in
the competition of the market, and that truth is the
only ground upon which their wishes safely can be
carried out. That at any rate is the theory of our
Constitution.”
12. Justice Brandeis in his famous concurring judgment in
Whitney v. California, 71 L. Ed. 1095 said:
11
“Those who won our independence believed that
the final end of the state was to make men free to
develop their faculties, and that in its government
the deliberative forces should prevail over the
arbitrary. They valued liberty both as an end and as
a means. They believed liberty to be the secret of
happiness and courage to be the secret of liberty.
They believed that freedom to think as you will and
to speak as you think are means indispensable to
the discovery and spread of political truth; that
without free speech and assembly discussion would
be futile; that with them, discussion affords
ordinarily adequate protection against the
dissemination of noxious doctrine; that the greatest
menace to freedom is an inert people; that public
discussion is a political duty; and that this should be
a fundamental principle of the American
government. They recognized the risks to which all
human institutions are subject. But they knew that
order cannot be secured merely through fear of
punishment for its infraction; that it is hazardous to
discourage thought, hope and imagination; that fear
breeds repression; that repression breeds hate; that
hate menaces stable government; that the path of
safety lies in the opportunity to discuss freely
supposed grievances and proposed remedies; and
that the fitting remedy for evil counsels is good
ones. Believing in the power of reason as applied
through public discussion, they eschewed silence
coerced by law-the argument of force in its worst
form. Recognizing the occasional tyrannies of
governing majorities, they amended the Constitution
so that free speech and assembly should be
guaranteed.
12
Fear of serious injury cannot alone justify
suppression of free speech and assembly. Men
feared witches and burnt women. It is the function of
speech to free men from the bondage of irrational
fears. To justify suppression of free speech there
must be reasonable ground to fear that serious evil
will result if free speech is practiced. There must be
reasonable ground to believe that the danger
apprehended is imminent. There must be
reasonable ground to believe that the evil to be
prevented is a serious one. Every denunciation of
existing law tends in some measure to increase the
probability that there will be violation of
it. Condonation of a breach enhances the
probability. Expressions of approval add to the
probability. Propagation of the criminal state of mind
by teaching syndicalism increases it. Advocacy of
lawbreaking heightens it still further. But even
advocacy of violation, however reprehensible
morally, is not a justification for denying free speech
where the advocacy falls short of incitement and
there is nothing to indicate that the advocacy would
be immediately acted on. The wide difference
between advocacy and incitement, between
preparation and attempt, between assembling and
conspiracy, must be borne in mind. In order to
support a finding of clear and present danger it must
be shown either that immediate serious violence
was to be expected or was advocated, or that the
past conduct furnished reason to believe that such
advocacy was then contemplated.” (at page 1105,
1106)
13
13. This leads us to a discussion of what is the content of the
expression “freedom of speech and expression”. There are
three concepts which are fundamental in understanding the
reach of this most basic of human rights. The first is
discussion, the second is advocacy, and the third is incitement.
Mere discussion or even advocacy of a particular cause
howsoever unpopular is at the heart of Article 19(1)(a). It is
only when such discussion or advocacy reaches the level of
incitement that Article 19(2) kicks in.3
It is at this stage that a
law may be made curtailing the speech or expression that leads
3
A good example of the difference between advocacy and incitement is Mark Antony’s speech in
Shakespeare’s immortal classic Julius Caesar. Mark Antony begins cautiously. Brutus is chastised for calling Julius
Caesar ambitious and is repeatedly said to be an “honourable man”. He then shows the crowd Caesar’s mantle and
describes who struck Caesar where. It is at this point, after the interjection of two citizens from the crowd, that
Antony says-
“ANTONY- Good friends, sweet friends, let me not stir you up
To such a sudden flood of mutiny.
They that have done this deed are honourable:
What private griefs they have, alas, I know not,
That made them do it: they are wise and honourable,
And will, no doubt, with reasons answer you.
I come not, friends, to steal away your hearts:
I am no orator, as Brutus is;
But, as you know me all, a plain blunt man,
That love my friend; and that they know full well
That gave me public leave to speak of him:
For I have neither wit, nor words, nor worth,
Action, nor utterance, nor the power of speech,
To stir men's blood: I only speak right on;
I tell you that which you yourselves do know;
Show you sweet Caesar's wounds, poor poor dumb mouths,
And bid them speak for me: but were I Brutus,
And Brutus Antony, there were an Antony
Would ruffle up your spirits and put a tongue
In every wound of Caesar that should move
The stones of Rome to rise and mutiny.
ALL- We'll mutiny.” 14
inexorably to or tends to cause public disorder or tends to
cause or tends to affect the sovereignty & integrity of India, the
security of the State, friendly relations with foreign States, etc.
Why it is important to have these three concepts in mind is
because most of the arguments of both petitioners and
respondents tended to veer around the expression “public
order”.
14. It is at this point that a word needs to be said about the
use of American judgments in the context of Article 19(1)(a). In
virtually every significant judgment of this Court, reference has
been made to judgments from across the Atlantic. Is it safe to
do so?
15. It is significant to notice first the differences between the
US First Amendment and Article 19(1)(a) read with Article 19(2).
The first important difference is the absoluteness of the U.S.
first Amendment – Congress shall make no law which abridges
the freedom of speech. Second, whereas the U.S. First
Amendment speaks of freedom of speech and of the press,
without any reference to “expression”, Article 19(1)(a) speaks of
15
freedom of speech and expression without any reference to
“the press”. Third, under the US Constitution, speech may be
abridged, whereas under our Constitution, reasonable
restrictions may be imposed. Fourth, under our Constitution
such restrictions have to be in the interest of eight designated
subject matters - that is any law seeking to impose a restriction
on the freedom of speech can only pass muster if it is
proximately related to any of the eight subject matters set out in
Article 19(2).
16. Insofar as the first apparent difference is concerned, the
U.S. Supreme Court has never given literal effect to the
declaration that Congress shall make no law abridging the
freedom of speech. The approach of the Court which is
succinctly stated in one of the early U.S. Supreme Court
Judgments, continues even today. In Chaplinsky v. New
Hampshire, 86 L. Ed. 1031, Justice Murphy who delivered the
opinion of the Court put it thus:-
“Allowing the broadest scope to the language and
purpose of the Fourteenth Amendment, it is well
understood that the right of free speech is not
16
absolute at all times and under all
circumstances. There are certain well-defined and
narrowly limited classes of speech, the prevention
and punishment of which has never been thought to
raise any Constitutional problem. These include the
lewd and obscene, the profane, the libelous, and
the insulting or 'fighting' words—those which by
their very utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well
observed that such utterances are no essential part
of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by
the social interest in order and morality. 'Resort to
epithets or personal abuse is not in any proper
sense communication of information or opinion
safeguarded by the Constitution, and its punishment
as a criminal act would raise no question under that
instrument.' Cantwell v. Connecticut, 310 U.S. 296,
309, 310, 60 S.Ct. 900, 906, 84 L.Ed.1213, 128
A.L.R. 1352.” (at page 1035)
17. So far as the second apparent difference is concerned,
the American Supreme Court has included “expression” as part
of freedom of speech and this Court has included “the press” as
being covered under Article 19(1)(a), so that, as a matter of
judicial interpretation, both the US and India protect the
freedom of speech and expression as well as press freedom.
Insofar as abridgement and reasonable restrictions are
concerned, both the U.S. Supreme Court and this Court have
17
held that a restriction in order to be reasonable must be
narrowly tailored or narrowly interpreted so as to abridge or
restrict only what is absolutely necessary. It is only when it
comes to the eight subject matters that there is a vast
difference. In the U.S., if there is a compelling necessity to
achieve an important governmental or societal goal, a law
abridging freedom of speech may pass muster. But in India,
such law cannot pass muster if it is in the interest of the general
public. Such law has to be covered by one of the eight subject
matters set out under Article 19(2). If it does not, and is outside
the pale of 19(2), Indian courts will strike down such law.
18. Viewed from the above perspective, American judgments
have great persuasive value on the content of freedom of
speech and expression and the tests laid down for its
infringement. It is only when it comes to sub-serving the
general public interest that there is the world of a difference.
This is perhaps why in Kameshwar Prasad & Ors. v. The
State of Bihar & Anr., 1962 Supp. (3) S.C.R. 369, this Court
held:
18
“As regards these decisions of the American Courts,
it should be borne in mind that though the First
Amendment to the Constitution of the United State
reading "Congress shall make no law.... abridging
the freedom of speech..." appears to confer no
power on the Congress to impose any restriction on
the exercise of the guaranteed right, still it has
always been understood that the freedom
guaranteed is subject to the police power - the
scope of which however has not been defined with
precision or uniformly. It is on the basis of the police
power to abridge that freedom that the constitutional
validity of laws penalising libels, and those relating
to sedition, or to obscene publications etc., has
been sustained. The resultant flexibility of the
restrictions that could be validly imposed renders
the American decisions inapplicable to and without
much use for resolving the questions arising under
Art. 19(1) (a) or (b) of our Constitution wherein the
grounds on which limitations might be placed on the
guaranteed right are set out with definiteness and
precision.” ( At page 378)
19. But when it comes to understanding the impact and
content of freedom of speech, in Indian Express Newspapers
(Bombay) Private Limited & Ors. v. Union of India & Ors.,
(1985) 2 SCR 287, Venkataramiah,J. stated:
“While examining the constitutionality of a law
which is alleged to contravene Article 19 (1) (a) of
the Constitution, we cannot, no doubt, be solely
guided by the decisions of the Supreme Court of the
United States of America. But in order to understand
the basic principles of freedom of speech and
expression and the need for that freedom in a
19
democratic country, we may take them into
consideration. The pattern of Article 19 (1) (a) and
of Article 19 (1) (g) of our constitution is different
from the pattern of the First Amendment to the
American Constitution which is almost absolute in
its terms. The rights guaranteed under Article 19 (1)
(a) and Article 19 (1) (g) of the Constitution are to be
read along with clauses (2) and (6) of Article
19 which carve out areas in respect of which valid
legislation can be made.” (at page 324)
20. With these prefatory remarks, we will now go to the other
aspects of the challenge made in these writ petitions and
argued before us.
A. Article 19(1)(a) –
Section 66A has been challenged on the ground that it
casts the net very wide – “all information” that is disseminated
over the internet is included within its reach. It will be useful to
note that Section 2(v) of Information Technology Act, 2000
defines information as follows:
“2. Definitions.—(1) In this Act, unless the context
otherwise requires,—
(v) “Information” includes data, message, text,
images, sound, voice, codes, computer
programmes, software and databases or micro film
or computer generated micro fiche.”
20
Two things will be noticed. The first is that the definition is
an inclusive one. Second, the definition does not refer to what
the content of information can be. In fact, it refers only to the
medium through which such information is disseminated. It is
clear, therefore, that the petitioners are correct in saying that
the public’s right to know is directly affected by Section 66A.
Information of all kinds is roped in – such information may have
scientific, literary or artistic value, it may refer to current events,
it may be obscene or seditious. That such information may
cause annoyance or inconvenience to some is how the offence
is made out. It is clear that the right of the people to know – the
market place of ideas – which the internet provides to persons
of all kinds is what attracts Section 66A. That the information
sent has to be annoying, inconvenient, grossly offensive etc.,
also shows that no distinction is made between mere
discussion or advocacy of a particular point of view which may
be annoying or inconvenient or grossly offensive to some and
incitement by which such words lead to an imminent causal
connection with public disorder, security of State etc. The
petitioners are right in saying that Section 66A in creating an
21
offence against persons who use the internet and annoy or
cause inconvenience to others very clearly affects the freedom
of speech and expression of the citizenry of India at large in
that such speech or expression is directly curbed by the
creation of the offence contained in Section 66A.
In this regard, the observations of Justice Jackson in
American Communications Association v. Douds, 94 L. Ed.
925 are apposite:
“Thought control is a copyright of totalitarianism,
and we have no claim to it. It is not the function of
our Government to keep the citizen from falling into
error; it is the function of the citizen to keep the
Government from falling into error. We could justify
any censorship only when the censors are better
shielded against error than the censored.”
B. Article 19(2)
One challenge to Section 66A made by the petitioners’
counsel is that the offence created by the said Section has no
proximate relation with any of the eight subject matters
contained in Article 19(2). We may incidentally mention that the
State has claimed that the said Section can be supported under
22
the heads of public order, defamation, incitement to an offence
and decency or morality.
21. Under our constitutional scheme, as stated earlier, it is not
open to the State to curtail freedom of speech to promote the
general public interest. In Sakal Papers (P) Ltd. & Ors. v.
Union of India, [1962] 3 S.C.R. 842, this Court said:
“It may well be within the power of the State to
place, in the interest of the general public,
restrictions upon the right of a citizen to carry on
business but it is not open to the State to achieve
this object by directly and immediately curtailing any
other freedom of that citizen guaranteed by the
Constitution and which is not susceptible of
abridgment on the same grounds as are set out in
clause (6) of Article 19. Therefore, the right of
freedom of speech cannot be taken away with the
object of placing restrictions on the business
activities of a citizen. Freedom of speech can be
restricted only in the interests of the security of the
State, friendly relations with foreign State, public
order, decency or morality or in relation to contempt
of court, defamation or incitement to an offence. It
cannot, like the freedom to carry on business, be
curtailed in the interest of the general public. If a law
directly affecting it is challenged, it is no answer that
the restrictions enacted by it are justifiable under
clauses (3) to (6). For, the scheme of Article 19 is to
enumerate different freedoms separately and then
to specify the extent of restrictions to which they
may be subjected and the objects for securing
which this could be done. A citizen is entitled to
23
enjoy each and every one of the freedoms together
and clause (1) does not prefer one freedom to
another. That is the plain meaning of this clause. It
follows from this that the State cannot make a law
which directly restricts one freedom even for
securing the better enjoyment of another freedom.
All the greater reason, therefore for holding that the
State cannot directly restrict one freedom by placing
an otherwise permissible restriction on another
freedom.” (at page 863)
22. Before we come to each of these expressions, we must
understand what is meant by the expression “in the interests
of”. In The Superintendent, Central Prison, Fatehgarh v.
Ram Manohar Lohia, [1960] 2 S.C.R. 821, this Court laid
down:
“We do not understand the observations of the
Chief Justice to mean that any remote or fanciful
connection between the impugned Act and the
public order would be sufficient to sustain its validity.
The learned Chief Justice was only making a
distinction between an Act which expressly and
directly purported to maintain public order and one
which did not expressly state the said purpose but
left it to be implied there from; and between an Act
that directly maintained public order and that
indirectly brought about the same result. The
distinction does not ignore the necessity for intimate
connection between the Act and the public order
sought to be maintained by the Act.” (at pages 834,
835)
“The restriction made "in the interests of public
order" must also have reasonable relation to the
24
object to be achieved, i.e., the public order. If the
restriction has no proximate relationship to the
achievement of public order, it cannot be said that
the restriction is a reasonable restriction within the
meaning of the said clause.” (at page 835)
“The decision, in our view, lays down the correct
test. The limitation imposed in the interests of public
order to be a reasonable restriction, should be one
which has a proximate connection or nexus with
public order, but not one far-fetched, hypothetical or
problematical or too remote in the chain of its
relation with the public order.………There is no
proximate or even foreseeable connection between
such instigation and the public order sought to be
protected under section. We cannot accept the
argument of the learned Advocate General that
instigation of a single individual not to pay tax or
dues is a spark which may in the long run ignite a
revolutionary movement destroying public order” (at
page 836).
Reasonable Restrictions:
23. This Court has laid down what “reasonable restrictions”
means in several cases. In Chintaman Rao v. The State of
Madhya Pradesh, [1950] S.C.R. 759, this Court said:
“The phrase "reasonable restriction" connotes
that the limitation imposed on a person in enjoyment
of the right should not be arbitrary or of an
excessive nature, beyond what is required in the
interests of the public. The word "reasonable"
implies intelligent care and deliberation, that is, the
choice of a course which reason dictates.
25
Legislation which arbitrarily or excessively invades
the right cannot be said to contain the quality of
reasonableness and unless it strikes a proper
balance between the freedom guaranteed in article
19(1)(g) and the social control permitted by clause
(6) of article 19, it must be held to be wanting in that
quality.” (at page 763)
24. In State of Madras v. V.G. Row, [1952] S.C.R. 597, this
Court said:
“This Court had occasion in Dr. Khare's case (1950)
S.C.R. 519 to define the scope of the judicial review
under clause (5) of Article19 where the phrase
"imposing reasonable restriction on the exercise of
the right" also occurs and four out of the five Judges
participating in the decision expressed the view (the
other Judge leaving the question open) that both the
substantive and the procedural aspects of the
impugned restrictive law should be examined from
the point of view of reasonableness; that is to say,
the Court should consider not only factors such as
the duration and the extent of the restrictions, but
also the circumstances under which and the manner
in which their imposition has been authorised. It is
important in this context to bear in mind that the test
of reasonableness, where ever prescribed, should
be applied to each, individual statute impugned and
no abstract standard, or general pattern of
reasonableness can be laid down as applicable to
all cases. The nature of the right alleged to have
been infringed, the underlying purpose of the
restriction imposed, the extent and urgency of the
evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing
conditions at the time, should all enter into the
judicial verdict. In evaluating such elusive factors
26
and forming their own conception of what is
reasonable, in all the circumstances of a given
case, it is inevitable that the social philosophy and
the scale of values of the judges participating in the
decision should play an important part, and the limit
to their interference with legislative judgment in
such cases can only be dictated by their sense of
responsibility and self- restraint and the sobering
reflection that the Constitution is meant not only for
people of their way of thinking but for all, and that
the majority of the elected representatives of the
people have, in authorising the imposition of the
restrictions, considered them to be reasonable.” (at
page 606-607)
25. Similarly, in Mohd. Faruk v. State of Madhya Pradesh &
Ors., [1970] 1 S.C.R. 156, this Court said:
“The Court must in considering the validity of the
impugned law imposing a prohibition on the carrying
on of a business or profession, attempt an
evaluation of its direct and immediate impact upon
the fundamental rights of the citizens affected
thereby and the larger public interest sought to be
ensured in the light of the object sought to be
achieved, the necessity to restrict the citizen's
freedom, the inherent pernicious nature of the act
prohibited or its capacity or tendency to be harmful
to the general public, the possibility of achieving the
object by imposing a less drastic restraint, and in
the absence of exceptional situations such as the
prevalence of a state of emergency-national or
local-or the necessity to maintain essential supplies,
or the necessity to stop activities inherently
dangerous, the existence of a machinery to satisfy
the administrative authority that no case for
27
imposing the restriction is made out or that a less
drastic restriction may ensure the object intended to
be achieved.” (at page 161)
26. In Dr. N. B. Khare v. State of Delhi, [1950] S.C.R. 519, a
Constitution Bench also spoke of reasonable restrictions when
it comes to procedure. It said:
“While the reasonableness of the restrictions has to
be considered with regard to the exercise of the
right, it does not necessarily exclude from the
consideration of the Court the question of
reasonableness of the procedural part of the law. It
is obvious that if the law prescribes five years
externment or ten years externment, the question
whether such period of externment is reasonable,
being the substantive part, is necessarily for the
consideration of the court under clause (5).
Similarly, if the law provides the procedure under
which the exercise of the right may be restricted, the
same is also for the consideration of the Court, as it
has to determine if the exercise of the right has
been reasonably restricted.” (at page 524)
27. It was argued by the learned Additional Solicitor General
that a relaxed standard of reasonableness of restriction should
apply regard being had to the fact that the medium of speech
being the internet differs from other mediums on several
grounds. To appreciate the width and scope of his
28
submissions, we are setting out his written submission
verbatim:
“(i) the reach of print media is restricted to one
state or at the most one country while internet has
no boundaries and its reach is global;
(ii) the recipient of the free speech and
expression used in a print media can only be literate
persons while internet can be accessed by literate
and illiterate both since one click is needed to
download an objectionable post or a video;
(iii) In case of televisions serials [except live
shows] and movies, there is a permitted precensorship'
which ensures right of viewers not to
receive any information which is dangerous to or not
in conformity with the social interest. While in the
case of an internet, no such pre-censorship is
possible and each individual is publisher, printer,
producer, director and broadcaster of the content
without any statutory regulation;
(iv) In case of print media or medium of television and
films whatever is truly recorded can only be
published or broadcasted I televised I viewed. While
in case of an internet, morphing of images, change
of voices and many other technologically advance
methods to create serious potential social disorder
can be applied.
(v) By the medium of internet, rumors having a serious
potential of creating a serious social disorder can
be spread to trillions of people without any check
which is not possible in case of other mediums.
(vi) In case of mediums like print media, television and
films, it is broadly not possible to invade privacy of
29
unwilling persons. While in case of an internet, it is
very easy to invade upon the privacy of any
individual and thereby violating his right under
Article 21 of the Constitution of India.
(vii) By its very nature, in the mediums like newspaper,
magazine, television or a movie, it is not possible to
sexually harass someone, outrage the modesty of
anyone, use unacceptable filthy language and
evoke communal frenzy which would lead to serious
social disorder. While in the case of an internet, it is
easily possible to do so by a mere click of a button
without any geographical limitations and almost in
all cases while ensuring anonymity of the offender.
(viii) By the very nature of the medium, the width and
reach of internet is manifold as against newspaper
and films. The said mediums have inbuilt limitations
i.e. a person will have to buy / borrow a newspaper
and / or will have to go to a theater to watch a
movie. For television also one needs at least a room
where a television is placed and can only watch
those channels which he has subscribed and that
too only at a time where it is being telecast. While in
case of an internet a person abusing the internet,
can commit an offence at any place at the time of
his choice and maintaining his anonymity in almost
all cases.
(ix) In case of other mediums, it is impossible to
maintain anonymity as a result of which speech
ideal opinions films having serious potential of
creating a social disorder never gets generated
since its origin is bound to be known. While in case
of an internet mostly its abuse takes place under the
garb of anonymity which can be unveiled only after
thorough investigation.
(x) In case of other mediums like newspapers,
television or films, the approach is always
institutionalized approach governed by industry
30
specific ethical norms of self conduct. Each
newspaper / magazine / movie production house /
TV Channel will have their own institutionalized
policies in house which would generally obviate any
possibility of the medium being abused. As against
that use of internet is solely based upon
individualistic approach of each individual without
any check, balance or regulatory ethical norms for
exercising freedom of speech and expression under
Article 19[ 1] [a].
(xi) In the era limited to print media and
cinematograph; or even in case of publication
through airwaves, the chances of abuse of freedom
of expression was less due to inherent
infrastructural and logistical constrains. In the case
of said mediums, it was almost impossible for an
individual to create and publish an abusive content
and make it available to trillions of people. Whereas,
in the present internet age the said infrastructural
and logistical constrains have disappeared as any
individual using even a smart mobile phone or a
portable computer device can create and publish
abusive material on its own, without seeking help of
anyone else and make it available to trillions of
people by just one click.”
28. As stated, all the above factors may make a distinction
between the print and other media as opposed to the internet
and the legislature may well, therefore, provide for separate
offences so far as free speech over the internet is concerned.
There is, therefore, an intelligible differentia having a rational
relation to the object sought to be achieved – that there can be
31
creation of offences which are applied to free speech over the
internet alone as opposed to other mediums of communication.
Thus, an Article 14 challenge has been repelled by us on this
ground later in this judgment. But we do not find anything in the
features outlined by the learned Additional Solicitor General to
relax the Court’s scrutiny of the curbing of the content of free
speech over the internet. While it may be possible to narrowly
draw a Section creating a new offence, such as Section 69A for
instance, relatable only to speech over the internet, yet the
validity of such a law will have to be tested on the touchstone of
the tests already indicated above.
29. In fact, this aspect was considered in Secretary Ministry
of Information & Broadcasting, Government of India v.
Cricket Association of Bengal, (1995) 2 SCC 161 in para 37,
where the following question was posed:
“The next question which is required to be
answered is whether there is any distinction
between the freedom of the print media and that of
the electronic media such as radio and television,
and if so, whether it necessitates more restrictions
on the latter media.”
32
This question was answered in para 78 thus:
“There is no doubt that since the
airwaves/frequencies are a public property and are
also limited, they have to be used in the best
interest of the society and this can be done either by
a central authority by establishing its own
broadcasting network or regulating the grant of
licences to other agencies, including the private
agencies. What is further, the electronic media is
the most powerful media both because of its
audio-visual impact and its widest reach covering
the section of the society where the print media
does not reach. The right to use the airwaves and
the content of the programmes, therefore, needs
regulation for balancing it and as well as to prevent
monopoly of information and views relayed, which is
a potential danger flowing from the concentration of
the right to broadcast/telecast in the hands either of
a central agency or of few private affluent
broadcasters. That is why the need to have a
central agency representative of all sections of the
society free from control both of the Government
and the dominant influential sections of the society.
This is not disputed. But to contend that on that
account the restrictions to be imposed on the right
under Article 19(1)(a) should be in addition to those
permissible under Article 19(2) and dictated by the
use of public resources in the best interests of the
society at large, is to misconceive both the content
of the freedom of speech and expression and the
problems posed by the element of public property
in, and the alleged scarcity of, the frequencies as
well as by the wider reach of the media. If the right
to freedom of speech and expression includes the
right to disseminate information to as wide a section
of the population as is possible, the access which
enables the right to be so exercised is also an
integral part of the said right. The wider range of
33
circulation of information or its greater impact
cannot restrict the content of the right nor can it
justify its denial. The virtues of the electronic media
cannot become its enemies. It may warrant a
greater regulation over licensing and control and
vigilance on the content of the programme telecast.
However, this control can only be exercised within
the framework of Article 19(2) and the dictates of
public interests. To plead for other grounds is to
plead for unconstitutional measures. It is further
difficult to appreciate such contention on the part of
the Government in this country when they have a
complete control over the frequencies and the
content of the programme to be telecast. They
control the sole agency of telecasting. They are also
armed with the provisions of Article 19(2) and the
powers of pre-censorship under the Cinematograph
Act and Rules. The only limitation on the said right
is, therefore, the limitation of resources and the
need to use them for the benefit of all. When,
however, there are surplus or unlimited resources
and the public interests so demand or in any case
do not prevent telecasting, the validity of the
argument based on limitation of resources
disappears. It is true that to own a frequency for the
purposes of broadcasting is a costly affair and even
when there are surplus or unlimited frequencies,
only the affluent few will own them and will be in a
position to use it to subserve their own interest by
manipulating news and views. That also poses a
danger to the freedom of speech and expression of
the have-nots by denying them the truthful
information on all sides of an issue which is so
necessary to form a sound view on any subject.
That is why the doctrine of fairness has been
evolved in the US in the context of the private
broadcasters licensed to share the limited
frequencies with the central agency like the FCC to
regulate the programming. But this phenomenon
occurs even in the case of the print media of all the
34
countries. Hence the body like the Press Council of
India which is empowered to enforce, however
imperfectly, the right to reply. The print media further
enjoys as in our country, freedom from
pre-censorship unlike the electronic media.”
Public Order
30. In Article 19(2) (as it originally stood) this sub-head was
conspicuously absent. Because of its absence, challenges
made to an order made under Section 7 of the Punjab
Maintenance of Public Order Act and to an order made under
Section 9 (1)(a) of the Madras Maintenance of Public Order Act
were allowed in two early judgments by this Court. Thus in
Romesh Thappar v. State of Madras, [1950] S.C.R. 594, this
Court held that an order made under Section 9(1)(a) of the
Madras Maintenance of Public Order Act (XXIII of 1949) was
unconstitutional and void in that it could not be justified as a
measure connected with security of the State. While dealing
with the expression “public order”, this Court held that “public
order” is an expression which signifies a state of tranquility
which prevails amongst the members of a political society as a
result of the internal regulations enforced by the Government
which they have established.
35
31. Similarly, in Brij Bhushan & Anr. v. State of Delhi, [1950]
S.C.R. 605, an order made under Section 7 of the East Punjab
Public Safety Act, 1949, was held to be unconstitutional and
void for the self-same reason.
32. As an aftermath of these judgments, the Constitution First
Amendment added the words “public order” to Article 19(2).
33. In Superintendent, Central Prison, Fatehgarh v. Ram
Manohar Lohia, [1960] 2 S.C.R. 821, this Court held that
public order is synonymous with public safety and tranquility; it
is the absence of disorder involving breaches of local
significance in contradistinction to national upheavals, such as
revolution, civil strife, war, affecting the security of the State.
This definition was further refined in Dr. Ram Manohar Lohia v.
State of Bihar & Ors., [1966] 1 S.C.R. 709, where this Court
held:
“It will thus appear that just as "public order" in the
rulings of this Court (earlier cited) was said to
comprehend disorders of less gravity than those
36
affecting "security of State", "law and order" also
comprehends disorders of less gravity than those
affecting "public order". One has to imagine three
concentric circles. Law and order represents the
largest circle within which is the next circle
representing public order and the smallest circle
represents security of State. It is then easy to see
that an act may affect law and order but not public
order just as an act may affect public order but not
security of the State.” (at page 746)
34. In Arun Ghosh v. State of West Bengal, [1970] 3 S.C.R.
288, Ram Manohar Lohia’s case was referred to with approval
in the following terms:
“In Dr. Ram Manohar Lohia's case this Court
pointed out the difference between maintenance of
law and order and its disturbance and the
maintenance of public order and its disturbance.
Public order was said to embrace more of the
community than law and order. Public order is the
even tempo of the life of the community taking the
country as a whole or even a specified locality.
Disturbance of public order is to be distinguished,
from acts directed against individuals which do not
disturb the society to the extent of causing a general
disturbance of public tranquility. It is the degree of
disturbance and its effect upon the life of the
community in a locality which determines whether
the disturbance amounts only to a breach of law
and order. Take for instance, a man stabs another.
People may be shocked and even disturbed, but the
life of the community keeps moving at an even
tempo, however much one may dislike the act. Take
another case of a town where there is communal
tension. A man stabs a member of the other
37
community. This is an act of a very different sort. Its
implications are deeper and it affects the even
tempo of life and public order is jeopardized
because the repercussions of the act embrace large
Sections of the community and incite them to make
further breaches of the law and order and to subvert
the public order. An act by itself is not determinant
of its own gravity. In its quality it may not differ from
another but in its potentiality it may be very different.
Take the case of assault on girls. A guest at a hotel
may kiss or make advances to half a dozen
chamber maids. He may annoy them and also the
management but he does not cause disturbance of
public order. He may even have a fracas with the
friends of one of the girls but even then it would be
a case of breach of law and order only. Take
another case of a man who molests women in
lonely places. As a result of his activities girls going
to colleges and schools are in constant danger and
fear. Women going for their ordinary business are
afraid of being waylaid and assaulted. The activity
of this man in its essential quality is not different
from the act of the other man but in its potentiality
and in its effect upon the public tranquility there is a
vast difference. The act of the man who molests the
girls in lonely places causes a disturbance in the
even tempo of living which is the first requirement of
public order. He disturbs the society and the
community. His act makes all the women
apprehensive of their honour and he can be said to
be causing disturbance of public order and not
merely committing individual actions which may be
taken note of by the criminal prosecution agencies.
It means therefore that the question whether a man
has only committed a breach of law and order or
has acted in a manner likely to cause a disturbance
of the public order is a question of degree and the
extent of the reach of the act upon the society. The
French distinguish law and order and public order
by designating the latter as order publique. The
38
latter expression has been recognised as meaning
something more than ordinary maintenance of law
and order. Justice Ramaswami in Writ Petition No.
179 of 1968 drew a line of demarcation between the
serious and aggravated forms of breaches of public
order which affect the community or endanger the
public interest at large from minor breaches of
peace which do not affect the public at large. He
drew an analogy between public and private crimes.
The analogy is useful but not to be pushed too far. A
large number of acts directed against persons or
individuals may total up into a breach of public
order. In Dr. Ram Manohar Lohia's case examples
were given by Sarkar, and Hidayatullah, JJ. They
show how similar acts in different contexts affect
differently law and order on the one hand and public
order on the other. It is always a question of degree
of the harm and its effect upon the community. The
question to ask is: Does it lead to disturbance of the
current of life of the community so as to amount to a
disturbance of the public order or does it affect
merely an individual leaving the tranquility of the
society undisturbed? This question has to be faced
in every case on facts. There is no formula by which
one case can be distinguished from another.” (at
pages 290 and 291).
35. This decision lays down the test that has to be formulated
in all these cases. We have to ask ourselves the question:
does a particular act lead to disturbance of the current life of the
community or does it merely affect an individual leaving the
tranquility of society undisturbed? Going by this test, it is clear
that Section 66A is intended to punish any person who uses the
39
internet to disseminate any information that falls within the
sub-clauses of Section 66A. It will be immediately noticed that
the recipient of the written word that is sent by the person who
is accused of the offence is not of any importance so far as this
Section is concerned. (Save and except where under
sub-clause (c) the addressee or recipient is deceived or misled
about the origin of a particular message.) It is clear, therefore,
that the information that is disseminated may be to one
individual or several individuals. The Section makes no
distinction between mass dissemination and dissemination to
one person. Further, the Section does not require that such
message should have a clear tendency to disrupt public order.
Such message need not have any potential which could disturb
the community at large. The nexus between the message and
action that may be taken based on the message is
conspicuously absent – there is no ingredient in this offence of
inciting anybody to do anything which a reasonable man would
then say would have the tendency of being an immediate threat
to public safety or tranquility. On all these counts, it is clear that
the Section has no proximate relationship to public order
40
whatsoever. The example of a guest at a hotel `annoying’ girls
is telling – this Court has held that mere `annoyance’ need not
cause disturbance of public order. Under Section 66A, the
offence is complete by sending a message for the purpose of
causing annoyance, either `persistently’ or otherwise without in
any manner impacting public order.
Clear and present danger – tendency to affect.
36. It will be remembered that Justice Holmes in Schenck v.
United States, 63 L. Ed. 470 enunciated the clear and present
danger test as follows:
“…The most stringent protection of free speech
would not protect a man in falsely shouting fire in a
theatre and causing a panic. It does not even
protect a man from an injunction against uttering
words that may have all the effect of force.
Gompers v. Buck's Stove & Range Co., 221 U. S.
418, 439, 31 Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A.
(N. S.) 874. The question in every case is whether
the words used are used in such circumstances and
are of such a nature as to create a clear and
present danger that they will bring about the
substantive evils that Congress has a right to
prevent. It is a question of proximity and degree.”
(At page 473, 474)
37. This was further refined in Abrams v. Unites States 250
U.S. 616 (1919), this time in a Holmesian dissent, to be clear
41
and imminent danger. However, in most of the subsequent
judgments of the U.S. Supreme Court, the test has been
understood to mean to be “clear and present danger”. The test
of “clear and present danger” has been used by the U.S.
Supreme Court in many varying situations and has been
adjusted according to varying fact situations. It appears to have
been repeatedly applied, see- Terminiello v. City of Chicago
93 L. Ed. 1131 (1949) at page 1134-1135, Brandenburg v.
Ohio 23 L. Ed. 2d 430 (1969) at 434-435 & 436, Virginia v.
Black 155 L. Ed. 2d 535 (2003) at page 551, 552 and 5534
.
4
In its present form the clear and present danger test has been reformulated to say that:
“The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe
advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action.”
Interestingly, the US Courts have gone on to make a further refinement. The State may ban what is called a
“true threat”.
“’True threats’ encompass those statements where the speaker means to communicate a serious expression
of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”
“The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects
individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people
from the possibility that the threatened violence will occur. Intimidation in the constitutionally proscribable sense of
the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of
placing the victim in fear of bodily harm or death.”
See Virginia v. Black (Supra) and Watts v. United States 22 L. Ed. 2d. 664 at 667
42
38. We have echoes of it in our law as well S. Rangarajan v.
P. Jagjivan & Ors., (1989) 2 SCC 574 at paragraph 45:
“45. The problem of defining the area of freedom of
expression when it appears to conflict with the
various social interests enumerated under Article
19(2) may briefly be touched upon here. There does
indeed have to be a compromise between the
interest of freedom of expression and special
interests. But we cannot simply balance the two
interests as if they are of equal weight. Our
commitment of freedom of expression demands that
it cannot be suppressed unless the situations
created by allowing the freedom are pressing and
the community interest is endangered. The
anticipated danger should not be remote,
conjectural or far-fetched. It should have proximate
and direct nexus with the expression. The
expression of thought should be intrinsically
dangerous to the public interest. In other words, the
expression should be inseparably locked up with the
action contemplated like the equivalent of a “spark
in a powder keg”.
39. This Court has used the expression “tendency” to a
particular act. Thus, in State of Bihar v. Shailabala Devi,
[1952] S.C.R. 654, an early decision of this Court said that an
article, in order to be banned must have a tendency to excite
persons to acts of violence (at page 662-663). The test laid
down in the said decision was that the article should be
considered as a whole in a fair free liberal spirit and then it must
43
be decided what effect it would have on the mind of a
reasonable reader. (at pages 664-665)
40. In Ramji Lal Modi v. The State of U.P., [1957] S.C.R.
860 at page 867, this court upheld Section 295A of the Indian
Penal Code only because it was read down to mean that
aggravated forms of insults to religion must have a tendency to
disrupt public order. Similarly, in Kedar Nath Singh v. State of
Bihar, 1962 Supp. (2) S.C.R. 769, Section 124A of the Indian
Penal Code was upheld by construing it narrowly and stating
that the offence would only be complete if the words
complained of have a tendency of creating public disorder by
violence. It was added that merely creating disaffection or
creating feelings of enmity in certain people was not good
enough or else it would violate the fundamental right of free
speech under Article 19(1)(a). Again, in Dr. Ramesh Yeshwant
Prabhoo v. Prabhakar Kashinath Kunte & Ors., 1996 (1)
SCC 130, Section 123 (3A) of the Representation of People
Act was upheld only if the enmity or hatred that was spoken
44
about in the Section would tend to create immediate public
disorder and not otherwise.
41. Viewed at either by the standpoint of the clear and
present danger test or the tendency to create public disorder,
Section 66A would not pass muster as it has no element of any
tendency to create public disorder which ought to be an
essential ingredient of the offence which it creates.
Defamation
42. Defamation is defined in Section 499 of the Penal Code
as follows:
“499. Defamation.—Whoever, by words either
spoken or intended to be read, or by signs or by
visible representations, makes or publishes any
imputation concerning any person intending to
harm, or knowing or having reason to believe that
such imputation will harm, the reputation of such
person, is said, except in the cases hereinafter
excepted, to defame that person.
Explanation 1.—It may amount to defamation to
impute anything to a deceased person, if the
imputation would harm the reputation of that person
if living, and is intended to be hurtful to the feelings
of his family or other near relatives.
45
Explanation 2.—It may amount to defamation to
make an imputation concerning a company or an
association or collection of persons as such.
Explanation 3.—An imputation in the form of an
alternative or expressed ironically, may amount to
defamation.
Explanation 4.—No imputation is said to harm a
person's reputation, unless that imputation directly
or indirectly, in the estimation of others, lowers the
moral or intellectual character of that person, or
lowers the character of that person in respect of his
caste or of his calling, or lowers the credit of that
person, or causes it to be believed that the body of
that person is in a loathsome state, or in a state
generally considered as disgraceful.”
43. It will be noticed that for something to be defamatory,
injury to reputation is a basic ingredient. Section 66A does not
concern itself with injury to reputation. Something may be
grossly offensive and may annoy or be inconvenient to
somebody without at all affecting his reputation. It is clear
therefore that the Section is not aimed at defamatory
statements at all.
Incitement to an offence:
46
44. Equally, Section 66A has no proximate connection with
incitement to commit an offence. Firstly, the information
disseminated over the internet need not be information which
“incites” anybody at all. Written words may be sent that may be
purely in the realm of “discussion” or “advocacy” of a “particular
point of view”. Further, the mere causing of annoyance,
inconvenience, danger etc., or being grossly offensive or having
a menacing character are not offences under the Penal Code at
all. They may be ingredients of certain offences under the
Penal Code but are not offences in themselves. For these
reasons, Section 66A has nothing to do with “incitement to an
offence”. As Section 66A severely curtails information that may
be sent on the internet based on whether it is grossly offensive,
annoying, inconvenient, etc. and being unrelated to any of the
eight subject matters under Article 19(2) must, therefore, fall
foul of Article 19(1)(a), and not being saved under Article 19(2),
is declared as unconstitutional.
Decency or Morality
47
45. This Court in Ranjit Udeshi v. State of Maharashtra
[1965] 1 S.C.R. 65 took a rather restrictive view of what would
pass muster as not being obscene. The Court followed the test
laid down in the old English judgment in Hicklin’s case which
was whether the tendency of the matter charged as obscene is
to deprave and corrupt those whose minds are open to such
immoral influences and into whose hands a publication of this
sort may fall. Great strides have been made since this decision
in the UK, United States as well as in our country. Thus, in
Director General, Directorate General of Doordarshan v.
Anand Patwardhan, 2006 (8) SCC 433, this Court noticed the
law in the United States and said that a material may be
regarded as obscene if the average person applying
contemporary community standards would find that the subject
matter taken as a whole appeals to the prurient interest and
that taken as a whole it otherwise lacks serious literary artistic,
political, educational or scientific value (see Para 31).
46. In a recent judgment of this Court, Aveek Sarkar v. State
of West Bengal, 2014 (4) SCC 257, this Court referred to
48
English, U.S. and Canadian judgments and moved away from
the Hicklin test and applied the contemporary community
standards test.
47. What has been said with regard to public order and
incitement to an offence equally applies here. Section 66A
cannot possibly be said to create an offence which falls within
the expression ‘decency’ or ‘morality’ in that what may be
grossly offensive or annoying under the Section need not be
obscene at all – in fact the word ‘obscene’ is conspicuous by its
absence in Section 66A.
48. However, the learned Additional Solicitor General asked
us to read into Section 66A each of the subject matters
contained in Article 19(2) in order to save the constitutionality of
the provision. We are afraid that such an exercise is not
possible for the simple reason that when the legislature
intended to do so, it provided for some of the subject matters
contained in Article 19(2) in Section 69A. We would be doing
complete violence to the language of Section 66A if we were to
49
read into it something that was never intended to be read into it.
Further, he argued that the statute should be made workable,
and the following should be read into Section 66A:
“(i) Information which would appear highly
abusive, insulting, pejorative, offensive by
reasonable person in general, judged by the
standards of an open and just multi-caste,
multi-religious, multi racial society;
- Director of Public Prosecutions v. Collins –
(2006) 1 WLR 2223 @ para 9 and 21
- Connolly v. Director of Public Prosecutions
reported in [2008] 1 W.L.R. 276/2007 [1] All ER
1012
- House of Lords Select Committee 1st Report of
Session 2014-2015 on Communications titled as
“Social Media And Criminal Offences” @ pg 260
of compilation of judgments Vol I Part B
(ii) Information which is directed to incite or can
produce imminent lawless action Brandenburg v.
Ohio 395 U.S. 444 (1969);
(iii) Information which may constitute credible
threats of violence to the person or damage;
(iv) Information which stirs the public to anger,
invites violent disputes brings about condition of
violent unrest and disturbances;
Terminiello v. Chicago 337 US 1 (1949)
(v) Information which advocates or teaches the duty,
necessity or proprietary of violence as a means of
accomplishing political, social or religious reform
and/or justifies commissioning of violent acts with
an intent to exemplify glorify such violent means to
50
accomplish political, social, economical or religious
reforms
[Whitney vs. California 274 US 357];
(vi) Information which contains fighting or abusive
material;
Chaplinsky v. New Hampshire, 315 U.S. 568
(1942)
(vii) Information which promotes hate speech i.e.
(a)Information which propagates hatred towards
individual or a groups, on the basis of race,
religion, religion, casteism, ethnicity,
(b)Information which is intended to show the
supremacy of one particular
religion/race/caste by making disparaging,
abusive and/or highly inflammatory remarks
against religion/race/caste.
(c)Information depicting religious deities, holy
persons, holy symbols, holy books which are
created to insult or to show contempt or lack
of reverence for such religious deities, holy
persons, holy symbols, holy books or towards
something which is considered sacred or
inviolable.
(viii) Satirical or iconoclastic cartoon and caricature
which fails the test laid down in Hustler Magazine,
Inc. v. Falwell 485 U.S. 46 (1988)
(ix) Information which glorifies terrorism and use of
drugs;
(x) Information which infringes right of privacy of the
others and includes acts of cyber bullying,
harassment or stalking.
51
(xi) Information which is obscene and has the
tendency to arouse feeling or revealing an overt
sexual desire and should be suggestive of deprave
mind and designed to excite sexual passion in
persons who are likely to see it.
Aveek Sarkar and Anr. vs. State of West Bengal
and Ors. (2014) 4 SCC 257.
(xii) Context and background test of obscenity.
Information which is posted in such a context or
background which has a consequential effect of
outraging the modesty of the pictured individual.
Aveek Sarkar and Anr. vs. State of West Bengal
and Ors. (2014) 4 SCC 257.”
49. What the learned Additional Solicitor General is asking us
to do is not to read down Section 66A – he is asking for a
wholesale substitution of the provision which is obviously not
possible.
Vagueness
50. Counsel for the petitioners argued that the language used
in Section 66A is so vague that neither would an accused
person be put on notice as to what exactly is the offence which
has been committed nor would the authorities administering the
Section be clear as to on which side of a clearly drawn line a
particular communication will fall.
52
51. We were given Collin’s dictionary, which defined most of
the terms used in Section 66A, as follows:
“Offensive:-
1. Unpleasant or disgusting, as to the senses
2. Causing anger or annoyance; insulting
3. For the purpose of attack rather than defence.
Menace:-
1. To threaten with violence, danger, etc.
2. A threat of the act of threatening
3. Something menacing; a source of danger
4. A nuisance
Annoy:-
1. To irritate or displease
2. To harass with repeated attacks
Annoyance
1. The feeling of being annoyed
2. The act of annoying.
Inconvenience
1. The state of quality of being inconvenient
2. Something inconvenient; a hindrance, trouble, or difficulty
Danger:-
1. The state of being vulnerable to injury, loss, or evil risk
2. A person or a thing that may cause injury pain etc.
Obstruct:-
1. To block (a road a passageway, etc.) with an obstacle
2. To make (progress or activity) difficult.
3. To impede or block a clear view of.
53
Obstruction:- a person or a thing that obstructs.
Insult:-
1. To treat, mention, or speak to rudely; offend; affront
2. To assault; attack
3. An offensive or contemptuous remark or action; affront;
slight
4. A person or thing producing the effect of an affront =
some television is an insult to intelligence
5. An injury or trauma.”
52. The U.S. Supreme Court has repeatedly held in a series
of judgments that where no reasonable standards are laid down
to define guilt in a Section which creates an offence, and where
no clear guidance is given to either law abiding citizens or to
authorities and courts, a Section which creates an offence and
which is vague must be struck down as being arbitrary and
unreasonable. Thus, in Musser v. Utah, 92 L. Ed. 562, a Utah
statute which outlawed conspiracy to commit acts injurious to
public morals was struck down.
53. In Winters v. People of State of New York, 92 L. Ed.
840, a New York Penal Law read as follows:-
“1141. Obscene prints and articles
54
1. A person……who,
2. Prints, utters, publishes, sells, lends, gives away,
distributes or shows, or has in his possession with
intent to sell, lend, give away, distribute or show, or
otherwise offers for sale, loan, gift or distribution,
any book, pamphlet, magazine, newspaper or other
printed paper devoted to the publication, and
principally made up of criminal news, police reports,
or accounts of criminal deeds, or pictures, or stories
of deeds of bloodshed, lust or crime;
……………………………………………..
'Is guilty of a misdemeanor, …..'” (at page 846)
The court in striking down the said statute held:
“The impossibility of defining the precise line
between permissible uncertainty in statutes caused
by describing crimes by words well understood
through long use in the criminal law - obscene,
lewd, lascivious, filthy, indecent or disgusting—and
the unconstitutional vagueness that leaves a person
uncertain as to the kind of prohibited conduct—
massing stories to incite crime—has resulted in
three arguments of this case in this Court. The
legislative bodies in draftsmanship obviously have
the same difficulty as do the judicial in
interpretation. Nevertheless despite the difficulties,
courts must do their best to determine whether or
not the vagueness is of such a character 'that men
of common intelligence must necessarily guess at
its meaning.' Connally v. General Constr. Co., 269
U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322. The
entire text of the statute or the subjects dealt with
may furnish an adequate standard. The present
case as to a vague statute abridging free speech
55
involves the circulation of only vulgar magazines.
The next may call for decision as to free expression
of political views in the light of a statute intended to
punish subversive activities.
The subsection of the New York Penal Law, as now
interpreted by the Court of Appeals prohibits
distribution of a magazine principally made up of
criminal news or stories of deeds of bloodshed, or
lust, so massed as to become vehicles for inciting
violent and depraved crimes against the person. But
even considering the gloss put upon the literal
meaning by the Court of Appeals' restriction of the
statute to collections of stories 'so massed as to
become vehicles for inciting violent and depraved
crimes against the person * * * not necessarily * * *
sexual passion,' we find the specification of
publications, prohibited from distribution, too
uncertain and indefinite to justify the conviction of
this petitioner. Even though all detective tales and
treatises on criminology are not forbidden, and
though publications made up of criminal deeds not
characterized by bloodshed or lust are omitted from
the interpretation of the Court of Appeals, we think
fair use of collections of pictures and stories would
be interdicted because of the utter impossibility of
the actor or the trier to know where this new
standard of guilt would draw the line between the
allowable and the forbidden publications. No intent
or purpose is required—no indecency or obscenity
in any sense heretofore known to the law. 'So
massed as to incite to crime' can become
meaningful only by concrete instances. This one
example is not enough. The clause proposes to
punish the printing and circulation of publications
that courts or juries may think influence generally
persons to commit crime of violence against the
person. No conspiracy to commit a crime is
required. See Musser v. State of Utah, 68 S.Ct. 397,
this Term. It is not an effective notice of new crime.
56
The clause has no technical or common law
meaning. Nor can light as to the meaning be gained
from the section as a whole or the Article of the
Penal Law under which it appears. As said in the
Cohen Grocery Co. case, supra, 255 U.S. at page
89, 41 S.Ct. at page 300, 65 L.Ed. 516, 14 A.L.R.
1045:
'It leaves open, therefore, the widest conceivable
inquiry, the scope of which no one can foresee and
the result of which no one can foreshadow or
adequately guard against.'
The statute as construed by the Court of Appeals
does not limit punishment to the indecent and
obscene, as formerly understood. When stories of
deeds of bloodshed, such as many in the accused
magazines, are massed so as to incite to violent
crimes, the statute is violated. it does not seem to
us that an honest distributor of publications could
know when he might be held to have ignored such a
prohibition. Collections of tales of war horrors,
otherwise unexceptionable, might well be found to
be 'massed' so as to become 'vehicles for inciting
violent and depraved crimes.' Where a statute is so
vague as to make criminal an innocent act, a
conviction under it cannot be sustained. Herndon v.
Lowry, 301 U.S. 242, 259, 57 S.Ct. 732, 739, 81
L.Ed. 1066.” (at page 851-852)
54. In Burstyn v. Wilson, 96 L. Ed. 1098, sacrilegious
writings and utterances were outlawed. Here again, the U.S.
Supreme Court stepped in to strike down the offending Section
stating:
57
“It is not a sufficient answer to say that 'sacrilegious'
is definite, because all subjects that in any way
might be interpreted as offending the religious
beliefs of any one of the 300 sects of the United
States are banned in New York. To allow such
vague, undefinable powers of censorship to be
exercised is bound to have stultifying consequences
on the creative process of literature and art—for the
films are derived largely from literature. History does
not encourage reliance on the wisdom and
moderation of the censor as a safeguard in the
exercise of such drastic power over the minds of
men. We not only do not know but cannot know
what is condemnable by 'sacrilegious.' And if we
cannot tell, how are those to be governed by the
statute to tell? (at page 1121)
55. In City of Chicago v. Morales et al, 527 U.S. 41 (1999),
a Chicago Gang Congregation Ordinance prohibited criminal
street gang members from loitering with one another or with
other persons in any public place for no apparent purpose. The
Court referred to an earlier judgment in United States v. Reese
92 U.S. 214 (1875) at 221 in which it was stated that the
Constitution does not permit a legislature to set a net large
enough to catch all possible offenders and leave it to the Court
to step in and say who could be rightfully detained and who
should be set at liberty. It was held that the broad sweep of the
Ordinance violated the requirement that a legislature needs to
58
meet: to establish minimum guidelines to govern law
enforcement. As the impugned Ordinance did not have any
such guidelines, a substantial amount of innocent conduct
would also be brought within its net, leading to its
unconstitutionality.
56. It was further held that a penal law is void for vagueness if
it fails to define the criminal offence with sufficient definiteness.
Ordinary people should be able to understand what conduct is
prohibited and what is permitted. Also, those who administer
the law must know what offence has been committed so that
arbitrary and discriminatory enforcement of the law does not
take place.
57. Similarly, in Grayned v. City of Rockford, 33 L.Ed. 2d.
222, the State of Illinois provided in an anti noise ordinance as
follows:
“'(N)o person, while on public or private grounds
adjacent to any building in which a school or any
class thereof is in session, shall willfully make or
assist in the making of any noise or diversion which
disturbs or tends to disturb the peace or good order
59
of such school session or class thereof. . . .' Code of
Ordinances, c. 28, § 19.2(a).”
The law on the subject of vagueness was clearly stated
thus:
“It is a basic principle of due process that an
enactment is void for vagueness if its prohibitions
are not clearly defined. Vague laws offend several
important values. First, because we assume that
man is free to steer between lawful and unlawful
conduct, we insist that laws give the person
of ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act
accordingly. Vague laws may trap the innocent by
not providing fair warning. Second, if arbitrary and
discriminatory enforcement is to be prevented, laws
must provide explicit standards for those who apply
them. A vague law impermissibly delegates basic
policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis, with
the attendant dangers of arbitrary and
discriminatory application. Third, but related, where
a vague statute 'abut(s) upon sensitive areas
of basic First Amendment freedoms, it ‘operates to
inhibit the exercise of (those) freedoms.’ Uncertain
meanings inevitably lead citizens to "steer far wider
of the unlawful zone' . . . than if the boundaries of
the forbidden areas were clearly marked.'”(at page
227-228)
58. The anti noise ordinance was upheld on facts in that case
because it fixed the time at which noise disrupts school activity
60
– while the school is in session – and at a fixed place –
‘adjacent’ to the school.
59. Secondly, there had to be demonstrated a causality
between disturbance that occurs and the noise or diversion.
Thirdly, acts have to be willfully done. It is important to notice
that the Supreme Court specifically held that “undesirables” or
their “annoying conduct” may not be punished. It is only on
these limited grounds that the said Ordinance was considered
not to be impermissibly vague.
60. In Reno, Attorney General of the United States, et al.
v. American Civil Liberties Union et al., 521 U.S. 844 (1997),
two provisions of the Communications Decency Act of 1996
which sought to protect minors from harmful material on the
internet were adjudged unconstitutional. This judgment is a
little important for two basic reasons – that it deals with a penal
offence created for persons who use the internet as also for the
reason that the statute which was adjudged unconstitutional
uses the expression “patently offensive” which comes extremely
61
close to the expression “grossly offensive” used by the
impugned Section 66A. Section 223(d), which was adjudged
unconstitutional, is set out hereinbelow:-
“223 (d) Whoever—
“(1) in interstate or foreign communications
knowingly—
(A) uses an interactive computer service to send to
a specific person or persons under 18 years of age,
or
(B) uses any interactive computer service to display
in a manner available to a person under 18 years of
age, “any comment, request, suggestion, proposal,
image, or other communication that, in context,
depicts or describes, in terms patently offensive as
measured by contemporary community standards,
sexual or excretory activities or organs, regardless
of whether the user of such service placed the call
or initiated the communication; or
(2) knowingly permits any telecommunications
facility under such person's control to be used for an
activity prohibited by paragraph (1) with the intent
that it be used for such activity,
shall be fined under Title 18, or imprisoned not more
than two years, or both.” (at page 860)
Interestingly, the District Court Judge writing of the
internet said:
62
“[i]t is no exaggeration to conclude that the Internet
has achieved, and continues to achieve, the most
participatory marketplace of mass speech that this
country – and indeed the world – as yet seen. The
plaintiffs in these actions correctly describe the
‘democratizing’ effects of Internet communication:
individual citizens of limited means can speak to a
worldwide audience on issues of concern to them.
Federalists and Anti-federalists may debate the
structure of their government nightly, but these
debates occur in newsgroups or chat rooms rather
than in pamphlets. Modern-day Luthers still post
their theses, but to electronic bulletins boards rather
than the door of the Wittenberg Schlosskirche.
More mundane (but from a constitutional
perspective, equally important) dialogue occurs
between aspiring artists, or French cooks, or dog
lovers, or fly fishermen.” 929 F. Supp. At 881. (at
page 425)
61. The Supreme Court held that the impugned statute lacked
the precision that the first amendment required when a statute
regulates the content of speech. In order to deny minors
access to potentially harmful speech, the impugned Act
effectively suppresses a large amount of speech that adults
have a constitutional right to receive and to address to one
another.
63
62. Such a burden on adult speech is unacceptable if less
restrictive alternatives would be as effective in achieving the
legitimate purpose that the statute was enacted to serve. It was
held that the general undefined term “patently offensive” covers
large amounts of non-pornographic material with serious
educational or other value and was both vague and over broad.
It was, thus, held that the impugned statute was not
narrowly tailored and would fall foul of the first amendment.
63. In Federal Communications Commission v. Fox
Television Stations, 132 S.Ct. 2307, it was held:
“A fundamental principle in our legal system is that
laws which regulate persons or entities must give
fair notice of conduct that is forbidden or required.
See Connally v. General Constr. Co., 269 U. S.
385, 391 (1926) (“[A] statute which either forbids or
requires the doing of an act in terms so vague that
men of common intelligence must necessarily guess
at its meaning and differ as to its application,
violates the first essential of due process of law”);
Papachristou v. Jacksonville, 405 U. S. 156, 162
(1972) (“Living under a rule of law entails various
suppositions, one of which is that ‘[all persons] are
entitled to be informed as to what the State
commands or forbids’” (quoting Lanzetta v. New
Jersey, 306 U. S. 451, 453 (1939) (alteration in
original))). This requirement of clarity in regulation is
64
essential to the protections provided by the Due
Process Clause of the Fifth Amendment.
See United States v. Williams, 553 U. S. 285, 304
(2008). It requires the invalidation of laws that are
impermissibly vague. A conviction or punishment
fails to comply with due process if the statute or
regulation under which it is obtained “fails to provide
a person of ordinary intelligence fair notice of what
is prohibited, or is so standardless that it authorizes
or encourages seriously discriminatory
enforcement.” Ibid. As this Court has explained, a
regulation is not vague because it may at times be
difficult to prove an incriminating fact but rather
because it is unclear as to what fact must be
proved. See id., at 306.
Even when speech is not at issue, the void for
vagueness doctrine addresses at least two
connected but discrete due process concerns: first,
that regulated parties should know what is required
of them so they may act accordingly; second,
precision and guidance are necessary so that those
enforcing the law do not act in an arbitrary or
discriminatory way. See Grayned v. City of
Rockford, 408 U. S. 104, 108–109 (1972). When
speech is involved, rigorous adherence to those
requirements is necessary to ensure that ambiguity
does not chill protected speech.”(at page 2317)
64. Coming to this Court’s judgments, in State of Madhya
Pradesh v. Baldeo Prasad, [1961] 1 S.C.R. 970 an inclusive
definition of the word “goonda” was held to be vague and the
offence created by Section 4A of the Goondas Act was,
65
therefore, violative of Article 19(1)(d) and (e) of the Constitution.
It was stated:
“Incidentally it would also be relevant to point out
that the definition of the word "goonda" affords no
assistance in deciding which citizen can be put
under that category. It is an inclusive definition and
it does not indicate which tests have to be applied in
deciding whether a person falls in the first part of
the definition. Recourse to the dictionary meaning of
the word would hardly be of any assistance in this
matter. After all it must be borne in mind that the Act
authorises the District Magistrate to deprive a
citizen of his fundamental right under Art. 19(1)(d)
and (e), and though the object of the Act and its
purpose would undoubtedly attract the provisions of
Art. 19(5) care must always be taken in passing
such acts that they provide sufficient safeguards
against casual, capricious or even malicious
exercise of the powers conferred by them. It is well
known that the relevant provisions of the Act are
initially put in motion against a person at a lower
level than the District magistrate, and so it is always
necessary that sufficient safeguards should be
provided by the Act to protect the fundamental rights
of innocent citizens and to save them from
unnecessary harassment. That is why we think the
definition of the word "goonda" should have given
necessary assistance to the District Magistrate in
deciding whether a particular citizen falls under the
category of goonda or not; that is another infirmity in
the Act. As we have already pointed out s. 4-A
suffers from the same infirmities as s. 4.
Having regard to the two infirmities in Sections 4,
4-A respectively we do not think it would be possible
to accede to the argument of the Learned
Advocate-General that the operative portion of the
Act can fall under Art. 19(5) of the Constitution. The
66
person against whom action can be taken under the
Act is not entitled to know the source of the
information received by the District Magistrate; he is
only told about his prejudicial activities on which the
satisfaction of the District Magistrate is based that
action should be taken against him under s.4 or s.
4-A. In such a case it is absolutely essential that the
Act must clearly indicate by a proper definition or
otherwise when and under what circumstances a
person can be called a goonda, and it must impose
an obligation on the District Magistrate to apply his
mind to the question as to whether the person
against whom complaints are received is such a
goonda or not. It has been urged before us that
such an obligation is implicit in Sections 4 and 4-A.
We are, however, not impressed by this argument.
Where a statute empowers the specified authorities
to take preventive action against the citizens it is
essential that it should expressly make it a part of
the duty of the said authorities to satisfy themselves
about the existence of what the statute regards as
conditions precedent to the exercise of the said
authority. If the statute is silent in respect of one of
such conditions precedent it undoubtedly
constitutes a serious infirmity which would inevitably
take it out of the provisions of Art. 19(5). The result
of this infirmity is that it has left to the unguided and
unfettered discretion of the authority concerned to
treat any citizen as a goonda. In other words, the
restrictions which it allows to be imposed on the
exercise of the fundamental right of a citizen
guaranteed by Art. 19(1)(d) and (e) must in the
circumstances be held to be unreasonable. That is
the view taken by the High court and we see no
reason to differ from it.” (at pages 979, 980)
65. At one time this Court seemed to suggest that the
doctrine of vagueness was no part of the Constitutional Law of
67
India. That was dispelled in no uncertain terms in K.A. Abbas
v. The Union of India & Another, [1971] 2 S.C.R. 446:
“This brings us to the manner of the exercise of
control and restriction by the directions. Here the
argument is that most of the regulations are vague
and further that they leave no scope for the exercise
of creative genius in the field of art. This poses the
first question before us whether the 'void for
vagueness' doctrine is applicable. Reliance in this
connection is placed on Municipal Committee
Amritsar and Anr. v. The State of Rajasthan . In that
case a Division Bench of this Court lays down that
an Indian Act cannot be declared invalid on the
ground that it violates the due process clause or
that it is vague……” (at page 469)
“These observations which are clearly obiter are apt
to be too generally applied and need to be
explained. While it is true that the principles evolved
by the Supreme Court of the United States of
America in the application of the Fourteenth
Amendment were eschewed in our Constitution and
instead the limits of restrictions on each
fundamental right were indicated in the clauses that
follow the first clause of the nineteenth article, it
cannot be said as an absolute principle that no law
will be considered bad for sheer vagueness. There
is ample authority for the proposition that a law
affecting fundamental rights may be so considered.
A very pertinent example is to be found in State of
Madhya Pradesh and Anr. v. Baldeo Prasad, 1961
(1) SCR 970 where the Central Provinces and Berar
Goondas Act 1946 was declared void for
uncertainty. The condition for the application of
Sections 4 and 4A was that the person sought to be
proceeded against must be a goonda but the
definition of goonda in the Act indicated no tests for
deciding which person fell within the definition. The
68
provisions were therefore held to be uncertain and
vague.
The real rule is that if a law is vague or appears to
be so, the court must try to construe it, as far as
may be, and language permitting, the construction
sought to be placed on it, must be in accordance
with the intention of the legislature. Thus if the law is
open to diverse construction, that construction
which accords best with the intention of the
legislature and advances the purpose of legislation,
is to be preferred. Where however the law admits of
no such construction and the persons applying it are
in a boundless sea of uncertainty and the law prima
facie takes away a guaranteed freedom, the law
must be held to offend the Constitution as was done
in the case of the Goonda Act. This is not
application of the doctrine of due process. The
invalidity arises from the probability of the misuse of
the law to the detriment of the individual. If possible,
the Court instead of striking down the law may itself
draw the line of demarcation where possible but this
effort should be sparingly made and only in the
clearest of cases.” (at pages 470, 471)
66. Similarly, in Harakchand Ratanchand Banthia & Ors. v.
Union of India & Ors., 1969 (2) SCC 166, Section 27 of the
Gold Control Act was struck down on the ground that the
conditions imposed by it for the grant of renewal of licences are
uncertain, vague and unintelligible. The Court held:
“21. We now come to Section 27 of the Act which
relates to licensing of dealers. It was stated on
behalf of the petitioners that the conditions imposed
by sub-section (6) of Section 27 for the grant or
69
renewal of licences are uncertain, vague and
unintelligible and consequently wide and unfettered
power was conferred upon the statutory authorities
in the matter of grant or renewal of licence. In our
opinion this contention is well founded and must be
accepted as correct. Section 27(6)(a) states that in
the matter of issue or renewal of licences the
Administrator shall have regard to “the number of
dealers existing in the region in which the applicant
intends to carry on business as a dealer”. But the
word “region” is nowhere defined in the Act.
Similarly Section 27(6)(b) requires the Administrator
to have regard to “the anticipated demand, as
estimated by him, for ornaments in that region.” The
expression “anticipated demand” is a vague
expression which is not capable of objective
assessment and is bound to lead to a great deal of
uncertainty. Similarly the expression “suitability of
the applicant” in Section 27(6)(e) and “public
interest” in Section 27(6)(g) do not provide any
objective standard or norm or guidance. For these
reasons it must be held that clauses (a),(d),(e) and
(g) of Section 27(6) impose unreasonable
restrictions on the fundamental right of the petitioner
to carry on business and are constitutionally invalid.
It was also contended that there was no reason why
the conditions for renewal of licence should be as
rigorous as the conditions for initial grant of licence.
The requirement of strict conditions for the renewal
of licence renders the entire future of the business
of the dealer uncertain and subjects it to the caprice
and arbitrary will of the administrative authorities.
There is justification for this argument and the
requirement of Section 26 of the Act imposing the
same conditions for the renewal of the licence as for
the initial grant appears to be unreasonable. In our
opinion clauses (a), (b), (e) and (g) are inextricably
bound up with the other clauses of Section 27(6)
and form part of a single scheme. The result is that
clauses (a), (b), (c), (e) and (g) are not severable
70
and the entire Section 27(6) of the Act must be held
invalid. Section 27(2)(d) of the Act states that a valid
licence issued by the Administrator “may contain
such conditions, limitations and restrictions as the
Administrator may think fit to impose and different
conditions, limitations and restrictions may be
imposed for different classes of dealers”. On the
face of it, this sub-section confers such wide and
vague power upon the Administrator that it is difficult
to limit its scope. In our opinion Section 27(2)(d) of
the Act must be struck down as an unreasonable
restriction on the fundamental right of the petitioners
to carry on business. It appears, however, to us that
if Section 27(2)(d) and Section 27(6) of the Act are
invalid the licensing scheme contemplated by the
rest of Section 27 of the Act cannot be worked in
practice. It is, therefore, necessary for Parliament to
enact fresh legislation imposing appropriate
conditions and restrictions for the grant and renewal
of licences to dealers. In the alternative the Central
Government may make appropriate rules for the
same purpose in exercise of its rule-making power
under Section 114 of the Act.”
67. In A.K. Roy & Ors. v. Union of India & Ors., [1982] 2
S.C.R. 272, a part of Section 3 of the National Security
Ordinance was read down on the ground that “acting in any
manner prejudicial to the maintenance of supplies and services
essential to the community” is an expression so vague that it is
capable of wanton abuse. The Court held:
“What we have said above in regard to the
expressions ‘defence of India’, ‘security of India’,
71
'security of the State' and ‘relations of India with
foreign powers’ cannot apply to the expression
“acting in any manner prejudicial to the
maintenance of supplies and services essential to
the community” which occurs in Section 3(2) of the
Act. Which supplies and services are essential to
the community can easily be defined by the
legislature and indeed, legislations which regulate
the prices and possession of essential commodities
either enumerate those commodities or confer upon
the appropriate Government the power to do so. In
the absence of a definition of ‘supplies and services
essential to the community’, the detaining authority
will be free to extend the application of this clause of
sub-section (2) to any commodities or services the
maintenance of supply of which, according to him, is
essential to the community.
But that is not all. The Explanation to sub-section
(2) gives to the particular phrase in that sub-section
a meaning which is not only uncertain but which, at
any given point of time, will be difficult to ascertain
or fasten upon. According to the Explanation, no
order of detention can be made under the National
Security Act on any ground on which an order of
detention may be made under the Prevention of
Blackmarketing and Maintenance of Supplies of
Essential Commodities Act, 1980. The reason for
this, which is stated in the Explanation itself, is that
for the purposes of sub-section (2), “acting in any
manner prejudicial to the maintenance of supplies
essential to the community” does not include “acting
in any manner prejudicial to the maintenance of
supplies of commodities essential to the community”
as defined in the Explanation to sub-section (1) of
Section 3 of the Act of 1980. Clauses (a) and (b) of
the Explanation to Section 3(1) of the Act of 1980
exhaust almost the entire range of essential
commodities. Clause (a) relates to committing or
instigating any person to commit any offence
72
punishable under the Essential Commodities Act, 10
of 1955, or under any other law for the time being in
force relating to the control of the production, supply
or distribution of, or trade and commerce in, any
commodity essential to the community. Clause (b)
of the Explanation to Section 3(1) of the Act of 1980
relates to dealing in any commodity which is an
essential commodity as defined in the Essential
Commodities Act, 1955, or with respect to which
provisions have been made in any such other law
as is referred to in clause (a). We find it quite
difficult to understand as to which are the remaining
commodities outside the scope of the Act of 1980, in
respect of which it can be said that the maintenance
of their supplies is essential to the community. The
particular clause in sub-section (2) of Section 3 of
the National Security Act is, therefore, capable of
wanton abuse in that, the detaining authority can
place under detention any person for possession of
any commodity on the basis that the authority is of
the opinion that the maintenance of supply of that
commodity is essential to the community. We
consider the particular clause not only vague and
uncertain but, in the context of the Explanation,
capable of being extended cavalierly to supplies,
the maintenance of which is not essential to the
community. To allow the personal liberty of the
people to be taken away by the application of that
clause would be a flagrant violation of the fairness
and justness of procedure which is implicit in the
provisions of Article 21.” (at page 325-326)
68. Similarly, in Kartar Singh v. State of Punjab, (1994) 3
SCC 569 at para 130-131, it was held:
“130. It is the basic principle of legal jurisprudence
that an enactment is void for vagueness if its
73
prohibitions are not clearly defined. Vague laws
offend several important values. It is insisted or
emphasized that laws should give the person of
ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act
accordingly. Vague laws may trap the innocent by
not providing fair warning. Such a law impermissibly
delegates basic policy matters to policemen and
also judges for resolution on an ad hoc and
subjective basis, with the attendant dangers of
arbitrary and discriminatory application. More so
uncertain and undefined words deployed inevitably
lead citizens to “steer far wider of the unlawful zone
… than if the boundaries of the forbidden areas
were clearly marked.
131. Let us examine clause (i) of Section 2(1)(a).
This section is shown to be blissfully and
impermissibly vague and imprecise. As rightly
pointed out by the learned counsel, even an
innocent person who ingenuously and undefiledly
communicates or associates without any knowledge
or having no reason to believe or suspect that the
person or class of persons with whom he has
communicated or associated is engaged in assisting
in any manner terrorists or disruptionists, can be
arrested and prosecuted by abusing or misusing or
misapplying this definition. In ultimate
consummation of the proceedings, perhaps that
guiltless and innoxious innocent person may also be
convicted.”
69. Judged by the standards laid down in the aforesaid
judgments, it is quite clear that the expressions used in 66A are
completely open-ended and undefined. Section 66 in stark
contrast to Section 66A states:
74
“66. Computer related offences.—If any person,
dishonestly or fraudulently, does any act referred to
in Section 43, he shall be punishable with
imprisonment for a term which may extend to three
years or with fine which may extend to five lakh
rupees or with both.
Explanation.—For the purposes of this section,—
(a) the word “dishonestly” shall have the meaning
assigned to it in Section 24 of the Indian Penal
Code (45 of 1860);
(b) the word “fraudulently” shall have the meaning
assigned to it in Section 25 of the Indian Penal
Code (45 of 1860).”
70. It will be clear that in all computer related offences that
are spoken of by Section 66, mens rea is an ingredient and the
expression “dishonestly” and “fraudulently” are defined with
some degree of specificity, unlike the expressions used in
Section 66A.
71. The provisions contained in Sections 66B up to Section
67B also provide for various punishments for offences that are
clearly made out. For example, under Section 66B, whoever
dishonestly receives or retains any stolen computer resource or
communication device is punished with imprisonment. Under
75
Section 66C, whoever fraudulently or dishonestly makes use of
any identification feature of another person is liable to
punishment with imprisonment. Under Section 66D, whoever
cheats by personating becomes liable to punishment with
imprisonment. Section 66F again is a narrowly drawn section
which inflicts punishment which may extend to imprisonment for
life for persons who threaten the unity, integrity, security or
sovereignty of India. Sections 67 to 67B deal with punishment
for offences for publishing or transmitting obscene material
including depicting children in sexually explicit acts in electronic
form.
72. In the Indian Penal Code, a number of the expressions
that occur in Section 66A occur in Section 268.
“268. Public nuisance.—A person is guilty of a
public nuisance who does any act or is guilty of an
illegal omission, which causes any common injury,
danger or annoyance to the public or to the people
in general who dwell or occupy property in the
vicinity, or which must necessarily cause injury,
obstruction, danger or annoyance to persons who
may have occasion to use any public right.
76
A common nuisance is not excused on the
ground that it causes some convenience or
advantage.”
73. It is important to notice the distinction between the
Sections 268 and 66A. Whereas, in Section 268 the various
expressions used are ingredients for the offence of a public
nuisance, these ingredients now become offences in
themselves when it comes to Section 66A. Further, under
Section 268, the person should be guilty of an act or omission
which is illegal in nature – legal acts are not within its net. A
further ingredient is that injury, danger or annoyance must be to
the public in general. Injury, danger or annoyance are not
offences by themselves howsoever made and to whomsoever
made. The expression “annoyance” appears also in Sections
294 and 510 of the IPC:
“294. Obscene acts and songs.—Whoever, to the
annoyance of others,
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene songs,
ballad or words, in or near any public place,
77
shall be punished with imprisonment of either
description for a term which may extend to three
months, or with fine, or with both.
510. Misconduct in public by a drunken person.
—Whoever, in a state of intoxication, appears in any
public place, or in any place which it is a trespass in
him to enter, and there conducts himself in such a
manner as to cause annoyance to any person, shall
be punished with simple imprisonment for a term
which may extend to twenty-four hours, or with fine
which may extend to ten rupees, or with both.”
74. If one looks at Section 294, the annoyance that is spoken
of is clearly defined - that is, it has to be caused by obscene
utterances or acts. Equally, under Section 510, the annoyance
that is caused to a person must only be by another person who
is in a state of intoxication and who annoys such person only in
a public place or in a place for which it is a trespass for him to
enter. Such narrowly and closely defined contours of offences
made out under the Penal Code are conspicuous by their
absence in Section 66A which in stark contrast uses completely
open ended, undefined and vague language.
75. Incidentally, none of the expressions used in Section 66A
are defined. Even “criminal intimidation” is not defined – and
78
the definition clause of the Information Technology Act, Section
2 does not say that words and expressions that are defined in
the Penal Code will apply to this Act.
76. Quite apart from this, as has been pointed out above,
every expression used is nebulous in meaning. What may be
offensive to one may not be offensive to another. What may
cause annoyance or inconvenience to one may not cause
annoyance or inconvenience to another. Even the expression
“persistently” is completely imprecise – suppose a message is
sent thrice, can it be said that it was sent “persistently”? Does
a message have to be sent (say) at least eight times, before it
can be said that such message is “persistently” sent? There is
no demarcating line conveyed by any of these expressions –
and that is what renders the Section unconstitutionally vague.
77. However, the learned Additional Solicitor General argued
before us that expressions that are used in Section 66A may be
incapable of any precise definition but for that reason they are
not constitutionally vulnerable. He cited a large number of
79
judgments in support of this submission. None of the cited
judgments dealt with a Section creating an offence which is
saved despite its being vague and in capable of any precise
definition. In fact, most of the judgments cited before us did not
deal with criminal law at all. The few that did are dealt with
hereinbelow. For instance, Madan Singh v. State of Bihar,
(2004) 4 SCC 622 was cited before us. The passage cited from
the aforesaid judgment is contained in para 19 of the judgment.
The cited passage is not in the context of an argument that the
word “terrorism” not being separately defined would, therefore,
be struck down on the ground of vagueness. The cited
passage was only in the context of upholding the conviction of
the accused in that case. Similarly, in Zameer Ahmed Latifur
Rehman Sheikh v. State of Maharashtra & Ors., (2010) 5
SCC 246, the expression “insurgency” was said to be undefined
and would defy a precise definition, yet it could be understood
to mean break down of peace and tranquility as also a grave
disturbance of public order so as to endanger the security of the
State and its sovereignty. This again was said in the context of
a challenge on the ground of legislative competence. The
80
provisions of the Maharashtra Control of Organised Crime Act
were challenged on the ground that they were outside the
expression “public order” contained in Entry 1 of List I of the 7th
Schedule of the Constitution of India. This contention was
repelled by saying that the expression “public order” was wide
enough to encompass cases of “insurgency”. This case again
had nothing to do with a challenge raised on the ground of
vagueness.
78. Similarly, in State of M.P. v. Kedia Leather & Liquor
Limited, (2003) 7 SCC 389, paragraph 8 was cited to show that
the expression “nuisance” appearing in Section 133 of the Code
of Criminal Procedure was also not capable of precise
definition. This again was said in the context of an argument
that Section 133 of the Code of Criminal Procedure was
impliedly repealed by the Water (Prevention and Control of
Pollution) Act, 1974. This contention was repelled by saying
that the areas of operation of the two provisions were
completely different and they existed side by side being
mutually exclusive. This case again did not contain any
81
argument that the provision contained in Section 133 was
vague and, therefore, unconstitutional. Similarly, in State of
Karnataka v. Appa Balu Ingale, 1995 Supp. (4) SCC 469, the
word “untouchability” was said not to be capable of precise
definition. Here again, there was no constitutional challenge on
the ground of vagueness.
79. In fact, two English judgments cited by the learned
Additional Solicitor General would demonstrate how vague the
words used in Section 66A are. In Director of Public
Prosecutions v. Collins, (2006) 1 WLR 2223, the very
expression “grossly offensive” is contained in Section 127(1)(1)
of the U.K. Communications Act, 2003. A 61 year old man
made a number of telephone calls over two years to the office
of a Member of Parliament. In these telephone calls and
recorded messages Mr. Collins who held strong views on
immigration made a reference to “Wogs”, “Pakis”, “Black
bastards” and “Niggers”. Mr. Collins was charged with sending
messages which were grossly offensive. The Leicestershire
Justices dismissed the case against Mr. Collins on the ground
that the telephone calls were offensive but not grossly
82
offensive. A reasonable person would not so find the calls to be
grossly offensive. The Queen’s Bench agreed and dismissed
the appeal filed by the Director of Public Prosecutions. The
House of Lords reversed the Queen’s Bench stating:
“9. The parties agreed with the rulings of the
Divisional Court that it is for the Justices to
determine as a question of fact whether a message
is grossly offensive, that in making this
determination the Justices must apply the standards
of an open and just multi-racial society, and that the
words must be judged taking account of their
context and all relevant circumstances. I would
agree also. Usages and sensitivities may change
over time. Language otherwise insulting may be
used in an unpejorative, even affectionate, way, or
may be adopted as a badge of honour (“Old
Contemptibles”). There can be no yardstick of gross
offensiveness otherwise than by the application of
reasonably enlightened, but not perfectionist,
contemporary standards to the particular message
sent in its particular context. The test is whether a
message is couched in terms liable to cause gross
offence to those to whom it relates.
10. In contrast with section 127(2)(a) and its
predecessor subsections, which require proof of an
unlawful purpose and a degree of knowledge,
section 127(1)(a) provides no explicit guidance on
the state of mind which must be proved against a
defendant to establish an offence against the
subsection.”
83
80. Similarly in Chambers v. Director of Public
Prosecutions, [2013] 1 W.L.R. 1833, the Queen’s Bench was
faced with the following facts:
“Following an alert on the Internet social network,
Twitter, the defendant became aware that, due to
adverse weather conditions, an airport from which
he was due to travel nine days later was closed. He
responded by posting several “tweets” on Twitter in
his own name, including the following: “Crap1 Robin
Hood Airport is closed. You’ve got a week and a bit
to get your shit together otherwise I am blowing the
airport sky high1” None of the defendant’s
“followers” who read the posting was alarmed by it
at the time. Some five days after its posting the
defendant’s tweet was read by the duty manager
responsible for security at the airport on a general
Internet search for tweets relating to the airport.
Though not believed to be a credible threat the
matter was reported to the police. In interview the
defendant asserted that the tweet was a joke and
not intended to be menacing. The defendant was
charged with sending by a public electronic
communications network a message of a menacing
character contrary to section 127(1)(a) of the
Communications Act 2003. He was convicted in a
magistrates’ court and, on appeal, the Crown Court
upheld the conviction, being satisfied that the
message was “menacing per se” and that the
defendant was, at the very least, aware that his
message was of a menacing character.”
81. The Crown Court was satisfied that the message in
question was “menacing” stating that an ordinary person seeing
84
the tweet would be alarmed and, therefore, such message
would be “menacing”. The Queen’s Bench Division reversed
the Crown Court stating:
“31. Before concluding that a message is criminal
on the basis that it represents a menace, its precise
terms, and any inferences to be drawn from its
precise terms, need to be examined in the context
in and the means by which the message was sent.
The Crown Court was understandably concerned
that this message was sent at a time when, as we
all know, there is public concern about acts of
terrorism and the continuing threat to the security of
the country from possible further terrorist attacks.
That is plainly relevant to context, but the offence is
not directed to the inconvenience which may be
caused by the message. In any event, the more
one reflects on it, the clearer it becomes that this
message did not represent a terrorist threat, or
indeed any other form of threat. It was posted on
“Twitter” for widespread reading, a conversation
piece for the defendant’s followers, drawing
attention to himself and his predicament. Much
more significantly, although it purports to address
“you”, meaning those responsible for the airport, it
was not sent to anyone at the airport or anyone
responsible for airport security, or indeed any form
of public security. The grievance addressed by the
message is that the airport is closed when the writer
wants it to be open. The language and punctuation
are inconsistent with the writer intending it to be or it
to be taken as a serious warning. Moreover, as Mr.
Armson noted, it is unusual for a threat of a terrorist
nature to invite the person making it to be readily
identified, as this message did. Finally, although we
are accustomed to very brief messages by terrorists
to indicate that a bomb or explosive device has
85
been put in place and will detonate shortly, it is
difficult to imagine a serious threat in which warning
of it is given to a large number of tweet “followers” in
ample time for the threat to be reported and
extinguished.”
82. These two cases illustrate how judicially trained minds
would find a person guilty or not guilty depending upon the
Judge’s notion of what is “grossly offensive” or “menacing”. In
Collins’ case, both the Leicestershire Justices and two Judges
of the Queen’s Bench would have acquitted Collins whereas the
House of Lords convicted him. Similarly, in the Chambers case,
the Crown Court would have convicted Chambers whereas the
Queen’s Bench acquitted him. If judicially trained minds can
come to diametrically opposite conclusions on the same set of
facts it is obvious that expressions such as “grossly offensive”
or “menacing” are so vague that there is no manageable
standard by which a person can be said to have committed an
offence or not to have committed an offence. Quite obviously, a
prospective offender of Section 66A and the authorities who are
to enforce Section 66A have absolutely no manageable
standard by which to book a person for an offence under
Section 66A. This being the case, having regard also to the two
86
English precedents cited by the learned Additional Solicitor
General, it is clear that Section 66A is unconstitutionally vague.
Ultimately, applying the tests referred to in Chintaman
Rao and V.G. Row’s case, referred to earlier in the judgment, it
is clear that Section 66A arbitrarily, excessively and
disproportionately invades the right of free speech and upsets
the balance between such right and the reasonable restrictions
that may be imposed on such right.
Chilling Effect And Overbreadth
83. Information that may be grossly offensive or which causes
annoyance or inconvenience are undefined terms which take
into the net a very large amount of protected and innocent
speech. A person may discuss or even advocate by means of
writing disseminated over the internet information that may be a
view or point of view pertaining to governmental, literary,
scientific or other matters which may be unpalatable to certain
sections of society. It is obvious that an expression of a view on
any matter may cause annoyance, inconvenience or may be
grossly offensive to some. A few examples will suffice. A
87
certain section of a particular community may be grossly
offended or annoyed by communications over the internet by
“liberal views” – such as the emancipation of women or the
abolition of the caste system or whether certain members of a
non proselytizing religion should be allowed to bring persons
within their fold who are otherwise outside the fold. Each one of
these things may be grossly offensive, annoying, inconvenient,
insulting or injurious to large sections of particular communities
and would fall within the net cast by Section 66A. In point of
fact, Section 66A is cast so widely that virtually any opinion on
any subject would be covered by it, as any serious opinion
dissenting with the mores of the day would be caught within its
net. Such is the reach of the Section and if it is to withstand the
test of constitutionality, the chilling effect on free speech would
be total.
84. Incidentally, some of our judgments have recognized this
chilling effect of free speech. In R. Rajagopal v. State of T.N.,
(1994) 6 SCC 632, this Court held:
88
“19. The principle of Sullivan [376 US 254 : 11 L Ed
2d 686 (1964)] was carried forward — and this is
relevant to the second question arising in this case
— in Derbyshire County Council v. Times
Newspapers Ltd. [(1993) 2 WLR 449 : (1993) 1 All
ER 1011, HL] , a decision rendered by the House of
Lords. The plaintiff, a local authority brought an
action for damages for libel against the defendants
in respect of two articles published
in Sunday Times questioning the propriety of
investments made for its superannuation fund. The
articles were headed “Revealed: Socialist tycoon
deals with Labour Chief” and “Bizarre deals of a
council leader and the media tycoon”. A preliminary
issue was raised whether the plaintiff has a cause of
action against the defendant. The trial Judge held
that such an action was maintainable but on appeal
the Court of Appeal held to the contrary. When the
matter reached the House of Lords, it affirmed the
decision of the Court of Appeal but on a different
ground. Lord Keith delivered the judgment agreed to
by all other learned Law Lords. In his opinion, Lord
Keith recalled that in Attorney General v. Guardian
Newspapers Ltd. (No. 2)[(1990) 1 AC 109 : (1988) 3
All ER 545 : (1988) 3 WLR 776, HL] popularly
known as “Spycatcher case”, the House of Lords
had opined that “there are rights available to private
citizens which institutions of… Government are not
in a position to exercise unless they can show that it
is in the public interest to do so”. It was also held
therein that not only was there no public interest in
allowing governmental institutions to sue for libel, it
was “contrary to the public interest because to admit
such actions would place an undesirable fetter on
freedom of speech” and further that action for
defamation or threat of such action “inevitably have
an inhibiting effect on freedom of speech”. The
learned Law Lord referred to the decision of the
United States Supreme Court in New York
Times v. Sullivan [376 US 254 : 11 L Ed 2d 686
89
(1964)] and certain other decisions of American
Courts and observed — and this is significant for
our purposes—
“while these decisions were related most directly
to the provisions of the American Constitution
concerned with securing freedom of speech, the
public interest considerations which underlaid them
are no less valid in this country. What has been
described as ‘the chilling effect’ induced by the
threat of civil actions for libel is very important. Quite
often the facts which would justify a defamatory
publication are known to be true, but admissible
evidence capable of proving those facts is not
available.”
Accordingly, it was held that the action was not
maintainable in law.”
85. Also in S. Khushboo v. Kanniammal, (2010) 5 SCC
600, this Court said:
“47. In the present case, the substance of the
controversy does not really touch on whether
premarital sex is socially acceptable. Instead, the
real issue of concern is the disproportionate
response to the appellant's remarks. If the
complainants vehemently disagreed with the
appellant's views, then they should have contested
her views through the news media or any other
public platform. The law should not be used in a
manner that has chilling effects on the “freedom of
speech and expression”.
86. That the content of the right under Article 19(1)(a)
remains the same whatever the means of communication
including internet communication is clearly established by
90
Reno’s case (supra) and by The Secretary, Ministry of
Information & Broadcasting v. Cricket Association of
Bengal & Anr., (1995) SCC 2 161 at Para 78 already referred
to. It is thus clear that not only are the expressions used in
Section 66A expressions of inexactitude but they are also over
broad and would fall foul of the repeated injunctions of this
Court that restrictions on the freedom of speech must be
couched in the narrowest possible terms. For example, see,
Kedar Nath Singh v. State of Bihar, [1962] Supp. 2 S.C.R.
769 at 808 -809. In point of fact, judgments of the Constitution
Bench of this Court have struck down sections which are similar
in nature. A prime example is the section struck down in the
first Ram Manohar Lohia case, namely, Section 3 of the U.P.
Special Powers Act, where the persons who “instigated”
expressly or by implication any person or class of persons not
to pay or to defer payment of any liability were punishable. This
Court specifically held that under the Section a wide net was
cast to catch a variety of acts of instigation ranging from friendly
advice to systematic propaganda. It was held that in its wide
amplitude, the Section takes in the innocent as well as the
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guilty, bonafide and malafide advice and whether the person be
a legal adviser, a friend or a well wisher of the person
instigated, he cannot escape the tentacles of the Section. The
Court held that it was not possible to predicate with some kind
of precision the different categories of instigation falling within
or without the field of constitutional prohibitions. It further held
that the Section must be declared unconstitutional as the
offence made out would depend upon factors which are
uncertain.
87. In Kameshwar Prasad & Ors. v. The State of Bihar &
Anr., [1962] Supp. 3 S.C.R. 369, Rule 4-A of the Bihar
Government Servants Conduct Rules, 1956 was challenged.
The rule states “No government servant shall participate in any
demonstration or resort to any form of strike in connection with
any matter pertaining to his conditions of service.”
88. The aforesaid rule was challenged under Articles 19 (1)(a)
and (b) of the Constitution. The Court followed the law laid
down in Ram Manohar Lohia’s case [1960] 2 S.C.R. 821 and
92
accepted the challenge. It first held that demonstrations are a
form of speech and then held:
“The approach to the question regarding the
constitutionality of the rule should be whether the
ban that it imposes on demonstrations would be
covered by the limitation of the guaranteed rights
contained in Art. 19 (2) and 19(3). In regard to both
these clauses the only relevant criteria which has
been suggested by the respondent-State is that the
rule is framed "in the interest of public order". A
demonstration may be defined as "an expression of
one's feelings by outward signs." A demonstration
such as is prohibited by, the rule may be of the most
innocent type - peaceful orderly such as the mere
wearing of a badge by a Government servant or
even by a silent assembly say outside office hours -
demonstrations which could in no sense be
suggested to involve any breach of tranquility, or of
a type involving incitement to or capable of leading
to disorder. If the rule had confined itself to
demonstrations of type which would lead to disorder
then the validity of that rule could have been
sustained but what the rule does is the imposition of
a blanket-ban on all demonstrations of whatever
type - innocent as well as otherwise - and in
consequence its validity cannot be upheld.” (at page
374)
89. The Court further went on to hold that remote
disturbances of public order by demonstration would fall outside
Article 19(2). The connection with public order has to be
intimate, real and rational and should arise directly from the
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demonstration that is sought to be prohibited. Finally, the Court
held:
“The vice of the rule, in our opinion, consists in this
that it lays a ban on every type of demonstration -
be the same however innocent and however
incapable of causing a breach of public tranquility
and does not confine itself to those forms of
demonstrations which might lead to that result.” (at
page 384)
90. These two Constitution Bench decisions bind us and
would apply directly on Section 66A. We, therefore, hold that
the Section is unconstitutional also on the ground that it takes
within its sweep protected speech and speech that is innocent
in nature and is liable therefore to be used in such a way as to
have a chilling effect on free speech and would, therefore, have
to be struck down on the ground of overbreadth.
Possibility of an act being abused is not a ground to test
its validity:
91. The learned Additional Solicitor General cited a large
number of judgments on the proposition that the fact that
Section 66A is capable of being abused by the persons who
administered it is not a ground to test its validity if it is otherwise
valid. He further assured us that this Government was
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committed to free speech and that Section 66A would not be
used to curb free speech, but would be used only when
excesses are perpetrated by persons on the rights of others. In
The Collector of Customs, Madras v. Nathella Sampathu
Chetty & Anr., [1962] 3 S.C.R. 786, this Court observed:
“….This Court has held in numerous rulings, to
which it is unnecessary to refer, that the possibility
of the abuse of the powers under the provisions
contained in any statute is no ground for declaring
the provision to be unreasonable or void.
Commenting on a passage in the judgment of the
Court of Appeal of Northern Ireland which stated:
“If such powers are capable of being exercised
reasonably it is impossible to say that they may not
also be exercised unreasonably”
and treating this as a ground for holding the statute
invalid Viscount Simonds observed in Belfast
Corporation v. O.D. Commission [ 1960 AC 490 at
pp. 520-521] :
“It appears to me that the short answer to this
contention (and I hope its shortness will not be
regarded as disrespect) is that the validity of a
measure is not to be determined by its application to
particular cases.… If it is not so exercised (i.e. if the
powers are abused) it is open to challenge and
there is no need for express provision for its
challenge in the statute.”
The possibility of abuse of a statute otherwise valid
does not impart to it any element of invalidity. The
converse must also follow that a statute which is
95
otherwise invalid as being unreasonable cannot be
saved by its being administered in a reasonable
manner. The constitutional validity of the statute
would have to be determined on the basis of its
provisions and on the ambit of its operation as
reasonably construed. If so judged it passes the test
of reasonableness, possibility of the powers
conferred being improperly used is no ground for
pronouncing the law itself invalid and similarly if the
law properly interpreted and tested in the light of the
requirements set out in Part III of the Constitution
does not pass the test it cannot be pronounced valid
merely because it is administered in a manner
which might not conflict with the constitutional
requirements.” (at page 825)
92. In this case, it is the converse proposition which would
really apply if the learned Additional Solicitor General’s
argument is to be accepted. If Section 66A is otherwise invalid,
it cannot be saved by an assurance from the learned Additional
Solicitor General that it will be administered in a reasonable
manner. Governments may come and Governments may go
but Section 66A goes on forever. An assurance from the
present Government even if carried out faithfully would not bind
any successor Government. It must, therefore, be held that
Section 66A must be judged on its own merits without any
reference to how well it may be administered.
96
Severability:
93. The argument of the learned Additional Solicitor General
on this score is reproduced by us verbatim from one of his
written submissions:
“Furthermore it is respectfully submitted that in the
event of Hon’ble Court not being satisfied about the
constitutional validity of either any expression or a
part of the provision, the Doctrine of Severability as
enshrined under Article 13 may be resorted to.”
94. The submission is vague: the learned Additional Solicitor
General does not indicate which part or parts of Section 66A
can possibly be saved. This Court in Romesh Thappar v. The
State of Madras, [1950] S.C.R. 594 repelled a contention of
severability when it came to the courts enforcing the
fundamental right under Article 19(1)(a) in the following terms:
“It was, however, argued that Section 9(1-A) could
not be considered wholly void, as, under Article
13(1), an existing law inconsistent with a
fundamental right is void only to the extent of the
inconsistency and no more. Insofar as the securing
of the public safety or the maintenance of public
order would include the security of the State, the
impugned provision, as applied to the latter
purpose, was covered by clause (2) of Article 19
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and must, it was said, be held to be valid. We are
unable to accede to this contention. Where a law
purports to authorise the imposition of restrictions
on a fundamental right in language wide enough to
cover restrictions both within and without the limits
of constitutionally permissible legislative action
affecting such right, it is not possible to uphold it
even so far as it may be applied within the
constitutional limits, as it is not severable. So long
as the possibility of its being applied for purposes
not sanctioned by the Constitution cannot be ruled
out, it must be held to be wholly unconstitutional
and void. In other words, clause (2) of Article 19
having allowed the imposition of restrictions on the
freedom of speech and expression only in cases
where danger to the State is involved, an
enactment, which is capable of being applied to
cases where no such danger could arise, cannot be
held to be constitutional and valid to any extent.” (At
page 603)
95. It has been held by us that Section 66A purports to
authorize the imposition of restrictions on the fundamental right
contained in Article 19(1)(a) in language wide enough to cover
restrictions both within and without the limits of constitutionally
permissible legislative action. We have held following K.A.
Abbas’ case (Supra) that the possibility of Section 66A being
applied for purposes not sanctioned by the Constitution cannot
be ruled out. It must, therefore, be held to be wholly
unconstitutional and void. Romesh Thappar’s Case was
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distinguished in R.M.D. Chamarbaugwalla v. The Union of
India, [1957] S.C.R. 930 in the context of a right under Article
19(1)(g) as follows:
“20. In Romesh Thappar v. State of
Madras [ (1950) SCR 594] , the question was as to
the validity of Section 9(1-A) of the Madras
Maintenance of Public Order Act, 23 of 1949. That
section authorised the Provincial Government to
prohibit the entry and circulation within the State of
a newspaper “for the purpose of securing the public
safety or the maintenance of public order.”
Subsequent to the enactment of this statute, the
Constitution came into force, and the validity of the
impugned provision depended on whether it was
protected by Article 19(2), which saved “existing
law insofar as it relates to any matter which
undermines the security of or tends to overthrow
the State.” It was held by this Court that as the
purposes mentioned in Section 9(1-A) of the
Madras Act were wider in amplitude than those
specified in Article 19(2), and as it was not possible
to split up Section 9(1-A) into what was within and
what was without the protection of Article 19(2), the
provision must fail in its entirety. That is really a
decision that the impugned provision was on its
own contents inseverable. It is not an authority for
the position that even when a provision is
severable, it must be struck down on the ground
that the principle of severability is inadmissible
when the invalidity of a statute arises by reason of
its contravening constitutional prohibitions. It
should be mentioned that the decision in Romesh
Thappar v. State of Madras [ (1950) SCR 594] was
referred to in State of Bombay v. F.N.
Balsara [ (1951) SCR 682] and State of
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Bombay v. United Motors (India) Ltd. [ (1953) SCR
1069 at 1098-99] and distinguished.”
96. The present being a case of an Article 19(1)(a) violation,
Romesh Thappar’s judgment would apply on all fours. In an
Article 19(1)(g) challenge, there is no question of a law being
applied for purposes not sanctioned by the Constitution for the
simple reason that the eight subject matters of Article 19(2) are
conspicuous by their absence in Article 19(6) which only speaks
of reasonable restrictions in the interests of the general public.
The present is a case where, as has been held above, Section
66A does not fall within any of the subject matters contained in
Article 19(2) and the possibility of its being applied for purposes
outside those subject matters is clear. We therefore hold that
no part of Section 66A is severable and the provision as a
whole must be declared unconstitutional.
Article 14
97. Counsel for the petitioners have argued that Article 14 is
also infringed in that an offence whose ingredients are vague in
nature is arbitrary and unreasonable and would result in
100
arbitrary and discriminatory application of the criminal law.
Further, there is no intelligible differentia between the medium
of print, broadcast, and real live speech as opposed to speech
on the internet and, therefore, new categories of criminal
offences cannot be made on this ground. Similar offences
which are committed on the internet have a three year
maximum sentence under Section 66A as opposed to
defamation which has a two year maximum sentence. Also,
defamation is a non-cognizable offence whereas under Section
66A the offence is cognizable.
98. We have already held that Section 66A creates an offence
which is vague and overbroad, and, therefore, unconstitutional
under Article 19(1)(a) and not saved by Article 19(2). We have
also held that the wider range of circulation over the internet
cannot restrict the content of the right under Article 19(1)(a) nor
can it justify its denial. However, when we come to
discrimination under Article 14, we are unable to agree with
counsel for the petitioners that there is no intelligible differentia
between the medium of print, broadcast and real live speech as
101
opposed to speech on the internet. The intelligible differentia is
clear – the internet gives any individual a platform which
requires very little or no payment through which to air his views.
The learned Additional Solicitor General has correctly said that
something posted on a site or website travels like lightning and
can reach millions of persons all over the world. If the
petitioners were right, this Article 14 argument would apply
equally to all other offences created by the Information
Technology Act which are not the subject matter of challenge in
these petitions. We make it clear that there is an intelligible
differentia between speech on the internet and other mediums
of communication for which separate offences can certainly be
created by legislation. We find, therefore, that the challenge on
the ground of Article 14 must fail.
Procedural Unreasonableness
99. One other argument must now be considered. According
to the petitioners, Section 66A also suffers from the vice of
procedural unreasonableness. In that, if, for example, criminal
defamation is alleged, the safeguards available under Section
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199 Cr.P.C. would not be available for a like offence committed
under Section 66A. Such safeguards are that no court shall
take cognizance of such an offence except upon a complaint
made by some person aggrieved by the offence and that such
complaint will have to be made within six months from the date
on which the offence is alleged to have been committed.
Further, safeguards that are to be found in Sections 95 and 96
of the Cr.P.C. are also absent when it comes to Section 66A.
For example, where any newspaper book or document
wherever printed appears to contain matter which is obscene,
hurts the religious feelings of some community, is seditious in
nature, causes enmity or hatred to a certain section of the
public, or is against national integration, such book, newspaper
or document may be seized but under Section 96 any person
having any interest in such newspaper, book or document may
within two months from the date of a publication seizing such
documents, books or newspapers apply to the High court to set
aside such declaration. Such matter is to be heard by a Bench
consisting of at least three Judges or in High Courts which
103
consist of less than three Judges, such special Bench as may
be composed of all the Judges of that High Court.
100. It is clear that Sections 95 and 96 of the Criminal
Procedure Code reveal a certain degree of sensitivity to the
fundamental right to free speech and expression. If matter is to
be seized on specific grounds which are relatable to the subject
matters contained in Article 19(2), it would be open for persons
affected by such seizure to get a declaration from a High Court
consisting of at least three Judges that in fact publication of the
so-called offensive matter does not in fact relate to any of the
specified subjects contained in Article 19(2).
Further, Section 196 of the Cr.P.C. states:
“196. Prosecution for offences against the State
and for criminal conspiracy to commit such
offence.— (1) No Court shall take cognizance of—
(a) any offence punishable under Chapter VI or
under Section 153-A, [Section 295-A or sub-section
(1) of Section 505] of the Indian Penal Code, 1860
(45 of 1860), or
(b) a criminal conspiracy to commit such offence, or
(c) any such abetment, as is described in Section
108-A of the Indian Penal Code (45 of 1860),
104
except with the previous sanction of the Central
Government or of the State Government.
[(1-A)
No Court shall take cognizance of—
(a) any offence punishable under Section 153-B or
sub-section (2) or sub-section (3) of Section 505 of
the Indian Penal Code, 1860 (45 of 1860), or
(b) a criminal conspiracy to commit such offence,
except with the previous sanction of the Central
Government or of the State Government or of the
District Magistrate.]
(2) No court shall take cognizance of the offence of
any criminal conspiracy punishable under Section
120-B of the Indian Penal Code (45 of 1860), other
than a criminal conspiracy to commit [an offence]
punishable with death, imprisonment for life or
rigorous imprisonment for a term of two years or
upwards, unless the State Government or the
District Magistrate has consented in writing to the
initiation of the proceedings:
Provided that where the criminal conspiracy is one
to which the provisions of Section 195 apply, no
such consent shall be necessary.
(3) The Central Government or the State
Government may, before according sanction [under
sub-section (1) or sub-section (1-A) and the District
Magistrate may, before according sanction under
sub-section (1-A)] and the State Government or the
District Magistrate may, before giving consent under
sub-section (2), order a preliminary investigation by
a police officer not being below the rank of
Inspector, in which case such police officer shall
have the powers referred to in sub-section (3) of
Section 155.”
105
101. Again, for offences in the nature of promoting enmity
between different groups on grounds of religion etc. or offences
relatable to deliberate and malicious acts intending to outrage
religious feelings or statements that create or promote enmity,
hatred or ill-will between classes can only be taken cognizance
of by courts with the previous sanction of the Central
Government or the State Government. This procedural
safeguard does not apply even when a similar offence may be
committed over the internet where a person is booked under
Section 66A instead of the aforesaid Sections.
Having struck down Section 66A on substantive grounds,
we need not decide the procedural unreasonableness aspect of
the Section.
Section 118 of the Kerala Police Act.
102. Learned counsel for the Petitioner in Writ Petition No. 196
of 2014 assailed sub-section (d) of Section 118 which is set out
hereinbelow:
“118. Penalty for causing grave violation of public
order or danger.- Any person who,-
106
(d) Causes annoyance to any person in an indecent
manner by statements or verbal or comments or
telephone calls or calls of any type or by chasing or
sending messages or mails by any means;
shall, on conviction be punishable with
imprisonment for a term which may extend to three
years or with fine not exceeding ten thousand
rupees or with both.”
103. Learned counsel first assailed the Section on the ground
of legislative competence stating that this being a Kerala Act, it
would fall outside Entries1 and 2 of List II and fall within Entry
31 of List I. In order to appreciate the argument we set out the
relevant entries:
“List - I
31. Posts and telegraphs; telephones, wireless,
broadcasting and other like forms of
communication.
List - II
1. Public order (but not including the use of any
naval, military or air force or any other armed force
of the Union or of any other force subject to the
control of the Union or of any contingent or unit
thereof in aid of the civil power).
2. Police (including railway and village police)
subject to the provisions of entry 2A of List I.”
107
The Kerala Police Act as a whole would necessarily fall
under Entry 2 of List II. In addition, Section 118 would also fall
within Entry 1 of List II in that as its marginal note tells us it
deals with penalties for causing grave violation of public order
or danger.
104. It is well settled that a statute cannot be dissected and
then examined as to under what field of legislation each part
would separately fall. In A.S. Krishna v. State of Madras,
[1957] S.C.R. 399, the law is stated thus:
“The position, then, might thus be summed up :
When a law is impugned on the ground that it is
ultra vires the powers of the legislature which
enacted it, what has to be ascertained is the true
character of the legislation. To do that, one must
have regard to the enactment as a whole, to its
objects and to the scope and effect of its provisions.
If on such examination it is found that the legislation
is in substance one on a matter assigned to the
legislature, then it must be held to be valid in its
entirety, even though it might incidentally trench on
matters which are beyond its competence. It would
be quite an erroneous approach to the question to
view such a statute not as an organic whole, but as
a mere collection of sections, then disintegrate it
into parts, examine under what heads of legislation
those parts would severally fall, and by that process
determine what portions thereof are intra vires, and
what are not.” (at page 410)
108
105. It is, therefore, clear that the Kerala Police Act as a whole
and Section 118 as part thereof falls in pith and substance
within Entry 2 List II, notwithstanding any incidental
encroachment that it may have made on any other Entry in List
I. Even otherwise, the penalty created for causing annoyance in
an indecent manner in pith and substance would fall within
Entry 1 List III which speaks of criminal law and would thus be
within the competence of the State Legislature in any case.
106. However, what has been said about Section 66A would
apply directly to Section 118(d) of the Kerala Police Act, as
causing annoyance in an indecent manner suffers from the
same type of vagueness and over breadth, that led to the
invalidity of Section 66A, and for the reasons given for striking
down Section 66A, Section 118(d) also violates Article 19(1)(a)
and not being a reasonable restriction on the said right and not
being saved under any of the subject matters contained in
Article 19(2) is hereby declared to be unconstitutional.
109
Section 69A and the Information Technology (Procedure
and Safeguards for Blocking for Access of Information by
Public) Rules, 2009.
107. Section 69A of the Information Technology Act has
already been set out in paragraph 2 of the judgment. Under
sub-section (2) thereof, the 2009 Rules have been framed.
Under Rule 3, the Central Government shall designate by
notification in the official gazette an officer of the Central
Government not below the rank of a Joint Secretary as the
Designated Officer for the purpose of issuing direction for
blocking for access by the public any information referable to
Section 69A of the Act. Under Rule 4, every organization as
defined under Rule 2(g), (which refers to the Government of
India, State Governments, Union Territories and agencies of the
Central Government as may be notified in the Official Gazette
by the Central Government)– is to designate one of its officers
as the “Nodal Officer”. Under Rule 6, any person may send
their complaint to the “Nodal Officer” of the concerned
Organization for blocking, which complaint will then have to be
examined by the concerned Organization regard being had to
the parameters laid down in Section 69A(1) and after being so
110
satisfied, shall transmit such complaint through its Nodal Officer
to the Designated Officer in a format specified by the Rules.
The Designated Officer is not to entertain any complaint or
request for blocking directly from any person. Under Rule 5,
the Designated Officer may on receiving any such request or
complaint from the Nodal Officer of an Organization or from a
competent court, by order direct any intermediary or agency of
the Government to block any information or part thereof for the
reasons specified in 69A(1). Under Rule 7 thereof, the
request/complaint shall then be examined by a Committee of
Government Personnel who under Rule 8 are first to make all
reasonable efforts to identify the originator or intermediary who
has hosted the information. If so identified, a notice shall issue
to appear and submit their reply at a specified date and time
which shall not be less than 48 hours from the date and time of
receipt of notice by such person or intermediary. The
Committee then examines the request and is to consider
whether the request is covered by 69A(1) and is then to give a
specific recommendation in writing to the Nodal Officer of the
concerned Organization. It is only thereafter that the
111
Designated Officer is to submit the Committee’s
recommendation to the Secretary, Department of Information
Technology who is to approve such requests or complaints.
Upon such approval, the Designated Officer shall then direct
any agency of Government or intermediary to block the
offending information. Rule 9 provides for blocking of
information in cases of emergency where delay caused would
be fatal in which case the blocking may take place without any
opportunity of hearing. The Designated Officer shall then, not
later than 48 hours of the issue of the interim direction, bring
the request before the Committee referred to earlier, and only
on the recommendation of the Committee, is the Secretary
Department of Information Technology to pass the final order.
Under Rule 10, in the case of an order of a competent court in
India, the Designated Officer shall, on receipt of a certified copy
of a court order, submit it to the Secretary, Department of
Information Technology and then initiate action as directed by
the Court. In addition to the above safeguards, under Rule 14 a
Review Committee shall meet at least once in two months and
record its findings as to whether directions issued are in
112
accordance with Section 69A(1) and if it is of the contrary
opinion, the Review Committee may set aside such directions
and issue orders to unblock the said information. Under Rule
16, strict confidentiality shall be maintained regarding all the
requests and complaints received and actions taken thereof.
108. Learned counsel for the petitioners assailed the
constitutional validity of Section 69A, and assailed the validity of
the 2009 Rules. According to learned counsel, there is no
pre-decisional hearing afforded by the Rules particularly to the
“originator” of information, which is defined under Section 2(za)
of the Act to mean a person who sends, generates, stores or
transmits any electronic message; or causes any electronic
message to be sent, generated, stored or transmitted to any
other person. Further, procedural safeguards such as which are
provided under Section 95 and 96 of the Code of Criminal
Procedure are not available here. Also, the confidentiality
provision was assailed stating that it affects the fundamental
rights of the petitioners.
113
109. It will be noticed that Section 69A unlike Section 66A is a
narrowly drawn provision with several safeguards. First and
foremost, blocking can only be resorted to where the Central
Government is satisfied that it is necessary so to do. Secondly,
such necessity is relatable only to some of the subjects set out
in Article 19(2). Thirdly, reasons have to be recorded in writing
in such blocking order so that they may be assailed in a writ
petition under Article 226 of the Constitution.
110. The Rules further provide for a hearing before the
Committee set up - which Committee then looks into whether or
not it is necessary to block such information. It is only when the
Committee finds that there is such a necessity that a blocking
order is made. It is also clear from an examination of Rule 8
that it is not merely the intermediary who may be heard. If the
“person” i.e. the originator is identified he is also to be heard
before a blocking order is passed. Above all, it is only after
these procedural safeguards are met that blocking orders are
made and in case there is a certified copy of a court order, only
then can such blocking order also be made. It is only an
114
intermediary who finally fails to comply with the directions
issued who is punishable under sub-section (3) of Section 69A.
111. Merely because certain additional safeguards such as
those found in Section 95 and 96 CrPC are not available does
not make the Rules constitutionally infirm. We are of the view
that the Rules are not constitutionally infirm in any manner.
Section 79 and the Information Technology (Intermediary
Guidelines) Rules, 2011.
112. Section 79 belongs to Chapter XII of the Act in which
intermediaries are exempt from liability if they fulfill the
conditions of the Section. Section 79 states:
“79. Exemption from liability of intermediary in
certain cases.—(1) Notwithstanding anything
contained in any law for the time being in force but
subject to the provisions of sub-sections (2) and (3),
an intermediary shall not be liable for any third party
information, data, or communication link made
available or hosted by him.
(2) The provisions of sub-section (1) shall apply if—
(a) the function of the intermediary is limited to
providing access to a communication system over
which information made available by third parties is
transmitted or temporarily stored or hosted; or
(b) the intermediary does not—
115
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the
transmission;
(c) the intermediary observes due diligence while
discharging his duties under this Act and also
observes such other guidelines as the Central
Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply
if—
(a) the intermediary has conspired or abetted or
aided or induced, whether by threats or promise or
otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being
notified by the appropriate Government or its
agency that any information, data or communication
link residing in or connected to a computer resource
controlled by the intermediary is being used to
commit the unlawful act, the intermediary fails to
expeditiously remove or disable access to that
material on that resource without vitiating the
evidence in any manner.
Explanation.—For the purposes of this section, the
expression “third party information” means any
information dealt with by an intermediary in his
capacity as an intermediary.]”
113. Under the 2011 Rules, by Rule 3 an intermediary has not
only to publish the rules and regulations, privacy policy and
user agreement for access or usage of the intermediary’s
computer resource but he has also to inform all users of the
various matters set out in Rule 3(2). Since Rule 3(2) and 3(4)
are important, they are set out hereinbelow:-
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“3. Due diligence to be observed by
intermediary.—The intermediary shall observe
following due diligence while discharging his duties,
namely:—
(2) Such rules and regulations, terms and conditions
or user agreement shall inform the users of
computer resource not to host, display, upload,
modify, publish, transmit, update or share any
information that—
(a) belongs to another person and to which the user
does not have any right to;
(b) is grossly harmful, harassing, blasphemous
defamatory, obscene, pornographic, paedophilic,
libellous, invasive of another's privacy, hateful, or
racially, ethnically objectionable, disparaging,
relating or encouraging money laundering or
gambling, or otherwise unlawful in any manner
whatever;
(c) harm minors in any way;
(d) infringes any patent, trademark, copyright or
other proprietary rights;
(e) violates any law for the time being in force;
(f) deceives or misleads the addressee about the
origin of such messages or communicates any
information which is grossly offensive or menacing
in nature;
(g) impersonate another person;
(h) contains software viruses or any other computer
code, files or programs designed to interrupt,
destroy or limit the functionality of any computer
resource;
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(i) threatens the unity, integrity, defence, security or
sovereignty of India, friendly relations with foreign
states, or public order or causes incitement to the
commission of any cognisable offence or prevents
investigation of any offence or is insulting any other
nation.
(4) The intermediary, on whose computer system
the information is stored or hosted or published,
upon obtaining knowledge by itself or been brought
to actual knowledge by an affected person in writing
or through e-mail signed with electronic signature
about any such information as mentioned in
sub-rule (2) above, shall act within thirty-six hours
and where applicable, work with user or owner of
such information to disable such information that is
in contravention of sub-rule (2). Further the
intermediary shall preserve such information and
associated records for at least ninety days for
investigation purposes.”
114. Learned counsel for the petitioners assailed Rules 3(2)
and 3(4) on two basic grounds. Firstly, the intermediary is
called upon to exercise its own judgment under sub-rule (4) and
then disable information that is in contravention of sub-rule (2),
when intermediaries by their very definition are only persons
who offer a neutral platform through which persons may interact
with each other over the internet. Further, no safeguards are
provided as in the 2009 Rules made under Section 69A. Also,
for the very reasons that Section 66A is bad, the petitioners
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assailed sub-rule (2) of Rule 3 saying that it is vague and over
broad and has no relation with the subjects specified under
Article 19(2).
115. One of the petitioners’ counsel also assailed Section
79(3)(b) to the extent that it makes the intermediary exercise its
own judgment upon receiving actual knowledge that any
information is being used to commit unlawful acts. Further, the
expression “unlawful acts” also goes way beyond the specified
subjects delineated in Article 19(2).
116. It must first be appreciated that Section 79 is an
exemption provision. Being an exemption provision, it is closely
related to provisions which provide for offences including
Section 69A. We have seen how under Section 69A blocking
can take place only by a reasoned order after complying with
several procedural safeguards including a hearing to the
originator and intermediary. We have also seen how there are
only two ways in which a blocking order can be passed – one
by the Designated Officer after complying with the 2009 Rules
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and the other by the Designated Officer when he has to follow
an order passed by a competent court. The intermediary
applying its own mind to whether information should or should
not be blocked is noticeably absent in Section 69A read with
2009 Rules.
117. Section 79(3)(b) has to be read down to mean that the
intermediary upon receiving actual knowledge that a court order
has been passed asking it to expeditiously remove or disable
access to certain material must then fail to expeditiously
remove or disable access to that material. This is for the
reason that otherwise it would be very difficult for intermediaries
like Google, Facebook etc. to act when millions of requests are
made and the intermediary is then to judge as to which of such
requests are legitimate and which are not. We have been
informed that in other countries worldwide this view has gained
acceptance, Argentina being in the forefront. Also, the Court
order and/or the notification by the appropriate Government or
its agency must strictly conform to the subject matters laid down
in Article 19(2). Unlawful acts beyond what is laid down in
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Article 19(2) obviously cannot form any part of Section 79. With
these two caveats, we refrain from striking down Section 79(3)
(b).
118. The learned Additional Solicitor General informed us that
it is a common practice worldwide for intermediaries to have
user agreements containing what is stated in Rule 3(2).
However, Rule 3(4) needs to be read down in the same manner
as Section 79(3)(b). The knowledge spoken of in the said
sub-rule must only be through the medium of a court order.
Subject to this, the Information Technology (Intermediaries
Guidelines) Rules, 2011 are valid.
119. In conclusion, we may summarise what has been held by
us above:
(a)Section 66A of the Information Technology Act, 2000 is
struck down in its entirety being violative of Article 19(1)(a)
and not saved under Article 19(2).
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(b)Section 69A and the Information Technology (Procedure &
Safeguards for Blocking for Access of Information by Public)
Rules 2009 are constitutionally valid.
(c)Section 79 is valid subject to Section 79(3)(b) being read
down to mean that an intermediary upon receiving actual
knowledge from a court order or on being notified by the
appropriate government or its agency that unlawful acts
relatable to Article 19(2) are going to be committed then fails
to expeditiously remove or disable access to such material.
Similarly, the Information Technology “Intermediary
Guidelines” Rules, 2011 are valid subject to Rule 3 sub-rule
(4) being read down in the same manner as indicated in the
judgment.
(d)Section 118(d) of the Kerala Police Act is struck down being
violative of Article 19(1)(a) and not saved by Article 19(2).
All the writ petitions are disposed in the above terms.
….…..…..………………………...J.
(J. Chelameswar)
….…..…..………………………...J.
(R.F. Nariman)
New Delhi,
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March 24, 2015.
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