SHREYA SINGHAL VERSUS UNION OF INDIA
Supreme Court of India (Division Bench (DB)- Two Judge)
Writ Petition (Crl.), 167 of 2012, Judgment Date: Mar 24, 2015
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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. -
119. In conclusion, we may summarise what has been held by us above: 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). Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid. 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.
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
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 This Section was not in the Act as originally
enacted, but came into force by virtue of an Amendment Act of 2009 with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 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]
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.
(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. 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 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 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;"
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 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 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:
"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.
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. 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 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
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
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 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:
"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 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."
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 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."
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 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 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 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. 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 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 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
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 pre- censorship' 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;
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.
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.
In case of mediums like print media, television and films, it is broadly
not possible to invade privacy of 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.
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.
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 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 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."
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 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 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.
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 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 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 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 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 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 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 553[4].
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 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 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.
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:
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
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 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 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 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.
Information which propagates hatred towards individual or a groups, on the
basis of race, religion, religion, casteism, ethnicity,
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.
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.
(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.
51. We were given Collin's dictionary, which defined most of the terms
used in Section 66A, as follows:
"Offensive:-
Unpleasant or disgusting, as to the senses
Causing anger or annoyance; insulting
For the purpose of attack rather than defence.
Menace:-
To threaten with violence, danger, etc.
A threat of the act of threatening
Something menacing; a source of danger
A nuisance
Annoy:-
To irritate or displease
To harass with repeated attacks
Annoyance
The feeling of being annoyed
The act of annoying.
Inconvenience
The state of quality of being inconvenient
Something inconvenient; a hindrance, trouble, or difficulty
Danger:-
The state of being vulnerable to injury, loss, or evil risk
A person or a thing that may cause injury pain etc.
Obstruct:-
To block (a road a passageway, etc.) with an obstacle
To make (progress or activity) difficult.
To impede or block a clear view of.
Obstruction:- a person or a thing that obstructs.
Insult:-
To treat, mention, or speak to rudely; offend; affront
To assault; attack
An offensive or contemptuous remark or action; affront; slight
A person or thing producing the effect of an affront = some television is
an insult to intelligence
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
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 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.
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:
"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 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 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 - 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 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:
"[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.
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 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, 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 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 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
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 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 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', '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 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 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:
"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 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.
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,
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 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 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 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 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 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."
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 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 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 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 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:
"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 (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 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
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 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 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 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 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.
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 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 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 Bombay v. United
Motors (India) Ltd. [ (1953) SCR 1069 at 1098-99] and distinguished."[pic]
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 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 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 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 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),
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."
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,-
(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."
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)
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.
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 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 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 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.
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 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-
(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:-
"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;
(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 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 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 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:
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).
Section 69A and the Information Technology (Procedure & Safeguards for
Blocking for Access of Information by Public) Rules 2009 are
constitutionally valid.
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.
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,
March 24, 2015.
-----------------------
[1]
[2]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
A person is guilty of an offence if he -
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
cause any such message or matter to be so sent.
A person is guilty of an offence if, for the purpose of causing
annoyance, inconvenience or needless anxiety to another, he-
sends by means of a public electronic communications network, a
message that he knows to be false,
causes such a message to be sent; or
persistently makes use of a public electronic communications network.
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.
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)).
[3]
[4] 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.
[5]
[6] 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."
[7]
[8] 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