Shreya Singhal - SCC

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b
THE
SUPREME COURT CAS
(2015) 5SCC
MAN, JJ.)
SHREYA SINGHAL Petitioner;
d UNION, OF INDIA
196 of 2014, Writ Petitions (Cy Nos.

758 of 2014, decided’é}
Freedom of speech and expres aie ‘to express

© unpalatable vicws, cause annoy; e grossly offend, so
long as it does not amount
connection with any of the
Freedom to express views <é
while an informed cifizeri
the culture of open dial
f ultimate truth is evolv “free trade eas” in a competitive
detail Sho »J,N, P, Q, W and X]
—_— alana
. Informat
Informatio,
Kilormation Technology (Procedure and Safeguards for Blocking for Access

f Infoymation by Public) Rule, | 2009 —_ Rr 3 to 10, 14 and 16 — Rules,
Article 32 of the Constitution of India

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2 SUPREME COURT CASES (2015) 5 8CC

D. Information Technology, Internet, Computer and Cyber Laws —
Information Technology (Intermediary Guidelines) Rules, 2011 — Rr. 3(2)
& (4) — Held, are valid subject to sub-rule (4) being read down ,—
Constitution of India, Arts. 19(1)(a) and 19(2) s
E. Police — Kerala Police Act, 1960 (5 of 1961) — S. 118(d)
violative of Art. 19(1)(a) and not saved by Art. 19(2) of the Const
hence struck down — Constitution of India, Arts. 19(1)(a) and 19(2) ,
I. SCOPE OF FREEDOM OF SPEECH AND EXPRESSION
F. Constitution of India — Preamble and Art. 19(1)(a) =

freedom of speech and expression from standpoints of:
individual and democratic form of government — Concept of
ideas” in competitive “marketplace of ideas”
G. Constitution of India — Arts. 19(1)(a) and OR) — Freedom of
speech and expression —_— Content —_— Concepts of d Uussig, , advocacy and
dvocacy are core
when discussion or advocacy reaches level of

a proximate relation with any of the
Shortnotes 7 he >
“advocacy” $i)
order to be reasonable
as to abridge or restrict
ight subject-matters set out under

de the pale of Art. 19(2), Indian
: hus, US Court judgments have great
edom of speech and expression in India —
External aids — Foreign decisions —
SITREYA SINGIIAL v. UNION OF INDIA 3
I. Constitution of India — Arts. 19()(a) & (2) — Grounds for testing

reasonableness of restrictions on freedom of speech and expression, heldy
cannot be dehors Art. 19(2) — A law restricting freedom of speech and
sa)
expression cannot pass muster if it is merely in the interest of the gene

public — Such law has to be covered by one of the eight subject-matte¥s s&§,
out under Art. 19(2) — If it does not, and is outside the pale of Art 1942);
Indian courts will strike down such law .
Held:
thought, expression, belief, faith and worship. It also says4

sovereign | democratic republic. When it comes to> democracy, fe he
from the point of view v of the liberty of the individual and from the
of our democratic form of government has been recognised by 1 Supreme
Court in its various judgments. Freedom of speech ang fession of opinion is
9
of paramount importance under a democratic cons lion’ which envisages

changes in the composition of legislatures and go amet s and must be
preserved. It lies at the foundation of all demogeap ganisations. Public
criticism is essential to the working of its institution tr tht requires the free
flow of opinions and ideas essential to sustain citizenry.
While an informed citizenry is a | precondition t
d re ulate
i f ideas ”
Ba
1514: Sakal Papers (P) ‘Ltd. v. Union of In
Bennett Coleman & Co. ’ Union of India.
sapopular is at the heart of

cacy reaches the level of
~}
e that a law may be made

y to or lends to cause public
disorder or tends tof jereignty and integrity of India,
the scours of th reign States, etc. These concepts
¥guments of both 1 petitioners and
(Para 13)
19(1)(a) of the Indian Constitution speaks of

of speech and expression without any reference to “the press”. Third,
Peaer thie US Constitution, speech may be abridged, whereas under our
tion, 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). (Par
Insofar as the first apparent difference is concerned, the US Supreme‘&o
has never given literal effect to the declaration that Congress shall make
abridging the freedom of speech. That approach of the US Supremes
continues even today. So far as the second apparent difference is concer,
American Supreme Court has included “expression” as part of freedom of
and the Indian Supreme Court has included “the press”
Article 19(1)(a), so that, as a matter of judicial interpretation, ;
India protect the freedom of speech and expression as well *
Insofar as abridgement and reasonable restrictions are concern!
Supreme Court and the Supreme Court of India have held that a re
to be reasonable must be narrowly tailored or narrowly interpreted so*
or restrict only what is absolutely necessary. It is only wh
subject-matters specified in Article 19(2) of the Indian € = that there is a
vast difference. In the US, if there is a compelling to achieve an
important governmental or societal goal, a law muster 4 in of speech may
pass muster. But in India, 8such law cannot pass | gust s the interest of the
American judgments have great persuasive!

speech and expression and the tests laid dow! }
Chaplinsky v. New Hampshire, 86 L Ed 103% pIS,US 568 (1942);
State of Bihar, 1962 Supp (3) SCR 369: AI 62 SC 1166; Indiar
(Bombay) (P) Ltd. v. Union of India, (1985) 1 BEC 641 : L9OQaFR
Papers (P) Ltd. v. Union of India, (1962) 3 SCR 842: AIR 19 5;5: Supt Central
Prison v. Ram Manohar Lohia, ( SCR 821 : AIR 19 333: 1960 Cri LJ
1002, relied on : .
TI. INFORMATION TEG ‘i 0 * S. 66-4 —

CONSTITUTIONALITY
(1)(v) — Offence under

te “information” through
vice causing “annoyance or
nclusive and broad definition
dissemingted, over
r internet reg
irrespective of whether the s
Held:
Section 66-A of the IT Act, 2000 casts the net very wide—all information,
that is disseminated over the internet is included within its reach. The definition
of information in Section 2(1)(v) 1s an inclusive one. Further, the definition dges,
not refer to what the content of information can be. In fact, it refers only po the
medium through which such information is disseminated. Thus the publ
to know is directly affected by Section 66-A of the IT Act, 2000. Inform
all kinds is roped in—such information may have scientific, literary of
valuc, it may refer to current events, it may be obscene or scditious. Ti fat|
information may cause annoyance or inconvenience to some is hw thaioff
is made out. It is clear that the right of the people to know—t (
ideas—which the internet provides to persons of all kinds is wh;
66-A of the IT Act, 2000. That the information sent has only
inconvenient, grossly offensive, etc., to attract Section 66-A als
freedom of speech and expression of the citiz ticy

speech or expression is directly curbed by, c
in Section 66-A of the IT Act, 2000. °
(2) Reasonableness of restriction andafr Ngee

K. Information Technology, Internét;,€omputer an Cie setriction —
Information Technology Act, 2000 — S. 66
Wider reach and range of circ i
restriction of freedom of speech
the standard tests applicable uni ¢ t. 19(2) of econ fistitution — If the
right to freedom of speech
a, ¢ sight to disseminate
ossible, the access
¢ni its greater impact

j stify its denial — The
k down
‘Arts. 19(1)(a) & (2) — Wider range of reach
ge of circulation of information through a particular medium, held,
independent ground dchors Art. 19(2) on which freedom of specch

M. Information Technology, Internet, Computer and Cyber Laws —
Information Technology Act, 2000 — S. 66-A — Discrimination —+
Intelligible differentia between speech and expression on the internet and
medium of print, broadcast, real live speech, etc. exists — Hence, creatio
new category of criminal offence under S. 66-A is not violative of Art.“14
the ground that it pertains to a different medium — Ilowever, S. 66-
down as it did not fall within Art. 19(2)
Held:
If the right to freedom of speech and expression includ
said right. The wider range of circulation of information or i

cannot restrict the content of the right nor can it justify its denia
the electronic media cannot become its enemies.
regulation over licensing and control and vigilance on the
control can only be exercised within the framework
Constitution. To plead for other grounds is to ple
measures.
Ministry of Information & Broadcasting, Govt. of India v.
SCC 161, applied :
There are intelligible differentia between thé
real live speech as opposed to speech on t eintctne :
verycs or
pething pote Ona. 8Tl
world. If the petitioners were right, this At

to all other offences created by the Informatiéh Technolog
the subject-matter of challenge1 gphese petitions. Thete TS,
differentia between speech on th sO “gommunication
for which separate offences can c : i F - _ Para 102)
A disunction may be ma
the internet and the legislatug
so far as free speech ‘vei:
intelligible differcntia, h
achicved—that there can
over the internct alone
Article 14 challenge ti ind. However, there is nothing
in the features o ¢Miinated on the internet outlined
by the Stat t any relaxation in the Court’s
may be possible
Section 69- -A for: iyv'to speech over the internet, yet the
validity of:,such a law will Ha tested on the touchstone of the tests
stitution. (Paras 26 to 32)
of MP, 1950 SCR 759 :; AIR 1951 sc 118: State of

OF > AIR 1952 SC 196: 1952 Cri LJ 966, applied
re v. State of Delhi, 1950 SCR 519: AIR 1950 SC 211: (1951) 52 Cri LJ 550;
. Faruk v. State of M_P., (1969) 1 SCC 853, relied on
(3) Whether Section 66-A of the IT Act, 2000 can be protected under heads
of public order, defamation, incitement to an offence and decency or morality
On the challenge to Section 66-A of the IT Act, 2000 on ground that the
offence created by the said section has no proximate relation with any of :
eight subject-matters contained in Article 19(2) of the Constitution, the#Staté,,
claimed that the said section can be supported under the heads of publie onfler,”
defamation, incitement to an offence and decency or morality.
(i) Public order
relation with “public order’ ” within the meaning of the expres fon used in
Art. 19(2) of the Constitution — It intends to punislz ersoft who
disseminates “any information” through the internet irrespective ofwhether
to the community at large or to an individual — Information se
annoyance to others and thereby constitute offence cs. S. 66-A but
without any tendency to disrupt public order — ‘T S 66-A fails the
proximity test [see also Shortnotes G, J, P, Q@, R, W andX] —= Constitution
—# of
India — Art. _ 19(2) —_— “Public order” ~—_— Meani i
and Phrases — “Public order”

Held:
Public order is the even tempo of thi
country as a whole or even a specified loca
be distinguished from acts directed agaigst if
society to the extent of causing a general
does a particular act lead to disturbance of the’‘current life Sf the Sent or

does it merely affect an individual Jj Sty undisturbed?
Going by this test, it is clear that § p, 06- AN of the IT. A 2000 i is intended to
punish any person who uses the in val formation that falls
within the sub-clauses of Sect (0g, The recipient of the
disseminated may be to%*

IT Act, 2000 make
require that su essageé. should havetit cl ndency to disrupt public order.

Such ‘Thene im diol have any pote lial whith could disturb the community al
i iclion that may be taken based on the
is no ingredient in this offence of
pene or otherwise without in any manner impacting public order.

(Paras 37 and 38)

Ram Manohar Lohia v. State of Bihar, (1966) 1 SCR 709 : AIR 1966 SC 740: 1966 Cri LJ
608; Supt., Central Prison v. Ram Manohar Lohia, (1960) 2 SCR 821: AIR 1960 SG
633 : 1960 Cri LJ 1002; Arun Ghosh v. State of W.B., (1970) 1 SCC 98 : 1970 SCC (Crif
67, applied —
LJ 1525, considered —
Pushkar Mukherjee v. State of W.B., (1969) 1 SCC 10, cited
(ii) Test of clear and present danger to public order/Tendency

public disorder
O. Information Technology, Internet, Computer an
Information Technology Act, 2000 — S. 66-A
present danger’, “tendency to create”

Held:
The question in every case is whether the w@
that they will bring about the substantive evils

prevent. It is a question of proximity and degre
danger” has been used by the US Supreme’
has been adjusted according to varying fa
repeatedly tO Echoes of it can bé ounce in livdian law as
BL: 337 ‘US 1 (19.40): Brandenbats

Virginia v. Black, 155 L Ed 2d 538 : ‘id
“Raneardjan v. P. Jagjivan
Ram, (1989) 2 SCC 574; State of Bi 2 SER 654 : AIR 1952 SC
329: 1952 Cri LJ 1373; Ramjj.Lal x j SCR 860 : AIR 1957 Sc
620: 1957 Cri LJ 1006; Kee Nath ig
AIR 1962 SC 955 : 19 CB, LJ 103; Ram
Kashinath Kunte, (19 6 136#followed
Abrams v. United States:
Gompers v. Buck’s Stov t 492 : 55 L Ed 797 : 34 LRA
(NS) 874 (1911); 538 US 343 (2003); Watts v.
United States, 224
the standpoint, a thé'cle
eat "public’ disorder teg Ho:
ion! 66 -A of the IT Act, 2000 would
: yy tendency to create public disorder
he offence which it creates. (Para 44) 9g
mation Technology nternet, Computer and Cyber Laws —

Information ‘Technology Act, 2000 — S. 66-A — Not aimed at defamatory
Essential ingredient of — Injury to reputation — Constitution of India —

Art. 19(2) — Words and Phrases — “Defamation” (Para 46)
(iv) Incitement to an offence
Q. Information Technology, Internet, Computer and Cyber Lays
Information Technology Act, 2000 — S. 66-A — Has no prexi
connection with incitement to commit an offence — Constitution of Tdi
Art, 19(2) — Incitement to commit an offence — Words and Phr, |
“Incitement to an offence” — Distinguished from causing of, aniloya i
inconvenience, danger, etc., or being grossly offensive or having a nyenac
character [see also Shortnotes G, J, N, P, R, W and X]|
Held:
Section 66-A of the IT Act, 2000 has no proximate céiYnec
incitement to commit an offenec. Firstly, the information dissemi
internet need not be information which “incites” anybody at all. Ws
i x “advocacy” of a
“particular point of view”. Further, the mere ” ; Of annoyance,
inconvenience, danger, etc., or being grossly offensiv having a menacing
character are not offences under the Penal Code at alti: fay be ingredients
n themsclves. For
sent on the internet based on whether’

inconvenient, etc. and being unrelated : ‘to, al
Article 19(2) must, therefore, fall foul &
under Article 19(2), is declared as unconstittt
(v) Decency and morality
R. Information Technologys
under, does not fall withi

Constitution of India
Phrases — “Obscenity”*
— A:
rt.
+ What
49 may be g
4 — Words
ffensive or annoying
and
under S. 66-A need not be cene at all "

Held:
What has been | sand incitement to an offence
000 cannot possibly be waiteto
alls within the. expre sion “decency” or “morality”
ettihe word “obscene” is conspicuous

000. (Para 50)
wid Patwardhan, (2006) 8 SCC 433; Aveek
: (2014) 2 SCC (Cri) 291, relied on
965) 1 SCR 65: AIR 1965 SC 881 : (1965) 2
#olly v. Director of Public Prosecutions, (2008) 1 WLR 276 : (2007) 2 All ER 1012:
gniello v. Chicago, 93 L Ed 1131 : 337 US 1 (1949); Brandenburg v. Ohiv, 23 L Ed
0: 395 US 444 (1969); Whitney v. California, 71 L Ed 1095 : 274 US 357 (1927);
10 SUPREME COURT CASES (2015) 5 SCC

Chaplinsky v. New Hampshire, 86 L. Ed 1031: 315 US 568 (1942); Hustler Magazine Inc.
v. Falwell, 485 US 46 : 99 L Ed 2d 41 (1988), referred to ao
(vi) Interpretation — Reading into Section 66-A of the IT Act, 2000 the eight ‘
subject-matters contained in Article 19(2) of the Constitution
S. Information Technology, Internet, Computer and Cyber Laws =
Information Technology Act, 2000 — S. 66-A — Interpretation “to §
constitutionality — Court cannot read into S. 66-A the eight subject-nié 7
enumerated in Art. 19(2) of the Constitution when Iegislatur¢’ evel ts
intended to do so — Constitution of India — Art. 19(2) — Hight) pubits
matters contained in Cl. (2) cannot be read into a statutor
legislature did not intend the same
T. Interpretation of Statutes — Subsidiary Rules —
save constitutionality of statute — Court cannot read int
something or add something which is not there, to save its constitiitionality,
when legislature never intended to do so — Doing would be doing
violence to language of the provision and wholes
provision — Which is not the same as reading down 4]
Held: ,
It is not possible to read into Section 66-A, at, 2000 each of the
subject-matters contained in Article 19(2) in its constitutional ity.
The reason is that when the legislature intended % di provided f {er'some of
kable by
pected by it.
But that is also not possible since what the State is neta th
to read down Section 66-A of th Hy Act, | 2000, e
wholesale substitution of the provisiog
(4) Vagueness
U. Constitution of India
law restricting freedoin of peeth and expre
for vagueness and net pi
freedom of speech figround of vagueness, f
when it lacks reas arid s and clear guidance for
citizens, authoriti¢ it e precise line between allowable
and forbidden spe
Hig ‘ace to guess théirHse with it leaves them in a boundless

sea of nga “eonferri is wide, unfettered powers on authorities to g
curtail freedom of speech xpréssion arbitrarily — Criminal Law —
A
ovid z manageable standards — Contrasted with more clearly defined
8 i in S. 66 and Ss. 66-B to 67-B of IT Act and in the Penal Code —
Expressions uscd in S. 66-A are open-ended, undefined and vague as a result

of which neither would accused be put on notice nor would authorities be
clear as to on which side of a clearly drawn line a particular communication
would fall — Expressions used in S. 66-A are so vague that there is:
manageable standard by which a person can be said to have committ#d dh,
balance between such right and reasonable restrictions tha

on such right — Constitution of India — Arts. 19(1)(a) and 1
They may be ingredients of certain offences under t

not offences in themselves 4
Held:
and which is vague must be struck down as

penal law is void for vagueness if it’‘fails
sufficient definiteness. Ordinary people*#h
sya
e enforcement of the law docs not tg place The Constitution Seen not permit a
Icgislature to sct a net large cnoug catch all possibleg d crs and Icave it to
the Court to step in and decide whi (Paras 55 to 68)
i, VWonters v. New York, 92 L
LOgR : 343 US 495 (1952);
Chicago v. Morales fed States v. Reese, 92 US
214 : 23 L Ed 563" 2d 222 : 408 US 104 (1972);
38°L Ed 2d 874 (1997); Federal
ne., 132 8 Ct 2307 : 183 L Ed
) 1 SCR 970 : AIR 1961 SC 293:
mz, (1970) 2 SCC 780; Harakchand
C 166; A.K. Roy v. Union of India,
ingh v. State of Punjab, (1994) 3 SCC
of the IT Act, 2000 are completely

11 computer related offences that are
spoken of 3 réa" is an ingredient and the expressions
“cc
are defined with some degree of specificity,
metion 66-A of the IT Act, 2000. The provisions
(Paras 72 to 74)

The mere causing of annoyance, inconvenience, danger, etc., or being
grossly offensive or having a menacing character are not offences under thg,
Penal Code, 1860 at all. They may be ingredients of certain offences under the
Penal Code, 1860 but are not offences in themselves
In the Penal Code, 1860 a number of the expressions that occur in Sactis .
66-A of the IT Act, 2000 occur in Section 268 IPC. Whereas, in Section 2684PC
the various expressions used are ingredients for the offence of a public ni s
these ingredients now become offences in themselves when it cq
Section 66-A of the IT Act, 2000. Further, under Section 268 IP¢
should be guilty of an act or omission which is illegal in nature: Db
not within its net. A further ingredient is that injury, danger or angoy s
to the public in general. Injury, danger or annoyance ar by
themselves howsoever made and to whomsoever made. expression
“annoyance” appears also in Sections 294 and 510 IPC. The ankigyange that is
spoken of in Section 294 IPC is clearly defined—that is, it has to used by
obscene utterances or acts. Equally, under Section 510 IP e annoyance that is c
caused to a person must only be by another person whoa ‘tate of intoxication
and who annoys such person only in a public place or i placg, for which it is a
trespass for him to enter. Such narrowly and closely de cogitours of offences
made out under the Penal Code are conspicuous by fi ‘e in Section 66-A
of the IT Act, 2000 which in stark contrast uses #o my pen-ended, undefined
2000 are defined. Even “criminal intimidatior jhed—and i efi nition

clause of the Information Technology Act, ord and a
expressions that are defined in the Penal Coc
,may nol cause

mpersistentiy” e
fess ge is “Per sent?

There is no
demarcating line conveyed by an it these°oee ni (Para 79)
Two English judgm 2223 and Chambers,
(2013) 1 WLR 18337 . ; ‘tained minds would find a f
person guilty or not guilt Vi 1 S“notion of what is “grossly
offensive” or “menaging*:, If fudici ra mfits can come to diametrically
opposite conclusion j
g
: of the IT Act, 3000 have absolutely
gok a person for an offence under Section
we (Paras 82 and 85)
ins, (2006) 1 WLR 2223 : (2006) 4 All ER 602 (HL);
Collins, (2006) 1 WLR 308 : (2005) 3 All ER 326,

Thus it is clear that Section 66-A of the IT Act, 2000 arbitrarily, excessively
and disproportionately invades the right of free speech and upsets the balancg
between such right and the reasonable restrictions that may be imposed on such
right. (Para §6),
Chintaman Rao v. State of M.P., 1950 SCR 759: AIR 1951 SC 118; State of Madras.y.
Row, 1952 SCR 597: ATR 1952 SC 196 : 1952 Cri LJ 966, applied
The submission that though expressions that are used in Section 66-
IT Act, 2000 may be incapable of any precise definition but for that reag
are not constitutionally vulncrable, is not acceptable.
Madan Singh v. State of Bihar, (2004) 4 SCC 622 : 2004 SCC (Cri) 13
Latifur Rehman Sheikh v. State of Maharashtra, (2010) 5 SCC 246; Sy
Leather & Liquor Ltd., (2003) 7 SCC 389 : 2003 SCC (Cri) 1642;
Appa Balu Ingale, 1995 Supp (4) SCC 469 : 1994 SCC (Cri) 1762, di:
(5) Chilling effect and Overbreadth
Freedom of speech and expression — Scope j Treedom to express

unpalatable views, cause annoyance, inconvenience ¢ srossly offend so long
t causal connection
Information Technology Act, 2000 — S. 6

speech and expression must be couched |
avoid chilling effect on such freedom eo E ean used iis. O6-A of the
IT Act, 2000 are very wide and terms eof taking
6! dnexactitude.
within its sweep even protected and innocent speech, aul
whether the offence is made out t]
— Thus S. 66-A of the IT Act, 200:
down on ground of overbregith ‘fxee'also Shértnd

and Wi — Constitution o| India, - —
communication. A person may

Hling disseminated over the internet
informati@ ‘of view pertaining to governmental,
literary, flay be unpalatable to certain sections
on of a view on any matter may cause
e $tossly offensive to some. Information that
ich causcs annoyance or imconvenicnee are
he emancipation of women or the abolition of the caste system oror


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 of
injurious to large sections of particular communities and would fall within3
net cast by Section 66-A of the IT Act, 2000. In point of fact, Section 66- Apt
IT Act, 2000 is cast so widely that virtually any opinion on any subject wou
covered by it, as any serious opinion dissenting with the mores of the dayaw
be caught within its net. Such is the reach of the section and is liable, th
to be used in such a way as to have a chilling effect on freedom of, (Spee :
constitutionality is upheld, the chilling effect on free speech woul b
161, followed
R. Rajagopal v. State of T.N., (1994) 6 SCC 632; S. Khushboo v. Kanni (2010) 5
SCC 600: (2010) 2 SCC (Cri) 1299, relied on
New York Times Co. v. Sullivan, 376 US 254; LL L Ed 2d G86 ({0@4), Derbyshire County ¢
Council v. Times Newspapers Ltd., 1993 AC 534: (1993) R EHO (1993) 1 All ER
1011 (HL); Attorney General v. Guardian Newspapers (NG 2), 1990) 1 AC
109: (1988) 3 WLR 776: (1988) 3 All ER 545 (IIL), cited,
Not only are the expressions used in Section 6 he IT Act, 2000
expressions of inexactilude but they are also 6¥er ‘br¢ “und would fall foul of
the repeated injunctions of the Supreme C ourt thi i 5
speech must be couched in the narrowest,
judgments of Constitution Benches of th
sections which are similar in nature. 4,
Supt., Central Prison v. Ram Manohar Lohiag41
Cri LJ 1002; Kameshwar Prasad v. State of Bi
SC 1166, applied
Cri LJ 103, relied on

Section 66-A of the IT Act, 2¢
as to have a chilling effect on fre have to be struck
(Para 94)
Provision must be judged f

on itsown merits an titutional — Proposition that
mere possibility 4 Ing abused by authorities
administering it.é ‘its validity — Ileld, cannot
hold good He vision is otherwisé fou id to be wholly unconstitutional
g
Xision must be judged on its own merits
may be administered or any assurance in
Strue that the fact that Section 66-A of the IT Act, 2000 is capable of A
xtised by the persons who administer it is not a ground to test its validity
SCC TruePrint™ source: Supreme Court Cases, © 2022 Eastern Book Company.
otherwise invalid as being unreasonable cannot be saved by its being

administered in a reasonable manner, which would apply here. If Section 66-A of
the IT Act, 2000 is otherwise invalid, it cannot be saved by an assurance from thé
present Government that it will be administered in a reasonable mai
Governments may come and Governments may go but Section 66-A of the ;f1
Act, 2000 will go on forever. An assurance from the present Governmeng, ever
carried out faithfully would not bind any successor Government. mt
therefore, be held that Section 66-A of the IT Act, 2000 must be judges 4
own metits without any reference to how well it may be administered.
Collector of Customs v. Nathella Sampathu Chetty, (1962) 3 SCR 78¢%
316: (1962) 1 Cri LJ 364, relied on
Belfast Corpn. v. O.D. Cars Ltd., 1960 AC 490: (1960) 2 WLR 148 4 196
(AL), cited a
(7) Severability
ZA. Information Technology, Internet, Comput
— Whether constitutionally valid portion several

severability, held, not applicable, ass 8. 66-A eee
constitutionally permissible action affecting an g] ct _— Poss of its

ned by. the’€ |
ruled out as it does not fall within any 6} tre bject- matters, a ning in
Art. me of the Constitution — - As it. gar ot Begsplit up into
Romesh Thappar v. State of Madras, |

1514, applied ©
id 1957 SOR 930: Af I SC 628, relied on

a, IST SER 682 : Am 5 8 : (1951) 52 Cri LI
considered once §
Proceduré Code,;
Information Technology (Procedure and Safeguards for Blocking for Access

of Information by Public) Rules, 2009 — Rr. 3 to 10, 14 and 16 — Valid .
The constitutional validity of Section 69-A of the Act and the Rules has been
assailed on the grounds that there is no pre-decisional hearing afforded by 4 eG
Rules particularly to the “originator” of information, which is defined ‘ndé}
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
generated, stored or transmitted to any other person. Further, pregegh
safeguards such as which are provided under Sections 95 and 96, €°rP©@ are‘),
available here. Also, the confidentiality provision was assailc ating that@it
affects the fundamental rights of the petitioners.
Rejecting the contention, the Supreme Court
Held:
‘itis necessary todo C

‘the Subjects set out in
Fit petition under

(Para 114)
ordét, only then

yeyho analy fails oe
95 and 96 CrPC are got aya

infirm. The Rules are ndi 10
f
7read down to mean that the

ge that: (1) a court order has
eee or disable access to certain 9
material;)or (2) et being f b fhe appropriate Government or its
agency ae unvienitted, acts relatatiie, to Art. 19(2) of the Constitution are
ZE. Information Technology, Internet, Computer and Cyber Laws —

Information Technology (Intermediary Guidelines) Rules, 2011 — R. 3(4) -+
aq Held, valid subject to being read down — Held, the knowledge spoken of i
the said sub-rule must only be through the medium of a court order o
being notified by the appropriate government or its agency that unkawfut
acts relatable to Art. 19(2) of the Constitution are going to be committed:
material — The court order and/or the notification by the appré

Government or its agency must strictly conform to the subjec amatters:
down in Art. 19(2) of the Constitution
Held:
Section 79 being an exemption provision, it is closely rel
which provide for offences including Section 69-A. Under"
blocking can take place only by a reasoned order after complying’
procedural safeguards including a hearing to the originator and
¢ There are only two ways in which a blocking order Gay Be ‘iassed—one by the
Designated Officer after complying with the 2009 Ru ands,the other by the
Designated Officer when he has to follow an order passe a competent court.
The intermediary applying its own mind to whether should or should
not be blocked is noticeably absent in Section 69-A }
d However, Section 79(3)(D) has to be rea¢

upon receiving actual knowledge that a co
the appropriate Government or its coef unlawful acts rel al

itted then, faits"t¢ ME aitiesls
e itermediary iss then Be

to as to which
of such requests are legitimate ark sh are not. In 9 untries 8 worldwide
this view has gained acceptance
the court order and/or the Reid
agency must strictly conformy to thig subjcct- -mattcl OV
the Constitution. Unlawful aéts bend what is. ‘in Article 19(2) of the
Constitution obviously én tion 79. With these two
f caveats, it is not necesséry te f ctiok,/9 (b). (Paras 122 and 124.3)
The Additional ,Soli@itorsGeneral inf ie rt it is a common practice
worldwide for int -s to have us nts containing what is stated
in Rule 3 Os How, ver, : > We read down in the same manner as
lbject to this, thé”Infotmation Technology (Intermediaries
Uh 8 are valid. : (Para 123)
g 4
4,960 (5 of 1961) — S. 118 — In pith and

Vit List II Entry 2 and adantonaly under
“Police — Kerala Police Act, 1960 (5 of 1961) — S. 118(d) — Held,

and violative of Art. 19(1)(a), being not saved by Art. 19(2) of the
jtution — Constitution of India, Arts. 19(1)(a) and 19(2)
Held:
The Kerala Police Act as a whole would necessarily fall under Entry 2 of
List II of Schedule VII to the Constitution. In addition, Section 118 would also
fall within Entry 1 of List II of Schedule VII to the Constitution in that as#{t
marginal note tells it deals with penalties for causing grave violation of pub
order or danger. ‘
A.S. Krishna v. State of Madras, 1957 SCR 399 : ATR 1957 SC 29

followed
fers from the same ©

type of vagueness and overbreadth, that Icd to the invalidity of Section 66-A of
the IT Act, 2000, and for the reasons given for striking dovn Sétion 66- A of the
IT Act, 2000, Section 118(d) also violates Article £
and not being a rcasonable restriction on the saéd ri
any of the subject-mattcrs contained in Article
declared to be unconstitutional.
Writ petitions disposed of
Advocates who Pent in this case :
Rarygeta Rohtagi,
Ninad Laud, Ms Jaya Khanna, Wiehernaz Mehta,
Ms Gursimran Dhillon, Karan M: Srivastava, Deepak
Rawat, Sarvjeet Singh, Sanjay Pari
Saxena, Ritwik Parikh, A.N. Sing!
Pranav Sachdeva, Ms Neha#iXath Shi
Sehrawat, Sujoy Chatlerje Eahetival, Krishi
K. Nair, Ms Shagun Bel
Philip, Kush Chaturvelii
Ms Tanya Shree, M f
B. Marar, Ms Lakshmi i
Kohli, Pujitha G ma, Ms Saumya, Ms Rashmi
: Rawat, D.S. Mahra, Abhishek
iswal, eee
Hfuhesh Babu, stun, S. J. " Aristotle, Prabu Rama
asf Mehrotra, Kunal A. Cheema, Anirudda
‘Ms Asha Gopalan Nair, Anil Sachthey, g
: Shyamohan, Ms Chaitali Y. ake
: iS Palwai Venkat Law Associates), "Guntur

i Shankar, G. Ananda Selvam, Mayilsamy K., R.V.
een Subhail Farrukh, Abhimanyu Chopra, Ms Priya Puri, Ranjay
Kr. Rubey, Gireesh Kumar, Sifgrm P., Vijay Kumar and Dr Nafis A. Siddiquie,
C TruePrint™ source: Supreme Court Cases, © 2022 Eastern Book Company.
Chronological list of cases cited on page(s)

1. (2014) 4 SCC 257 ; 2014) 2 SCC (Cri) 291, Aveek Sarkar v. State of W.B. 147g,
149d-e, 149e-; "
a 2. (2013) 1 WLR 1833, Chambers v. Director of Public Prosecutions 165a, 13 Te
3. 1328 Ct 2307 : 183 L Ed 2d 234 (2012), Federal Communications Commission ay
v. Fox Television Stations Inc. . *
4. (2010) 5 SCC 600 : (2010) 2 SCC (Cri) 1299, S. Khushboo v. Kanniammal
5. (2010) 5 SCC 246, Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra
6. (2008) 1 WLR 276 : (2007) 2 AILER 1012, Connolly v. Director of Public
Prosecutions
b 7. 553 US 285 : 170 L Ed 2d 650 (2008), United States v. Williams
8. (2006) 8 SCC 433, Directorate General of Doordarshan v. Anand Patw.
9. (2006) 1 WLR 2223 : (2006) 4 All ER 602 (HL), Director of Public
Prosecutions v. Collins 148d;
10. (2006) 1 WLR 308 : (2005) 3 ATLER 326, Director of Public Prosecutions
Collins
(2004) 4 SCC 622: 2004 SCC (Cri) 1360, Madan Singh v. State of Bihar 163a-e
c 12. (003) 7 SCC 389 : 2003 SCC (Cri) 1642, State of M.P. v. Kéliad ar &
Liquor Ltd. ; 1639-h
13. 155 L Ed 2d 535 : 538 US 343 (2003), Virginia v. Black 145a
14. 527 US 41: 144L Ed 2d 67 (1999), Chicage v. Morales , 153a
15. 521 US 844: 138 L Ed 2d 874 (1997), Reno v. Am L i arte, Union 154b-c, 168d
16. (1996) 1 SCC 130, Ramesh Yeshwant Prabhoo v. PF . 146c
17. 929T' Supp 824 (3d Cir 1996), American Civil Liber *
155a-b
d 18. (1995) 2 SCC 161, Ministry of Information & é %
Cricket Assn. of Bengal 3, 140g¢ 168d
19. 1995 Supp (4) SCC 469: 1994 SCC (Cri) 47062, :
Ingale : 164b
20. (1994) 6 SCC 632, R. Rajagopal v. State of T. 167b-¢
21. (1994) 3 SCC 569 : 1994 SCC (Cri) 899 l6la
22. 1993 AC 534 : (1993) 2 WLR 449: (1
e iv. Ti 167¢
23.
L67e
24. (1989) 2 SCC 574, S. Rangarggil : 145a
25. 485 US 46:99L Ed 2d. 41 (1888); ‘Hustler Magazine [ 149¢
26. (1985) 1 SCC 641: 1985 f (TaxJ 21, Indian Exp#és:
i 133c-d
) 152, A.K. Ro vatinion? 159f-g
it é leman & Co. Vv. 1288
155e-f
153d, 153e, 156b
157e, 172a-b
: {970 scc (Cri) 67, Sn 142d
(1969} 2 sce 86, Hixrakchand Ratane 158e
(1969) 1sce 8
. Mohd. Fa 137¢
» Municipal 157 f-g
. Pushkar Mukkp, " 143d-e
o L Edas 430 : 395 US 444 (1989), Brandenburg v. Ohio 1454, 148e-f
2 L. Ed 2d 664: 394 US 705 (1969), Warts v. United States 1454
(19g6) 1 SCR 709: AIR 1966 SC FAO : 1966 Cri LJ 608, Ram Manohar Leohia v.
State of Bihar 1428, 142d, 142d-e, 143/
) L SCR 65: AIR 1965 SC 881 : (1965) 2 Cri LJ 8, Ranjit D. Udeshi v.
State of Maharashtra 147d-e

41. 376 US 254: 11 L Ed 2d 686 (1964), New York Times Co. v. Sullivan 167b-c, 167g
42, (1962) 3 SCR 842 : AIR 1962 SC 305, Sakal Papers (P) Lid. v. Union of India 128f-g. 134g.
43. (1962) 3 SCR 786 : AIR 1962 SC 316 : (1962) 1 Cri LJ 364, Collector of ,
Customs v. Nathella Sampathu Chetty
44, 1962 Supp (3) SCR 369: AIR 1962 SC 1166, Kameshwar Prasad v. State of ;
Bihar 132g-h, 169a-b, 169b<c,
45. 1962 Supp 2) SCR 769 : AIR 1962 SC 955 : (1962) 2 Cri LJ 103, Kedar Nath ,
Singh v. State of Bihar
46. (1961) 1 SCR 970: AIR 1961 SC 293 : (1961) 1 Cri LJ 442, State of M.P. v
Baldev Prasad
47. (1960) 2 SCR 821 : AIR 1960 SC 633 : 1960 Cri LJ 1002, Supt, Central
v. Ram Manohar Lohia 135
48. 1960 AC 490 : (1960) 2 WLR 148 : (1960) 1 AILER 65 (HL), Belfast C
O.D. Cars Lid.
fl UL P. fe 146a-b
51. 1957 SCR 399: AIR 1957 SC 297 : 1957 Cri LJ 409, A.S. Ki
Madras 176a
52. 1953 SCR 1069: AIR 1953 SC 252, State of Bombay v UnitgdeMore cS. 172e-f
53. 1952 SCR 654 : AIR 1952 SC 329 : 1952 Cri LJ 1373, S
Shailabala Devi 145d
54. 1952 SCR 597: AIR 1952 SC 196: 1952 Cri Ly 966 sh
Row 1366, 166e
55. 96L Ed 1098: 343 US 495 (1952), Burstyn v.
56. 1951 SCR 682: AIR 1951 SC 318: (1951) 92
FIN. Balsara oes
58. 1950 SCR 605 : AIR 1950 SC 129 : (1950) 51 C1

State of Dethi 141 g-h
59, 1950 SCR 594 : AIR 1950 SC 124 : (
State of Madras c, 172e, 172f
60. 1950 SCR 519 : AIR 1950 SC 211
Dethi stn . ia 136e, 137f
61. 94L Ed 925 : 339 US 382 (19805 tbnchiedy ionStAskn. 134d-e
62. 93L Ed 1131: 337 USsl (1949) iniello v. Chicagés, 144¢-h, 148f
63. 92L Ed 840: 333 US 50; [ § eee 15la
64, 92 L Ed 562: 68 S C8307 150g-h
65. 132a. 1494
66.
132d
67. 155f
68. 152e
69. 129d, 148g-h
70.
151d-e, 155d-e
152¢
129b-c, 144f-g
14e
Buck’s Stove &35 LD 144e-f

214: 23 L Ed 563 (1876), United States v. Reese 153a-b
8) LR 3 QB 360, R. v. Hicklin 147e, 147g-h
SITREYA SINGIIAL v. UNION OF INDIA
SUMMARY OF ARGUMENTS
T. Mr Soli J. Sorabjee, Senior Advocate, for the petitioner in
WP (Crl.) No. 167/20 12 ooo eee ee cece cece esas eee eeeeeeeeeseeeeeeeeaes
II. Mr Shyam Divan, Senior Advocate, for the petitioner in
Writ Petition (C) No. 217 of 2013 oo... eecccecceeeeeeeceeeeeesenaeaeaes
UW. Mr Sajan Poovayya, Senior Advocate, for the petitioner in
Writ Petition (Civil) No. 23 of 2013 .o.ccccccccece
sss eecesenaneneeeen
IV. Mr Prashant Bhushan and Mr Pranav Sachdeva, Advocates ft the
petitioner in Writ Petition (Civil) No. 21 of 2013
Vv. Mr Sanjay Parikh, Advocate, for the petitioner in WP (Crf

No. 199/2013 oie eases seeeese cece neces ae aeaaeaeee
VI. Mr Gopal Sankaranarayanan and Mr Renjith Marar, Advocatégy,
for the petitioners in WP (Crl.) No. 196/2014 .
VII. Mr Tushar Mehta, Additional Solicitor Genera
Union of India ......ccccceeccceeeeeeseeeeaeseneeeesaeae p. 71
VITT. Mr P.S. Narasimha, Senior Advocate, for the § ‘
in Writ Petition (Criminal) No. 196 of 2g 4. pet p- 121
I. Mr Soli J. Sorabjee, Senior

A ‘on nthe petitio#ier, ’
Shreya Singhal in WP a o. 167/201
importance under a democratic ©

composition of legislatures and:
Sakal Papers (P) Lid. v. Unigts
(b) “Freedom of the
ic organizations....” [See Romesh

R594 at 602.]
authorise the imposition of restrictions on a
; wide enough to cover restrictions both within
such right, it is not possible to“uphold it even so far as it may be

ithin the constitutional limits, as it is not severable. So long as the

Summary of Arguments (contd. }
I. Mr Soli J. Sorabjee, Senior Advocate, for the petitioner (conid.)
possibility of its being applied for purposes not sanctioned by

Constitution cannot be ruled out, it must be held to be whol se
unconstitutional and void. ... an enactment, which is capable of “being
applied to cases where no such danger would arise, cannot be held. t¢
constitutional and valid to any extent.’ [see Romesh Thappar v. Sh
Madras, 1950 SCR 594 at 603.] of
See
se pomnen
Coleman & Co. v. Union of India, (1972) 2 SCC 788 : (1973) resok 757 at
829.]
3. “There is nothing in clause (2) of Article 19 whi SsEmits the State, to
abridge this right on the ground of conferring bene upan the public in
general or upon a section of the public. It is not OPS. t
Union of India, (1962) 3 SCR 842 at 8624

4. Restrictions which can be impose ; clin be
only on the heads specified in Artié ¢ fictions
cannot be imposed on the ground
contemplated by Article 19(6). [See Sukal Papers (P) Lt
(1962) 3 SCR 842 at 868.] :
5. Section 66-A penalises
causes annoyance, inconvenienc o,f
inumidation, enmity, hatred gill
v. Union oF li, > para 21; K.A. Abbas v. Union of

India, (1970) 2% :45. 46; Burstyn v. Wilson, 96 L Ed
»f India v. Cricket Assn. of Bengal,
‘orship which is not autherised by. the Constitution. [See Hector v.

. General of Antigua & Barbuda, (1990) 2 All ER 103.]
here are numerous instances about the arbitrary and frequent
ocation of the said section which highlight the legal infirmity arising from

a uncertainty and vagueness which is inherent in the said section.
expression and is thus violative of Article 19(1\(a). [See R. Rajag

State of T.N., (1994) 6 SCC 632 at 647; 8S. Khushboo v. Kanniammal,
5 SCC 600 at 620.]
6 10. Freedom of speech has to be viewed also as a right
country like ours. [See Ministry of [&B, Govt. of India v.

Bengal, (1995) 2 SCC 161 at 229.]
© be attracted even for actions over the internet. In P

153-A, 153-B, 292, 293, 295-A, 505, 505(2) IPC, it
cover the situations which are being used by, on of India as
i the statute. The
q they are
: written on a ‘public medium oO
actions pevone their purview, ospeggaly
signdards for
e gle 19(2). The
standards for every medium ca
violative of Article 14. Ther
wed on Articles 10(1)

f Rights 1950 (ECHR). The
ider than those prescribed
‘ness of the restrictions arises

is.@Specified in Article 19(2). If
Br scribed heads they are per se
g s of restrictions cannot cure the
‘a. provision has to be deter on construing il reasonably. If il passes

the possibility of powers conferred being

out in Part ITI of the Constitution, does not pass the test, it cannot be
pronounced valid merely because it is being administered in the mani
which might not conflict with the constitutional requirements.” [See Ké@hii
Babulal & Bros. v. H.C. Patel, (1968) 1 SCR 735 at 749; Colléeto
Customs v. Nathella Sampathu Chetty, AIR 1962 SC 316 at 331, 3
bad law is not defensible on the ground that it will be jud
administered.’ [See Knuller Lid. v. DPP, (1972) 2 All ER 898 9060). ]
16. The crux of the matter is: can the exercise of \
fundamental right of freedom of expression be subject to#
upon the subjective satisfaction of a non-judicial authority
respect of vague and varying notions about “grossly offensive’
character” and causes “annoyance”, inconvenience, insult and injt
17. The impugned heads of restrictions are inexgricably,li c
provisions of the said section and are not severable. ce, ‘the entire Section
66-A is unconstitutional. [See R.M.D. Chamarbaugy aa vs-Union of India,
1957 SCR 930 at 950-51.]
if. Mr Shyam Divan, Senior Advoca ey.

Mr Prasanth Sugathan, Mr Biju.K. Nair, ™4 d
Mr Arjun J., Advocates for the pétitj
(India) Pvt. Ltd. in Writ Retin in ¢E
A. Introduction
1. These written submissions filed on
concise and pointed. Rather than, s e
petitioners have chosen to projéct fhe thrust of their
supplement the oral submission A
B. Relevant facts and relief.
mpiny which operates
bsite. The website
provides a platform opinion on goods and f
services, facilitating
respect to productge,.¢
esand is the subject of academic

srtance and value of the service it 9
¢ first petitioner’ s incorporation, its entire¢ sharcholding was held by h

d petitioner, it is now held equally amongst the six brothers of the
SITREYA SINGITAL v. UNION OF INDIA 25

Summary of Arguments
II. Mr Shyam Divan, Senior Advocate, for the petitioner (contd.)
4. The manner Mouthshut.com works is best understood with reference

@ to the site’s screenshots. Some of the essential features of this website
(a) Any reader may visit the website and read its content, (b) To poest,4,
comment, the user is required to first register by providing an email addrgss, *
this website, users share their experiences with respect to gow Z

¢ in diverse categories such as appliances, aute pon builders and
developers, health and fitness industry, movies, musi
e taking down
euld erode the
choosing a product or service

experiences of previous use
inimunity from lability

By Act, 2000 (the IT Act).
Brovided by the legislature

fin 79 is due to the Information
, 2011 (the impugned Rules).
79 and creale an unworkable

Il. Mr Shyam Divan, Senior Advocate, for the petitioner (contd. )
IA No. 4 of 2014. The first petitioner is an intermediary since it receives,

stores and transmits electronic records on behalf of persons posting revie
and also because it is a web-hosting service provider. The distinction betive:
hosting and posting, internet hosting service providers and web
service providers is drawn out at Annexure 3.
10. Online intermediaries provide significant economic benefits
is why across the world ‘major economies provide a sate har
accessible and understandable to_uscrs. _ Intermediaries cn

activity, reduce costs and enable market entry for small
enterprises, thereby inducing competition, which eventually le
consumer prices and more economic activity. The £ le @ffintermediaries and c
‘of 2014.
ormation that is
exchanged on their platforms, Legal regimes at world prescribe
exemptions from liability for intermediat ; safe harbour
provisions are regarded as a for
intermediarics to operate.
following the arrest in 2004 of Avnigh 3 aj,

auction portal, Parliament with effect “fiemi27-10-2009 sub tu /Chapter
XII of the IT Act comprising Section 79. T ark tection to
intermediaries was introduced to, protect intermediari Ht burdensome
liability that would crush innoya an, throttle _Indiatk oO Betiveness and e
: rmcdiary from liability

arising from “thi stevediary is exempt from all
(party information, data or
“by him. The purpose of this
wide exer wermediaries from harassment or
liability gfising 1 as an intermediary
15. Fhe opert 1g ‘words are a widely worded non obstante 9
ined in any law for the time being in
sriditig effect to the Act in relation to
pediaries as a class ‘from civil as well as


17. Section 79(2)(c) provides thal in order to ensure exemption from

a liability under Section 79(1) the intermediary “observes due diligence whijle,
discharging his duties under this Act and also observes such other guid@ling.
as the Central Government may prescribe in this behalf’. The mandate, of ghi
provision empowers the Central Government to frame statutory gui
for a specific objective, that is, lo ensure observance by an inlerme
preserve and retain information as set out in Section 67-C

extend all facilities and technical assistance with respect to 73
monitoring or decryption of any information as envisaged in See
the duty to obey government directions to block public accéss to any
and extend all facililtics to a government agency lo cnt Hine access or lo

secure or provide online access to computer resources germs of Section
is lost “on being notified by the appropri

any information, data or commur ation link residing .
g ‘tised to commit
the unlawful act” "and the in jously remove or
disable access.
E. The IT (Intermediaries de ) Rules, i
ned “Rules
" enumegoe
an intermediary mys
f requirements constitu
(a) Rule
es and regulations, terms and
g pdatéxershare “information” cnumerated in
he intermediary from knowingly hosting or

publishing information o: initiating transmission in respect of the
infg mation specified | in su clauses (o> © of Rule 30).

person” that such information contravenes sub-clauses (a)-(é) of :

Rule 3(2).
(e) Rule 3(4) requires the intermediary to preserve such contravéni
information for 90 days for the purpose of investigation. i
(f) Rule 3(9) requires the intermediary to inform its users thi
assistance lo government agencies.

(i) Rule 3(8) requires the intermediary t
measures to secure its computer resource.
GV) Rule 3(9) requires the intermeglia
incidents and share information with thg,
Response Team. d
e
the complaint.
21. The petitioners’ main rot g
insawriting oF
affected person
> before disabling

the information.
F. Oe the i.imp
Ccoidis fg to the petitioners render the
at out, in the section. However, before
‘petitioner provides a platform and

éeehange views through the platform.
the content which is supplied by users. The
ation in terms of human resources | and the

24. Being an intermediary, the first pelilioner is anxious to retain the

exemption from liability conferred under Section 79(1) of the IT Act. The
petitioners cannot afford to be dragged across the country in resporse ,ta,
summons, court cases, etc. that relate to content uploaded by thir Parties. :
The petitioners have no objection to taking down the material in resp
orders passed by a duly authorised government agency or a court. Inds
petitioners submit that on a correct interpretation of the releva G
facilitates implementation of duly authorised orders.

25. The problem is that the impugned Rules, specific
require the intermediary to (7) respond to any “affected pers
written complaint; OO contact and work with the u
Cc i i i i “Firs itioner’s website;
ce informauion
complained. about contravenes Rule 302): e down such
information. At a practical level, the first petitioner
adjudicatory machinery or in default take ;
é onerous and unreasonable.

26. Adjudicating on wheth fe jon of a particular
provision of law, is the quintes ey to tbe discharged by
the State or its organs. This" Hon
such as intermediaries: Rule 3C4), of the im
pose of the guidelines is to ensure

igence while discharging his duties
3(2) have nothing to*do with observance of the statutory duties

the abovementioned sections. Rule 3(2) travels beyond the narrow
S C TruePrint™ source: Supreme Court Cases, © 2022 Eastern Book Company.

(b) Section 79(3)(b) contemplates a situation where an intermediary

“on being notified” by the appropriate Government or its agency mitsé
“take down” the offending material. Rule 3(4) directly conflicts with
scheme in the section because (i) it requires the intermediary to -t
to any “affected person not just the appropriate government
roles and requirements is onvisaged i in Section 79 and,

directly conflict with the parent statute in this regard.
(c) The purpose of the non obstante clause in Section 7
give overriding effect and grant exemption from *
intermediaries. Rule 3(6) of the impugned Rulege.by requiring the
intermediary to “strictly follow the provisions ve ry ‘upher laws for the
time being in force’ brings about a direct confli ith he non obstante
clause. Requiring compliance with all other lay ée as a condition
of “due diligence’, reintroduces by a back
legislature deemed appropriate to overridé;.i
lability.
(d@) The impugned Rules introdu
Section 79 is to confer immuni
censorship by private edict. At a"
police departments. The g

intermediary with a Hobso
under the safe * harbour P
ss to content on a
Om a court order. The
nd Section 69-A. The
red by any pepe ed private individual
Wuteand
eech ‘and expression that is “grossly

os *, “invasive of another’s privacy”,
‘tionable”’, “disparaging”, “otherwise
over’, “harm minor in any way”, “violates
in force”, etc. the impugned Rules travel
2) The expressions in the previous sub-paragraph are vague. When

vagueness is coupled with a requirement on the part of an

a lose exemption from liability, the statutory scheme is lable to be struck

down as unconstitutional under Article 14 on the grounds of vague
and arbitrariness. Be
immunity, is not only required to take down material within 36 hout

b is also prevented from putting back information. This is
Sections 52(1)(b) and (c) of the Copyright Act, 1957
d or respond is protected under Article#

(1992) 3 SCC 637, paras 8, 9 and
business is intricately connectetd:,wi
importer of books, any illegal restrtéti
efully interpreted as
f n Indian enterprise to
riendly jurisdiction.
G. Miscellaneous #t t
28. In the coin rse%
fitution and cannot in any way be justified

lar to the terms of service of private
¢ of _intermediaries are, at best, terms of a

30. In reply to Para 8, the impugned Rules are unique to India and cannot
be said to be similar to provisions followed all over the world. E.g. in USAg
under Section 230 of the Communications Decency Act, 1996, no provitter
user of interactive computer service shall be treated as a publisher or
of any information provided by another information content provide
gives an inlermediary complete immunity from liability arising oul! u
generated content. The Safe harbour protection given to inageinccts in
heard. Additional information about the practice in these ju

provided at Annexure 5S.
31. Contrary to the respondent’s account ‘egislative history ©
on 330 was not the
communications and to keep Government.

minimum. A true copy of the judgment’ OL,
Zeran v. AOL, [139 F 3d 327 (1997)] is pro
32. In reply to Para 46,
censorship measures should nevét' ts tities, and that @
intermediaries should not be i take acuon that
infringes indiv‘iduals’ human
independent of any 'B

Report of the Special

35. The respondent’s argument that Section 69-A has limited application
and an individual user does not have a redressal mechanism under Section,
India, in public interest, challenging the constitutionali

¢ the Information Technology Act, 2000 (the “IT Ay
Information Technology (Amendment) Act,
2. Section 66-A is a nenal provis i

grounds of being “grossly offensi
inconvenience, danger, obstruction, insult’
sets of standalone offences undgr clauses. (a), (b)3
e nes in Section 66- A 2), Seétions 66-A(a)
yi ies, ‘independent of the
taposition of Section
iS 66-B, 66-C, 66-D,
a; tearly demonstrates ils
ge of vague termpinoldgy in i Section 66-A, such
f as “causing inconven etc.,; further compounds
the problem. It admits’ nd persons applying the
i incertainty. The absence of
6-¥ (a) and (c), would lead to
«electronic platform, which are
g
expressioft
and. _depent jective<gBinion of the complainant and the statutory
( tion 66-A, is an insidious form of censorship

. not authorised by the Constitution and therefore Section 66-A must
down by this Hon’ ble Court as unconstitutional.

III. Mr Sajan Poovayya, Senior Advocate, for the petitioner (contd.)
4. Section 66-A is so wide in its import that even private communications

through cellular telephony are covered. Defining the offence with referei
to the medium employed for communication leads to arbitrariness?
group, as well as, remarks on a social network that could be

group of selected recipients.
5. The terms deployed in Section 66-A are undefined and no‘
principles have been laid down by the statute ta, gist
exercise of such power, either in terms of law ent emeit or in terms of
; down no guidelines
for exercise of power under that provision, it is vista rticle 14 of the
Constituuion because it would permit arbitéary gan ricious exercise of
such power which is the very antithesis @f before ae | Ref
Naraindas Indurkhya v. State of M.P., (1 d
6. Due to the vague, undefined terms/pht 4
it remains uncertain as to what ackis &ri
Criminal law should with certainty indix
citizen. When such vague ( terms are use
Para 16]
7. The unconstitugonalt
mere Possibility of b
ich 1 ’ without any reasonable f
enactment, makes the
buttressed by the multiple
ical discussion, dissent and
#cumstances, not merely the
is liable to be struck down as
Secttén 66-A, such as, “grossly offensive’,

noyance”’, “inconvenience’’, “danger”,
& etc., does not adtgit of any precise definition and no guidance
bstruction”,
is provided for "interpreting “these terms; this renders Section 66-A
‘unconstitutional for vagueness. The Union has, by its actions, admitted that fA

Ill. Mr Sajan Poovayya, Senior Advocate, for the petitioner (contd.)
dated 9-1-2013 by the Union of India laying down certain guidelines for
to it any element of invalidity, The converse must also follow, that a

which is otherwise invalid as being unreasonable cannot be saveda fi
b administered in a reasonable manner. Therefore,
ict with the

pdegily pass
c constitutional mandates, does not save the uncon aie of the law.
“ee 3 SCR 786]
[Ref.: KA. Abbas v. Union of India, (1970) ROY. For example, when
the definition of “goonda” in the Central Pr anid Berar Gogaradas Act,
d felt within th ae
interpreted based on community slandetis or indie

e Therefore, Section 66-A is liable ‘o be declared uné
Hon’ble Court.
B. Section 66-A of the IT Acta Canstitution
10. Any restriction on ff oe . Bs guaranteed under
Article 19(1)(a) of thegCongtituti n, can be IMpos y under the specified
buckets enumerated, n Arlt e » 19(2) of the @ n viz. (2) sovereignty
friendly relations with
forcign States, (iv) publi order, (v) degelitcy fhorality, (vi) contempt of
Court, (vit) defamiit n nd (viii) inci ment to an offence. In addition to

However, the restrictions imposed by Section 66-A travel far beyond these
permissible limits. Therefore, Section 66-A is liable to be struck down. f
11. Section 66-A has a chilling effect on free speech. The terms uséd
the section, for example, “grossly offensive’, “menacing chékactér’
“annoyance”, “inconvenience”, “danger”, “obstruction”, etc., are va
fail to provide any reasonable standard of application or adjud
Additionally, these undefined expressions, do not comport &
permissible grounds mentioned in Article 19(2), under whic
on the basis of medium adopted for ‘commen An identical

communication in a physical form continues to not ‘ence, even if it
causes “annoyance” or “inconvenience”. Such a_pr lends itself to
abuse by authorities: to control certain content or ge
A provision criminalises
speech that cannot be regarded as actionat e* a any existittg penal
provision, including Section 499 of th
defamation. : a
h a requiring the “er
senior police official prior to eistering 2 Panco under $ Lot
Act. “Secondly, the threat of cri

to a certain extent, nevertheless
speech on the internet, till
contours of actionablespeée
on the exercise of free
tandard prescribed will be
e _accorded to free speech
ectronic platform, is also a very real

laying down an uncertain exemption

is in violation of Article 21 of the Constitution of India. Therefore, Section

66-A has a chilling effect on freedom of speech and expression and is thing
violative of Article 19(1)(a). [Ref: R. Rajagopal v. State of T.N., (1994)
SCC 632 at p. 647; S. Khushboo v. Kanniammal, (2010) 5 SCC&60
p. 620]
15. Article eR) protects nol only the right of primary express
I&B, Govt. of India v. Cricket Assn.1. of Bengal, (1995) 2 SCC ee

Romesh Thappar v. State of Madras, AIR 1950 sc 124 aby araa4]
tatilards. [Ref:: Reno v.

at pp. 859, 862, 872,
874, 877 and 878] ;
18. The Child f i ‘OP. Was enacted by the United
‘a fed certain provisions of the

constilulional, because il was not
ing governmental interest, without
However, the Congress’
eliminary injunction as well as upon trial.

{ Liberties Union, 535 US 564 and Ashe roft
tutional for not being narrowly ‘tailored to serve the compelling

“of the Congress and that it facially violates the Tirst and Tifth

III. Mr Sajan Poovayya, Senior Advocate, for the petitioner (contd. )
Amendment, rights of the plaintiff. Subsequently, the Court of Appeal «

affirmed the District Court’s order, holding that COPA does not withstand
strict scrutiny, and pass the tests of vagueness or overbreadth analysi# aati
thus: is unconstitutional. [Ref:: American Civil Liberties Union v. M te iB.
appeal from the Court of Appeal’s order.

C. No compelling State interest in enacting Section 66-A ,
19. The argument of the State that Section 66-A has |
Harious 0 offences
‘ode, is annexed
hereto:
Nature of offence
d
Mobile phone lost/stolen
Receiving stolen : Section 66-B —“

computer/mobile phone | years’ imprisonment”r Rs
/data (data or computer or | 1 lakh fing,or both
mobile phone owned by e
you is found in the hands
of someone else)
Data owned by you or igh 379 — up to 3
your company in any foun ¥’imprisonment or fine
is stolen
A password is stolen — up to 3 f
used by someone els years’ imprisonment or fine
Section 420 — up to 7
/ years’ imprisonment and
years’ impéis fine
find up to Rs 1 lak
g
Section 66-C — up to 3 A
years’ imprisonment and
fine up to Rs | lakh

An electronic signature or Section 66-C — up to 3

digital signature is years’ imprisonment and
misused fine up to Rs | lakh
A phishing email is sent Section 66-D — up to 3
out in your name, asking years’ imprisonment and years’ imprisonment’
for login credentials fine up to Rs 1 lakh or both ‘
Capturing, publishing or Section 66-E — up to 3
: transmitting the image of years’ imprisonment or
the private area without fine not exceeding Rs 2
any person’s consent or © lakhs or both
_ knowledge fine Rs § for ésécond
se uty .
and subsequefit, conviction
Siecal
Tampering with computer Section 65 — up to 3
source documents years’ imprisonment or
fine up to Rs 2 lakhs or
both
years’ imprisonment, Or,
fine up to Rs 5 laktis or
both
d Data modification Section 66 —
years’ imprisont
fine up to Rs 5
both *
Sending offensive Section 66-A —
messages through years’ imprisonmen
communication service, fine
etc. — up to 2
prisonment or fine
506 — up to 2
‘years’ imprisonment or fine
or both if threat be to cause
death or grievous hurt, etc.
— up to 7 years’
imprisonment or fine or
both
years’ imprisonment along
with punishment under
Section 506
year’s imprisonment or fine
or both
year’s imprisonment or fine
or both of IPC as
applicable

Publishing or transmitting . Section 67 — first , Section 292 — up to 2
obscene material in | conviclion up to 3 years’ | years’ imprisonment
electronic form imprisonment and fine Rs ;| fine Rs. 2
5 lakhs. Second or | years’ imprisonmer
subsequent conviction — | 5000 for
up lo 5 years’ | subsequent convictig
imprisonment and fine up :
to Rs 10 lakhs
Punishment for publishing | Section 67-B — __ first
or transmitting of material ; conviction — up to 5: 3
depicting children in: years’ imprisonment and
: sexually explicit act, etc. fine up to Rs 10 lakh.
in electronic form Second or subsequent
- conviction — up to 7)
years’ imprisonment and c
fine up to Rs 10 lakh
Misusing, a wifi | Section 66 — up to 3
connection if done against | years’ imprisonment
the State fine up to Rs 5 lakt
both ,
Section 66-F d
imprisonment
Planting a computer virus Section 66 a
if donc against the State
both
Section ,66-I
imprisgdiment e
Conducting a denial of i é
service attack against a:
government computer
Stealing data from f

government computer, tha rs’ imprison
has igni fine up to Rs & la
national
perspective...
7 g
a access to | imprisénment up to 7
q stored on = years and fine A
to the
agit authorities
SITREYA SINGITAL v. UNION OF INDIA

a Failure to block websites, | Section 69-A — |

when ordered imprisonment up to 7
years and fine
Sending threatening | Section 66-A — up to 3 | Section 504 — u
messages by email years imprisonment and | years’ imprisonmer
fine or both
Word, gesture or act Section iF
b intended to insult the : year’s impriséime at
modesty of a woman or both
applicablé:
Sending defamatory | Section 66-A — up to 3 | Section 589
messages by cmail years’ imprisonment and |: years’ imprii
fine or both
Bogus websites, cyber | Section 66-D — up to 3 : Section 419
c frauds years’ imprisonment and: ‘typrisonment or fine
fine up to Rs | lakh #20 — up to 7
irfprisonment and
» Email spoofing Section 66-C — upzto 3 2

| years’ imprisonmen and’ ears’ imprisonment
or fine
: finc up to Rs 1 lakh * a
d Ection 468 up toSie
7
years’ ent i#and
fine ee
Making a false document Section 4@
years’ imprisonment’
fine up to Rs | lakh"
Forgery for purpose of Section 6@-D — up to 3 Oe — up to 7
é cheating , faprisonment and impgisonment and
o RS & lakh
Forgery for purpose of|
_ harming reputation
Email abuse ion 500 — up to 2

ars’ imprisonment or fine
both :
Punishment for crit Section 506 — up to 2
intimidation years’ imprisonment or fine
or both, if threat be to cause
death or grievous hurt, etc.
— up to 7 years’
imprisonment or fine or
both
years’ imprisonment along
with punishment under
: Section 506 TPC /
Sectid# 66 — up to 3: Sections 63, 63-B_ of
years’ imprisonment or | Copyright Act, 1957
fine up to Rs 5 lakhs or |
» both :

III. Mr Sajan Poovayya, Senior Advocate, for the petitioner (contd. )
20. A reading of Section 43 read with Section 66 of the IT Aci

contemplates all such circumstances/offences which the State purports:
guard against by enacting Section 66-A Le. destruction of informatioii/d
on a computer resource, virus contamination, disruption of c@m
network, data theft, ctc., if done fraudulently, dishonestly, constit
offence, and makes it punishable with imprisonment up to three years:
fine which may extend to five lakh rupees or with both. Bherelore, th b
enactment of a patently vague provision such as Section &
unjustified and the same deserves to be struck down by this
unconstitutional.
D. The Information Technology (Intermediaries Guideline
are ultra vires and unconstitutional
21. Rules 3(2) read with 3(3),. ne and 7):
harmful” “blasphemous”, “ethnically objection Tossly offensive’,

“menacing in nature’, etc., which are subjectiye
is provided for their Interpretation either in (He
that is “invasive of ‘another’

“disparaging”, “harms minors 1
and steps are required to be ta
soon as the intermediary is
9(1)(a) in creating
framework and is also
beyond the scope of y i i sf vé in administering such
regulation.
22. Rule 3 it hosting any of the contents
referred to. t clear that the intermediary is
eeven if it merely “hosts” such content.

ule 3(3) provides for an objective test

information received within 36 hours. It is submitted that the turnaround

period of thirty-six (36) hours for removal of content is comple
impractical and infeasible for intermediaries to implement as they process,
enormous quanta of data, especially taking into account that an inéred#bly’
large number of takedown notices would be issued to large and
intermediaries. A theory of infringement that would hold the entire
pb liable for activities that cannot reason be deterred is not‘f
v. Netcom, 907 F Supp 1361]

24. Rule 3(4) permits an unguided application of
intermediary as to whether Rule 3(2) has in fact been violated,
the intermediary, and violates the user’s valuable nattit

therefore in breach of Article 14 of the Constitution ,
media “like television, newspapers and magaz

dubbed offensive content aoa to be cogsi ;
n1 several addi tiofial fatitors,
bifrary,
ee
19(1)(a).
26. The Rules essentially ¢
intermediary's computgr s
private entity, whichis
f as il amounts lo an abi
27. The Rules
igOf abdication of power to the

tary is forced under the Rules, to
, it is most respectfully prayed that Section

BO), 3(3), 3(4) and 3(7) of the Information
2011 be declared as

Summary of Arguments (contd.)
IV. Mr Prashant Bhushan and Mr Pranav Sachdeva,
Advocates for the petitioner, Common Cause in
Writ Petition (Civil) No. 21 of 2013
constitutional validity of Scction 66-A of the Information Technol

2000. The petitioner seeks Jdiberty to address the other issues raised. in f
such instances on record in “the instant proceedings.

however, are limited to the issue of unconstitutionality of the
reading of ils bare provisions. :
Restrictions under Section 66-A are vague, general, an elastic
SCC 271: AIR 1982 SC 710. While determining;

the law were vague, general and elastic, this, Ho : “The
impossibility of framing a definition with ‘t
either justify the
t use of vague ed sO i ne any
jus ones ait least, di safe
definiteness is regarded as a fundamentt wWitand must

now be regarded as a pervading theme of ot# C i tot sinc ‘the decision
in Maneka Gandhi v. Union of Indi
The underlying principle is that ¢ person is entitled*te
ms
be’ éntormed as to
a
d that the lige ad berty of a person
cannot be put in peril on an §
3. In State of MB. v
can be put under that

the Act has left to the
Wthority concerned to treat any
citizen as ‘has declared the Act to be
unconslilyé Sf the infirmities in the operative
Act. This Hon’ble Court in K.A.
C780 : AIR 1971 SC 481 has in
Q
agueness. There is ample authority for the

ndamental rights may be so considered.”
is held to be void on grounds of vagueness as it offends the Due

lause. “... vagueness may be from uncertainty in regard to persons

Summary of Arguments (conid.)
IV. Mr Prashant Bhushan and Mr Pranav Sachdeva, Advocates for the petitioner (conid.)
within the scope of the act ... or in regard to the applicable tests to ascertain
guilt’’ [Musser v. Utah, 333 US 95, 97 (1948)]. A statue limiting the right
free speech and expression if found to be vague would be declared#wok
Winters v. New York, 333 US 507 (1948). “Vagueness may invaida
provide the kind of notice that will enable ordinary people lo unger
what conduct it prohibits; second, it may authorize and even eticou
arbitrary and discriminatory enforcement.”
(1999)] “It is a basic principle of due process that an ena
several important values. First, because we assume that man f

between lawful and unlawful conduct, we insist that laws give t
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 dis 1 ry enforcement
is to be prevented, laws must provide explicit standar ‘those who apply
policy matters to
hoc and sybjective
basis, with the attendant dangers of arbi minatory app Hi
Third, but related, where a vague statut [s] upon selisitive areas of
basic First Amendment freedoms,” at
[those] freedoms.’ Uncertain meaning
wider of the unlawful zone’
used in Section 66-A —

“annoyance”, eave ene
“enmity”, “hatred’’,
and the scope of eac

reasonable | intellige Kee
Seneral nature of these expressions.

, nage between innocent conduct and
ought to be,penaliged under this clause that is sought to be
1 ; ach of the expressions gives them a
sitates that the statute should limit their
md precise standards of conduct. Given that
e Standard of certainty ought be the highest in a criminal statute, Section
66- A should be declared voidi'as it does not provide precise and clear
s for each of the expressions.

IV. Mr Prashant Bhushan and Mr Pranav Sachdeva, Advocates for the petitioner ( contd. }
7. Something that might be “grossly offensive” to one person need not bé

so to another person, similarly what might cause annoyance to one per
need not affect another person in the same way. The conduct specified Here,
depends entirely on each complainant’s sensitivity. This further buttreé he’
argument that the expressions used in the clause are vague and amb .
Further, the statute fails to specify on whose sensitivity | the ity ofthe
officer, or the sensitivity of a hypothetical reasonable man.

8. Tt is true that most of these expressions have also %
Penal Code, however, il is submitted that the IPC unlike
provides greater specificity to each of these expressions by
scope by prescribing clear standards by which the prohibited cont
determined. For e.g. Section 124-A which is the offeng wating i to sedition,
to hatred or contempt
mits phe scope of the
that it is considered an offence.

9. Section 153-A IPC deals with “pi ng ity bewwedh different
d
groups on grounds of religion, race, placé:of mnt birth, residence, | ER, ng agejetc.,
érmony” . For ay 4
regarded as an offence under this sectién, the act must negé
should be between “different reli gb, racial, ‘languapél

castes Or communities” and onk Qi grounds of “ok
ily of public
to the extent that it
re the persons affected and

pons: it is submitted that this
specific fitent is 4 ks to penalise any information that

“srosshy cing character’. The requirement of
prohibited 3
clause (a) 0
iend playing a prank simp ; in jest which as per the complainant’s
ensilivly qualifies to be “grossly offensive’ might be penalised. Il is
that right to offend is a basic part of free speech. A provision

IV. Mr Prashant Bhushan and Mr Pranav Sachdeva, Advocates for the petitioner (conid.)
cause any annoyance to any other person, makes the right to free speech
absolutely meaningless.
Restriction under Section 66-A falls outside the ambit of Article 19(2):°
11. It is submitted that any restriction to freedom of speéth
expressions is only valid if il meets the touchstone of Article 19(2)..
19(2) lays down that the State can impose reasonable restriction
19(2) is unconstitutional. In Brij Bhushan v. State of

and Romesh Thappar v. State of Madras, AIR 19
then the restrictions authorised under‘

unconsUiluuional.
“grossly offensive” seeks to cause

“annoyance or inconvenience , insult, injury,
criminal intimidation, ¢ enmi
we’ character’, causing
“annoyance” : “incorike will” cannot be taken to
mean as something
the sovereignty an
nlended to “annoy” or cause

ied banter or the earnest expression
£9(2).
: In serious or aggravated forms communication which is grossly
or causes danger, insult, injury, enmity or hatred might lead to

IV. Mr Prashant Bhushan and Mr Pranav Sachdeva, Advocates for the petitioner ( contd. }
in Romesh Thappar v. State of Madras (supra), wherein while dealing with

the contention that the expression “public safety” in the impugned Act, whigh
is a statute relating to law and order, means the security of the Province}a
therefore, “the security of the State” under Article 19(2) as it was priért
Constitution (First Amendment) Act, 1951 has observed the following:
“The Constitution thus requires a line to be drawn in thes,
public order or tranquillity marking off, may be, roughly, the bound
between those serious and aggravated forms of public di Lae
calculated to endanger the security of the State and thé
breaches of the peace of a purely local significance,
Therefore, there being a significant difference in degree bai reen the

restriction enumerated under Section 66- A and Argicl eH(2), it cannot be
possible intention of causing a slight annoyanti oe

emphasise an idea or opinion, or to prom a
dissalisfaction over the current intOlerance or

animosity cannot be the basis fe asti itional freedom @
under Article 19(1)(a). :
17. Therefore, the petiti
ression” contained in Article
ideas”,
ee “right to ¢
ces
tizens ‘to spcak, ppilish TCSS their views as well as tishto‘of g
“to know about the affairs of the
of Civil Liberties v. Union of India, (2003) 4

» 38- 45. In para 44 (p. 440) this Hon'ble

V. Mr Sanjay Parikh, Advocate, for the petitioner (contd. )
a 2. Freedom of speech can be restricted only in the interest of the security

of the State, friendly relations with foreign States, public order, decency®
morality or in relation to contempt of court, defamation or incitement’to
individual under Article 19(1)(a) are those which clause (2) of Artis
permits and no© other.] Case law for the above Proposition is giv en 1 belg
at pp. 857, 862, 863 and 868

“Arp. 863
For, the scheme of Article 19 is to enumerate different freedoms
separately and then to specify the extent of restrictions ty
c done. A citizen is entitled to enjoy | eacl

freedoms together and clause (1) does not™ eferipne freedom to
another. That is the plain meaning of this clau It fo slows from this
even for securing the better enjoymé

grealer reason, therefore, for holdin
d restrict one freedom by placing i;
on another freedom.”
“Al p. 868
e
(b) People’s Union ofC
399 at p. 438, para 39
“So legislative ‘a fundamental right
‘as provided under
ved¥ate, real and rational,

o be clear, unambiguous and not

V. Mr Sanjay Parikh, Advocate, for the petitioner (contd.)
any form of demonstration could be sustained as falling within the scope ,

of Articles 19(2) and (3). Reliance was placed on the judgment in Su
Central Prison v. Ram Manohar Lohia, Mme 2 SCR 821] ang ft
observed:
“At pp. 383-84
breach of public tranquillity and doves

forms of demonstrations which might lead:
(b) Vide Supt., Central Prison v. Raum mM
SCR 821, at pp. 826, 827, 830, 832 36 3
Powers Act, 1932 was under challen
judgment of the Federal Court | in R
Hon'ble Court observed that,
“annoyance”’, should r
disorder.
__Rinally whi ee,
i a Section 3 of the Act. in an attempt

ve pointed out that any instigation by
av visible repre tation not to pay or defer payment of any
exaction or even contfactual dues to Government, authority or a
iidandowner is made a offence. Even innocuous speeches are
prohibited by threat of punishment. There is no proximate or even A
oreseeable connection between such instigation and the public order

sought to be protected under this section. We cannot accept the

argument of the learned Advocate General that instigation of a si
individual not to pay tax or dues is a spark which may in thérlone,,
hypothetical and Imaginary considerations. It is said thet

democratic set-up there is no scope for agitational appreach, gnd f
ifa law is bad the only course is to get it modifie
process and that any instigation to break the I
disturbance of the public order. If this argument
limitations be accepted, it would destroy the right
speech which is the very foundation of democratic way
there is a proximate connection between , the.#ins
public order, the restriction, in our view, is er¥easonable nor is
it in the interest7 Of purlic order. In this vie we Must strike down
that the anticipated dange

fetched and that it sho
expression. Thereafte other words, the
expression should , t with the action,
contemprated lik
is the oblig
While |

V. Mr Sanjay Parikh, Advocate, for the petitioner (contd.)
legal dimensions and consequences. After considering the judgments on

Article 19, in para 37 the following question was posed:
“The next question which is required to be answered, is whet
there is any distinction between the freedom of the print media, 4
Law” as well as the judgment of the US Supreme Co

Broadcasting case, 395 US 367. In para 43 the law on freed
expression under Article 19(1)(a@) as restricted by Artié
summarised. It was also held that (vide para 45), burden is on
answered in para 78, where the Court stated that (at

“But to contend that on that account he restrictions to be
imposed on the right under Article (2) a s Guld be in addition to
(2 o
and the problems posed by the e

alleged scarcity of, the frequenc
the media. If the right to reéigm
the right to disseminate inforrhatit,
population as is possible, the acc
circulation of informatia} ° hot restrict the

content of the right no mat ify i its dewigh'Lhe virtues of the
greater regulation
content of theProk
exercised witht
public interés
unconstituth
jat a law is void for vagueness if its

oh laws result in unfairness and are
n is given below:
p State of Punjab, (1994) 3 SCC 569 at p. 644

travels faster. There is however no rational nexus between creating new

calegorics of criminal offences and any permissible aim sought to:
achieved under Article 19(2). This is especially noticeable in the cage
Section 66-A, rather than other offences such as cyber terrorism or ‘Aac
as covered under the Information Technology Act, 2000.
(a) Ministry of I&B, Govt. of India v. Cricket Assn. of Bengak
2 SCC 161 at 195.
7. Section 66-A is also bad in law inasmuch as it mixs
major offences and does not contain any differenlialion betwe
“
for them. It includes, “criminal intimidation” and, annoyé
providing adequate notice. This is not so in the case*

merely contains phrases. Hence, this also leads to, p of major and
minor offences, in a bundle of phrases under Séct 6-A Icading to the
same penal consequences. In support of the aba’ reposition, cage law is
cited below:
(a) Vide Om Kumar v. Union
Supp 4) SCR +093]
% “principles
Bu
of
asistent with the
Constitution ®
freedom to
unions...
8. Internat
powerful instruments of the 21st century for increasing 9 transparency i in

thegconduct of the powerful, access to information, and for facilitating
citizen participation in building democratic societies. Indeed, the
t wave of demonstrations in countries across the Middle East and

North African region has shown the key role that the internet can play i in
mobilising the population to call for justice, equality, accountability and
better respect for human rights. As such, facilitating access to the internéh,,
for all individuals, with as little restriction to online content as pessihl
should be a priority for all States.” .
9. The expressions which have been used in Section 66-A one fol ‘Bge
defined. This can be compared with Section 66 where
“dishonestly” and “fraudulently” have been defined and giver
meaning as provided in IPC. In Sections 66-B, 66-C, 66-D: 0
67-A and 67-B the offence for which punishment has been pr
defined. However, in Section 66-A, the expression “grossly
menacing character, annoyance, inconvenience, dange obstruction, insult,
etc. have not been defined. These expressions are Hbs¢ ly vague and are
subjected to different interpretations. None of thesé : expikessions can be
extended to the logical conclusion mainly that ..g Hi emation which is
Article 19(2). What can cause annoy:

annoyance to another; the subject- muller
can be totally innocuous. It can alsa? ys
Article 19(1)(a) does not allow the dig
bring an expression within Article 19(2).
66- A violates Article 19(1)(a). Tt j the definitions
ee
ticle 21 of the Constitution and derogates

chin H1-A CrPC.

VI. Mr Gopal Sankaranarayanan and Mr Renjith Marar, Advocates, for the petitioner
(conid.)
I. The validity of Section 66-A, IT Act i

3. Section 66-A is not traceable to any of the grounds laid down
Article 19(2):
3.1. If the law is not traceable to the grounds under Article 19(2).
falls foul of Article 19(1)(a). (See Note 1]
3.2. Decency is based on “current standards of bchaviou
(See Note 2)
3.3. Public order is in any case an exclusive State subjé
List II of Schedule VII. If the provision is sought to be j
ground, then it is void for competence. (See Note 2)
which the legislation is traceable.

4. Withoul prejudice, Section 66-A imposes re
reasonable: (See Note 2)
4.1. The threshold is low, subjective and yinde!
4.2. The punishment is disproportionate.
between those who maliciously «

Mithu v. State of Punjab, (1%
right to information of
access is taken away.

(contd. ) :
9. Section 69-A merely reproduces the grounds in Article 19(2) wit

providing guidance regarding their interpretation or application:
9.1. The grounds under Article 19(2) are the basis for justifying,
that infringes free speech. The same cannot also be a parame
determining the grounds for blocking without some objective parant
guidelines that clarify exactly the scope of security of the Stat Hi
friendly relations with States, etc.
When the occasion arises, the judiciary is regularly called up

their meaning.
9.3. It is Parliament’s essential function to provi
execulive on the manner of their interpretation. This: c
legislative policy in sufficient clearness (lacking in Si
down a standard to be followed (also lacking).
9.4, The “reasonableness” test under Artiéle
with Parliament presuming that the arbitrary agd
determination by an authorised offi d
reasonable.
all these facts in enact f

12. The power
safeguards as is
CrPC is explicitly
g
SIIREYA SINGIIAL v. UNION OF INDIA 57

(conid.)
17. In any event, the field isi occupied by the Central legislation, the;
10 of 2009. The Ker ala Police Act came into effect «on 27-4-2011.
18. Without prejudice, the section must either be read down
offending portions severed. See State of Karnataka v. Ranganathag
(1977) 4 SCC a7 I7- JT]
rea, thereby breaching Articles 19 and 21.

V. Scope of Article 19(2)
Must be traced to the grounds in Article 19(2)
20. Sakal Papers (P) Lid. V. Union of India, (1962) Ba
Bench) — Sof pages and
of the public
availability of newsprint or foreign exé

Article 19(2).
22. Supt., Central Prison v. Rath.Maj ohd¥eLohia, (1960
innocuous speeches and held not to be justé

any case not reasonable.
Must be reasonable
Judge Bench) — The
Criminal Law ‘Amendment Act of Madras allowed the r@vilicial Government
to unilaterally declare any, Bsobjgtion as unlawéul &clare as such in the
Gazette. The challengé si its restraint of Article
191) as it excluded nunicate to the affected
é time-limit.
(5-Judge Bench) — No
er representation to the State
Special Powers (Press) Act
961) 1 SCR 970 — Definition of

hence unreasonable in its restraint
Gastitution,
j
fnces for eating houses endowed the Commissioner with unreasonable

yhich the majority held‘ Was invalid as violating Section 19(1)(g).
warka Prasad Lakshmi Narain v. State of U.P., 1954 SCR 803 —
Over licences under the U.P. Coal Control Order were held to be

(contd. ) :
unreasonable and violating Article 19(1)(g) even though reasons were to’ g
recorded in writing.
VI. On Decency and Public Order
28. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, r
the ground of religion,

“28. The expression ‘in the interests of’ used in clatig
19 indicates a wide amplitude of the permissible law
enacted to provide for reasonable restrictions on the exercisé
under one of the heads specified therein, in
constitutional scheme. Two of the heads me# c
The dictionary meaning of ‘decency i

behaviour as generally accepted, cont Emily with
behaviour or propriety; avoidance of obscenity; | ang
correct behaviour’ (The e
‘conformity to the prevaili
etc.: and the quality of b ing a
29. Thus, the ordinary dig ti nary mea : "
the action must bé&in & nformity with the .@ tandards of behaviour
or propriety, & im Secular polit requirement of correct
behaviour or propti. at an appegs should not be made on f
the ground of ry iiself is no index of the
or the House. In Knuller
disgusting and revolting. .

,Lhus, seeking votes at ‘en election on the ground of the candidate’s
é on in a secular State, is against the norms of decency and propriety A
He society.”

(conid.)
29. Rev. Stainislaus v. State gh P, (1977) t SCC 677 (5-Judge Be
Entry 97 of List I.
“24. The expression “public order” is of wide connotgti
have the connotation which it is meant to Provide : as the
by the Government which they have established.

25. Reference may also be made to the decigi f
State of U.P, 1957 SCR 860, where this Court ha heldthat the right of
freedom of religion guaranteed by Articles oie d #6. ofthe Constitution
offence relating to religion cannot

have been enacted in the interests
interests of public order. Referencé+

decision in Arun Ghosh
has been held that if a 4 Sc life of the
community, and does & sitidiyidual, it would
amount to ise coma é hus, if an attempt is
has been ‘forgibl} figion, it would, in all

probability, ‘Biv a breach of the public
order, affec - The impugned Acts,
therefore, fe isthe purvie : of List IT of the Seventh
Schedule @8"the) re meant to a joid igiurbances to the public order
by prohibiging (
., Mahajan, Mukherjea, JJ’s opinions)


(contd. )
31. State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284 (7-Judge Bench
Discretion given to the State Government to direct a case or class of cai
be tried by the Special Court.
(Fazl Ali, Mahajan, Mukherjea, Aiyar and Bose, JJ. in Majority)
(Paras 115-20)
33. District Registrar & Collector v. Canara Bank, (206
Amended Section 73 of the A.P. Stamp Act permits inspectioi
documents which may even be in private custody.
(Paras 54, 57-58)
34. Subramanian Swamy v. CBI, (2014) 8 SCC&68& «Judge Bench) —
The validity of Section 6-A of the DSPE Act &
(Paras 46 and 49)
ul mitigd ini
Ynaintain a bal tac
individual liberty and societal order pea
police exercises the power of arrest, pr
Chapter V of the Code.
36. The Law Commission 3% :
propositions enunciated by this Hor vk i gind Kumar Vv. State of
U.P., (1994) 4 SCC 260 which té : ff ations of the Third
Report of the National Polige Paras 12 and 20 and
incorporated them as dire es of arrest.
"the decision in D.K.
directions are given to
éSts arc carricd out. These
aFwould be mo re relévant asa it concerns the criteria for

arrest, while D. K. Basu déals with, the circumstances once the decision to
that Section 41 “A was

>
dens :S, police officers and other experts before considering the flaws i in

(conid.)
Section 41 and the lack of safeguards therein. Specifically at pp. 92 and # 3,

the Commission questions the silence in the statute with regard to safeguar, 3
against arbitrary exercise of arrest powers by the police.
40. In pursuance of its recommendations, the Commission app ds"
Annexure T (pp. 130-46) a Draft CrPC Amendment Act which ing
provides for an amended Section 41 and the insertion of new 1
to 41-D.
B. The amendments to CrPC — 2008 and 2010
41. Although the 177th Report was submitted to the Gové
it was not until 7th January 2009 that the Code of Crim
(Amendment) Act, 2008 (Act 5 of 2009) was passed, inter alia mending
Section 41 and inserting new Sections 41-A, 41-B, 41-C_and 41-D
42. Not long thereafter, the Government passé the “ode of Criminal
Procedure (Amendment) Act, 2010 (Act 41 of 2010) Which mended Section
41 to add the requirement that a police officer would d the reasons for
not making an arrest as well. Also, Sectio “442A ™was amended by
substituting “shall” for “may”, thereby making the iésué of notice m ndatory
where an arrest was not being made under,Sec i
43. Pursuant to this, the police o various ‘State
Governments have issued directives to it ‘ ‘nel in compliané ie the
new provisions. This includes the citeula
Section 41-A of the Code. .
C. Judicial interpretation
44. Being of recent vintage,
consideration before this Hon’blé
44.1. Hema Mishra v. State of
the powers under Article 22¢%6u¢9
pre-arrest bail in Uttar, Pre q is ought not to be
converted into the hjth to emitted Section 4 iefae thas the concurring
judgment of Sikri, J"
olice custody has to be examined

ust he balanced agai “the duty of courts to uphold the dignity
V ey guard the right to hbenty without

(contd. ) cs
44.2. Siddharam Satlingappa Mhetre v. State of Maharashira, (201 13 k

SCC 694: In describing irrational arrests as a violation of human rights,
Court suggested certain other avenues of averting arrest at paras 115-8:
referred to the 3rd Report of the National Police Commission, i

is mentioned that the quality of arrests by the police in India t
The Report suggested that, by and large, nearly 60% of;

either unnecessary or unjustified and that such unjustifréd
peculiar facts and circumstances of the case.

117. In case, the State considers the following
perspective then perhaps it may not be necessax
liberty of the accused in a routine ma
illustrative and not exhaustive:
such as, the title deeds of prop

share certificates of the accused.
(3) Direct the accusedte execute bonds.
of persons which accor

of the facts of the pa.
: imperative to arrest the accused

guded i in the case diary immediately after
oss of any lime so that the court has an
sider the case for grant or refusal of bail in
Lalita Kumari v. State of U.P., (2014) 2 SCC 1: While considering >

registration of FIRs in cognizable cases is compulsory, the

(conid.)
Constitution Bench dealt with the argument that compulsory registration

lead to compulsory arrest in the following manner: Be
“1 06. Another stimulating argument raised in support of Prelynig
which will directly be in contravention of ‘Article 21 of the Const

b 107. While registration of FIR is mandatory, arrest of th
immediately on registration of FIR is not at all mandatory.
registration of FIR and arrest of an accused person at fCo etitirely
satgguards
are satisfied. Thus, in appropriate cases, he can av

provision by obtaining an order from the court.
manner. Some important observations are

d “20. ... No arrest can be mide.
ak
allegation ‘of commission of an
the constitutional rights of a cit

that no arrest should be made Wi
reached after some investigation as to‘the genuil
e of a complaint and a réas@nable belief bothias
person of his liberty js <

Police Commission
jon of complicity in an
f offence. Ther @ justification in the opinion
of the officer ‘ arrest is necessary and
carlicr been the view of the 7-Judge Allahabad High Court Full Bench in Amarawati v.
U.P., 2005 Cri LJ 755 at paras 18-20 after following the judgment in Joginder Kumar.
full Bench decision was approved and followed by this Hon’ble Court in Lal Kamlendra
Bip Singh v. State of U.P., (2009) 4 SCC 437,

(contd. ) :
45. The cognizability of¢ an offence and the need to> arrest perpetrator
agéiis why
fficer may
(recidivism), causing the disappearance oft ovidely

witnesses or flight from justice.
46. Cognizability has little to do with th
prescribed by the Code. An apposite illustrations
be infused with the relevant considerations for «¢

likelihood of recidivism, the unplikefthood of securing:
‘of bail guri

ess. Howe '
rding — “for proper
investigation of the¢ interpreted narrowly to
be limited to the re ogation, several of the
accused would fing llateral purposes, with the
parrot the phrase — “arrest
the proseculion of offences under Section

Amunication Act, 2003, following Chambers
, (2012) 1 WLR 1833 the CPS issued “interim guidelines on
ing cases involving communications sent via social media’’.

(conid.)
IX. The IT Act — Contrast with the real world
Impugned provision Real World Illustration
Section 66-A, IT Act (4) A writes a particularly passionate letter

sweetheart B and posts it to her ag
complaint by C and upon convictio

3 years in ' Prison.
chicken on the sly. @

and upon conviction £
which it sgeks ©
unsolicited 18
Section 69-A, IT Act Event Manag:

: ¢Gncekt, birys tcleviskon
Hlowing weekend. K,
airs who has for long
‘On all channels. The show

hd J suffers huge losses.
Amy
focted political commentator is to
"A tfairs directs the publishers to

top printing and has all copies of the
_ book’: confiscated claiming that it would affect
relations with Israel. M goes into
depression and commits suicide.

(contd.)
X. Select list of blocked links in 2012

[Source: The Centre for Internet and Society, Bangalore]
Domain Total Tuesday, Monday, Sunday,

numbe . 21-8-2012 | 20-8-2012 19-8-201
rof :
: entries
ABC. nct.au
ERR
AlJazecra.com
» AllVoices.com
PR ER
WN.com
Atjeh net
RR
BDCBurma.o
Bhaskar.com
OR
Blo t.com
EM fH EAR
Blo tin
Catholic.o
CentreRight.in
ColumnPK.com
Defence.pk
PPP
EthioMuslimsMcedia.com
Facebook.com (HTTP
Nin
si
Facebook.com (HTTPS
Farazahmed.com
Firstpost.com
HaindavaKerelam.com
HiddenHarmonies.
HinduJagruti.or
Hotklix.com
Hu ights-[ran.ir
Intichat.com
Trrawady.or:
IslamabadTime
© Issuu.com
JatriaN ‘com
Jihad Watéh.o.
KavkazC:
MwmJa’
com
juice.com
Onlsl et
ess.com

(conid.) iets
Plus.Google.com
pf
Reddit.com
RiP
Rina.in
SandeepWeb.com
ER iS
SEAYouthSaySo.com
b Sheikyermami.com
RR
Storm[ront.org
Telegraph.co.uk
TheDailyNewsEgvpt.com IR
ER
ThePaultLines.com
ER
ThePetitionSite.com
ER
Cc TheUnity.org
PRR
Timesofindia.Indiatimes.com
TimesOfUmmah.com
ER
Tribune.com.pk
Twitter.com (HTTP)
ES
Twitter.com (HTTPS)
TR
mie
d Twitter account
INR
TwoCireles.net
Typepad.com
ER
) Vidiov.info
WER
_ Wikipedia.org
Wordpress.com
YouTube.com ob 14 14
YouTu.be 1
Totals $0
The above analysis has be

. LiveMint (4-9-2017.
NN
bw
AWA
a
CN
Reuters (24-4 8-2012)

“10. Outlook (23-8-2012)
“hd. FirsiPost.India (23-8-2012)
>

(contd. ) :
12. IBN Live (23-8-2012)

13. News Click (23-8-2012)
14. Medianama (23-8-2012)
15. KAFILA (23-8-2012)
16. CIOL (23-8-2012)
oe
ee
Qed with a
governance, to prevent computer based crimes and ¢

and procedures in the context of widest possi
technology worldwide.
51. With proliferation of information techijo
e-governance, e-commerce and e-transacti
implementation of security practices cedures relating, to ‘these
applications of electronic communication: ave, issumed greatéi
and they required harmonisation with 4 provisions oly
leakage of data b
personation—com
auction sites, etc
Information Tec!
bringing harmo tsat i

n with Model. :
United Nations C Cc mumission:
6. Both Houses of Pariament passed the Bill on 23-12- 2008.

ubsequently the Information Téchnology (Amendment) Act, 2008 received
e assefit of President on 5-2-2009 and was notified in the Gazette of India. A

(conid.)
a XII. Cyber crime units in India

54. The 2011 NASSCOM Cyber Crime Investigation Manual lists opt t
major cyber crime units in India and their jurisdictions. 22 States, an
Union Territories are covered by this.
55. A Notification of Karnataka State dated 13-9-2001 suggests 4h’
b designation of a particular office of the police is notified undep:Sectjion -
CrPC as the cyber crime police station for offences under IT Agi,
specified areas falling thereunder.
Brief supplementary submissions
Section 66-A
56. Is not traceable to the grounds? under Article 19(2), an
c foul of Article 19(1)(a). Public order is a State sub
justification
57. Is not reasonable* as the threshold is subjectiv
creates a criminal offence; as it is based on the SURGE
10 exceptions in Section 499 IPC; and. catiries

d unlike the complaint mechanism i in Section 19%Ci
ably classifies intgrnet’ tasers
‘ J ational
prosecutions may be initiated under both statutes fax" thes; act, and
© culminate in separate convictions} thereby infringing Artiéle 202) as well.
59. Is also in breach of VE
uncanalised. powers’ of detery
61. Is violative of eproduces the grounds of

Article 19(2) butgilge eness requirement. Mere
i t s : satisfy the reasonableness

(contd. ) :
62. Is in breach of Article 14 as it endows uncanalised and unguid

powers on the Central Government to be “satisfied” that it is “necessdry .Ob,,
expedient” to block a site; does not offer notice or communicatiom,to he:
owner of the content; does not follow the principle of audi alteram fi
and does not provide an avenue of appeal.
such consequences. In addition, Sections 95 and 96 CrPC la¥.do strict and

limited circumstances in which content may be forfeited, and th a Aétailed
procedure of applying to the Special Bench of the High Court
Section 80
c
64. Is a clear infringement of Articles 14 and 248 as ite sprovides for no
safeguards from the exercise of arrest power unlike cliGhs 41 and 41-A
State of U.P., (1994) 4 SCC 260.

67. Due to concerns about the prosceig
127(1)(a) of the Malicious Coma nication Act, 2003,
v. DPP, (2012) 1 WLR 18:7 CPS issued “i e
prosecuting cases involving co
A
of Karnataka v. Ranganatha Reddy, (1977) 4 SCC 471 at para 36

VIL. Mr Tushar Mehta, Additional Solicitor General,
for the Union of India
I. On Freedom of Speech and Expression as contemplated under. ,
Article 19(1)(a) read with Article 19(2) in the context
of Information Technology Act
1. The first judgments in the point of time were judgments in #é
p Thappar v. State of Madras, (1950 SCR 595)! (Constitétior
judgment) and Brij Bhushan v. State of Dethi, (1950 SCR 605:
Bench judgment). These judgments were in the context of
stood before the Constitution (First Amendment) Act, 1951.
2. On 18-6-1951, the Constitution (First Amendment) At
brought in, amending Article 192) of the Constitution of Indi
c
was first considered by the High Court of Patna in th tudgtgent ini AIR 1954
Pat 254,5 more particularly in
a the context of the term “TA, thesntecrest of’ used
é test of
each
-liyn that the Cofstituton is| Meant not only for people of
g ay of@thinking id that the majority of the elected
‘In authorising the imposition of the
& reasonable.”4 (emphasis supplied)
8, Compilation of Judgments, Vol. VI

65, Compilation of Judgments, Vol. VI
, Compilation of Judgments, Vol. V1

VII. Mr Tushar Mehta, Additional Solicitor General, for the Union of India (contd.)
4. All the above-referred judgments came to be considered by this

Hon’ble Court in Ramji Lal Modi v. State of U.P., (1957 SCR 860)5
(Constitution Bench judgment). The followmg important facets eniérged
from the said judgment:
(i) This judgment pertained to a magazine as a medium;
(ii) This Hon’ble Court held that that term “in the interest of
apply to each one used in Article 19(2);
the Constitution, cannot be ruled out, the entire law shoul i

unconstitutional;
(iv) This Hon’ble Court held that Section 295 o be coifistitutional
since it is made “in the interest of’ public order
5. In the judgment in Virendra v. State of Pu
(Constitution Bench judgment), this Hon’ble Coust:
judgments, in the context of print media vis-a-vis
y
facets of the said judgment are as under:
mighty instiluuon
wielding enormous po , be exercised for
the Protection and ie ‘but which, may
i ocial purposes by
f the people against
another sedéo the public order and
tranquillity of: ay be of a subversive
character. 7; BW spapers, for good or evil,
sweep of their reach, the
burning topic of the da¥, Our social interest ordinarily demands the
ge 74, Compilation of Judgments, Vol. VI

-95, Compilation of Judgments, Vol. VI

VII. Mr Tushar Mehta, Additional Solicitor General, for the Union of India (contd. )
free propagation and interchange of views but circumstances may

arise when the social interest in public order may requir
expression to the needs of our social interest in public ord

Constitution recognises this necessity and has attempted to
its earlier views from Romesh Thappar judgmenk “ the line. The
salient features of this judgment are as under:
medium.
(b) This Hon’ble Court construé
d 19(2) and held that all the ground:
under the general head “public
sense though ordinarily they An
is, It enables the

ise of the right
to freedom of sp _thg, interests of the
securily of the S& lat‘ ns: i foréign States, public
; ontempt of court,
®. All the grounds
nthe general head ‘public
ut the juxtaposition of
ugh sometimes they tend
ily intended t to exclude each
6, Compilation of Judgments! Vol. VI

e105, Compilation of Judgments, Vol. VI
2, Compilation of Judgments, Vol. V1

it is the absence of disorder involving breaches of local

significance in contradistinction to national upheavals, such:
revolution, civil strife, war, affecting the security of the State;
s
there must be proximate and reasonable nexus betwéen$the
speech and the public order; (3) Section 3, as it now stan
not establish in most of the cases comprehended by it,
nexus; (4) there is a conflict of decision on thy “question f
ee
s severable in its
application to an object which is clearl ated from other
object or objects falling outside the li
permissible legislation, and (5) the Preis j
19(1)(a) of the Constitution. This was a

jurisprudence as “commercial speech’’.
lo regulating Ae. p'

also to regul. e tie aHocation of space
for advertising matters. Thrs*: yi: t
offends freedom of spgec and “expression. Tl
“case, this Hon’ ble Court was

nsorship essentially apart from
1 P. 188 of Ministry of 1&B, Govt h India v. Cricket Assn. of Bengal, (14995) 2 SCC 161
(sepagately tendered)
(sep, iditely tendered) |

3-126, Compilation of Judgments, Vol. I

9. In Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 78g)!

(Constitution Bench judgment), this Hon’ble Court again considei
Article 19(1)(@) in the context of print media and the majority opiniortog
the view that compulsory reduction of any newspaper to 10 page
Article 19(1)(a).
10. The next case came up for consideration before this Hon’ble
Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, [A985
SCC 641]. This case again related to print media, namely, f 1g ‘Tt
Hon’ble Court explained the freedom of speech and expresgix
following terms :
() it helps an individual to attain self- fulfilment, Gi) it Me i in the

discovery of ruth, (iit) il strengthens the capacil {an individual in
des “a mechanism by
which it would be possible to establish a reasonble balance between
stability and social change.”
11. On the question of reasonable restrictipn
under:
d “In deciding the reasonablene
restrictions imposed, the dispropéirti

prevailing conditions including the soct
to be satisfied bys means of the estrictions.
at the Court’s commitment to

cannot be suppressed unless the
4 P. 191 of Ministry of 1&B, Gove. {India v. Cricket Assn. of Bengal, (1995) 2 SCC 161
(sepagately tendered)
‘ 15 P. 192 placita b to f) of Ministry of I&B, Govt. of India v. Cricket Assn. of Bengal, [1995)2
SCC 461] (separately tendered)
5-210, Compilation of Judgments, Vol. VI

community interest is endangered. It also held that anticipated danger

should not be remote, conjectural or far-fetched.
(iv) This Hon’ble Court held that it should have proximate and ‘dir
locked up with the action contemplated like the equivalent of a

a powder Keer
pawrertul means of C
communication. It has a unique capacity to disturand akouse feelings. It
has much potential for evil as it has for good, With mee e qualities and
what they watch, a movic cannot b

communication. It cannot be allowed to '
d
“The standard to be applied by the

film should be that of an ordinary man of commog ¢ e
and not that of an out-of-the*or lary OF hypersensifj e niin. The Board
should exercise considerabl
morality or decency of ur
ticular, 's to be sacrificed in
the guise of social chanyse | ‘ar cultural ag - The path of right
conduct shown hy t f
of ‘Dharma’ (righte
our civilisations
g

advocated in a film. To say that one should not be permitted to advocate

that view goes against the first principle of our democracy. If the fil
unobjectionable and cannot constitutionally be restricted under Aftielé,,
19(2), freedom of expression cannot be suppressed on account @f thieat
of demonstration and processions or threats of violence. That
tantamount to negation of the rule of law and a surrender to blae
and intimidation. It is the duty of the State to protect the fregdon
expression since it is a jppeny guarantced against the Sé atc. ne Sté
he “ustified on the anvil of necessity and not the a sang of convenience

or expediency. Open criticism of government poh J nd operations is
not a ground for restricting expression,’!9
16. Next judgment was Printers (Myson) “O, (1994) 2 eee
434] wherein this Hon’ble Court quoted of by Ghee
Terminiello v. Chicago, [337 US 1 ee
mouth or in writing or
therefore, includes the ri
ke considerable impact on the

nown to mould public opinion
placita fto h) of Ministry of 4&B, Govt. of India v. Cricket Assn. of Bengal, (1995) 2
1 (separately tendered)
ara 19 of Ministry of [&B, Govt. of India v. Cricket Assn. of Bengal, (1995) 2 SCC 161

VIL. Mr Tushar Mehta, Additional Solicitor General, for the Union of India (contd.)
dissemination of news and views for popular consumption is a must and

any attempt to deny the same must be frowned upon unless it falls wit
the mischief of Article 19(2). This freedom must, however, be exetti
with circumspection and care must be taken not to trench on the right, of
other citizens or to jeopardise public interest.’?!
18. This Hon’ble Court also further strengthened the concept of;
of speech and expression in the following terms:
“A constitutional provision is never stalic, il is evs
20. Having considered th

context of print media, n
oe f
21. In Ministry af,
(1995)2 SCC 161
on the freedom of speech and

stricted by Article 19(2). The
includes the right to acquire 9

anything, since itis only through it that the widest possible range of ideas :
can circulate. It is the only vehicle of political discourse so essentialjtg, “©
democracy. Equally important is the role it plays in facilitating agtist:
and scholarly endeavours of all sorts. The right to communicate
therefore, includes right to communicate through any media “
available whether print or electronic or audio-visual Si
advertisement, movie, article, speech, etc. That is why freed@m a spé¢egh *
and expression includes freedom of the Press. The freedaiit of t He Press
in terms includes the right to circulate and also to deter, f ii
of such circulation. This freedom includes the freedom"tg GOT
or circulate one’s opinion without interference to as large
the country, as well as abroad, as is possible to reach.” 23
22. This Hon’ble Court also considered electronic media as
free speech and expression i in the following terms:
television from
ad visual appeal
of the viewers and is also more . readi y

children at home. Unlike the print medi
limitation on the use of electronic
public property and hence are owned
scarcity, costs and competition. 24

23. This judgment is also useful to coftend that in
assert any right based upon Article, 21a) (See paras ¥ -8 3%,
under:
“1722. We, therefore,A
(i) The airwaves or YPrequencies ale a i ‘property. Their use
has to be gonty, a and regulatedifby public authority in the
interests of the jfPp % and to preve { thé@invasion of their rights.
Since the elect ise of the airwaves, this
use as in the case of any
of Ministry of [&B, Govt. of India v. Cricket Assn. of Bengal (1995) 2 scc 161

VII. Mr Tushar Mehta, Additional Solicitor General, for the Union of India (contd.) |
the public property, viz., the airwaves, involved in the exercise of the
right and can be controlled and regulated by the public authority;
This limitation imposed by the nature of the public property inviblv d,
in the use of the electronic media is in addition to the restki
imposed on the right to freedom of speech and expression
Article 19(2) of the Constitution.”
25. It is important to note that for the first time this Hon’ ble Cott p
introduced the concept of airwaves or frequency being a “public proper
and recognized the right/power of public authorities to com d regtilate
the same in the interest of public and also to prevent invasio :
pu
like any other sports event provides entertainine

is a facet, a part, of free speech?5, subject to thet# a where speech
and conduct are joined in a single course; the free speech
values must be balanced against competitt ”
27. In the said concurring Judgmeng, thi d
concept of “broadcasting freedom” in the®:
(i) Freedom of the broadcastegg;
(ii) Freedom of the listeners#iewWers to a varied
plurality of opinion;
(iii) Rights of the citizens
broadcasting media; and : e
ae table interference
in such rights in the _intey s stig ien of safeguards by
imposition of programithe s
“176. Broadgast
viewers and liste f
basis that the
g
ng the freedom of radio and television
according lo this perspective is that the
broadcasting institutiors are free to discharge their responsibilities of
roviding the public with a balanced range of programmes and a
ariety of views. These ‘free speech goals require positive legislative h
hh Burstyn v. Wilson, 96 L Ed 1098 : 343 US 495 (1952)


provision to prevent the domination of the broadcasting authorities

by the Government or by private corporations and advertisers, dad.
perhaps for securing impartiality...’
ok * *
so that it can make sensible choices on political and*

particular, these views should be exposed on televis
important contemporary medium. It is Indeed the interes!
claim for access to broadcasting | is that freedoigt

freedom to communicate effectively to a mags.
out supra.”
29. His Lordship also accepted that
following terms:
«chnology, thi arblument of
€ it is
at the local pre We

of giant media
Specified in Article 19(2), His
clause (2) of Article 19, in the
of the State, friendly relatigns with foreign States and public order are
ds referable to national interest whereas the second set of grounds
ecency, morality, contempt of court, defamation and incitement to

the interdependence of freedom of speech and the stability of society is

undeniable. They indeed contribute to and promote each other. Freed:
of speech and expression in a democracy ensures that the change désirgd,
by the people, whether in political, economic or social sphere, is.
are the hallmark of societies ruled by dictatorships, whi

this freedom. The stability of, say, the British nation,
convulsions witnessed in the dictatorships around the IS .ample
proof of this truism. The converse is equally true. The ri re stfible the
socicly is, the more scope it provides for exercise of right of
and expression. A society which feels secure can,.and docs permit a
greater latitude than a society whose stability® nstant peril. As ©
observed by Lord Sumner in Bowman v. Secular §
“The words, as well as the acts, which nd: tos ndanger society
table or insecure
but because, the times having

before.. - After all, the questiort ay,
to ) say nothing that would limit the right of society te protect ‘itself by
n whittever that right ¢
may be, but only to sa , Xperience haying,
thought real to be n rible, and dan s
in accordance f
I88. It i ounding Fathers while
guaranteeing & Ee of expression provided.
he said right © so exercised as to endanger
i ‘of the society, as the case m ay be.
of ifution and society | but equally in the
g
Sea the importance and significance of

s in 1995) in the following terms:
nd significance of television in the modern
Most people obtain the bulk of their

information on matters of contemporary interest from the broadcasting

medium. The television is unique in the way in which it intrudes into
homes. The combination of picture and voice makes it an irresistibly,
attractive medium of presentation. Call it the idiot box or by amy offer’
pejorative name, it has a tremendous appeal and influence over niflliciis ”
of people. ‘Many of them are glued to it for hours on end eat
b Television is shaping the food habits, cultural values, soci#l mores
what not of the socicty in a manner no other medium has do
Younger generation is particularly addicted to it.
instrument, which can be used for greater good as “al
immense harm to the society. It depends upon how it is ¥
advance of technology, the number of channels _availabl
c
some of the major networks is international, thes
country or one region. It is no 2 nee as ]
Free om public
e property. It ist the obligation utional system
to ensure that they are used cs
32. His Lordship also consi
are not prescribed. The

airwaves constitute public
by’ Article 19(1)(a) does include
Whiation, no one can claim the
ar employing public property. Only
g e public property, then only—and
¢ emphasised that whifle broadcasting cannot be effected | without

usitig airwaves, receiving the broadcast does not involve any such use.
Aigwaves, being public property must be utilised to advance public good.

Public good lies in ensuring plurality of opinions, views and ideas and
that would scarcely be served by private broadcasters, who would be i
disinformation and manipulation of. news and vicws th:

government-controlled media, which is at least subject to publi
parliamentary scrutiny. The experience in Italy, where the
programme controls it may prove _counterproductive # present

j in our
of the several enactments made with the best o

most laudable provisions; this is a reality which be ignored. It is
true that even if private broadcasting is not,gitt rom Indian soil,
such stations may spring up on the perigher
catering exclusively to the Indian public.’‘in
already come into existence. The 1
communication satellites and that
provide any number of channels, ani
developments must be in the offite ]
Parliament decides to ing the number

Doordarshan, diversifying ve into various
also the
he condition’
developments ané
developments. We
the above factog a
tids of the State exclusively. Both the

Syer the years with public funds. They
perty of the nation. It may even be said that
hey represent the material resources of the community within the
meaning of Article 39(b). They may also be said to be ‘facilities’ within
eaning of Article 38. They must be employed consistent with the
above articles and consistent with the constitutional policy as adumbrated

stands on a different footing. The petitioners—or the potential appHcay

for private proadeasting licences—cannot invoke the analogysofs%
b of the citizens of this country.’?7

33. In case of internet, apart from large-scale technologic¢g
during the period between television and internet, the question of usé of
airwaves/spectrum, which is a public property, is involved: hengyer an
internet user uses internet through a medium of cell phones ads ‘and in
case where V-Sat connection is used. It may be mentioned’ t “ATM
c¢ machines” is a “computer network” as defined under S ation 2) of the Act.
The entire network of ATMs is connected throug! V-Sap network using
airwaves. Whenever, wifi connections are available, hic net connectivily is
provided through airwaves only. ‘
34. In view of the above discussion and the s of Section 66- A, the
submissions are as under:
d 34.1. The internet as a medium of fre
different from print media, television
threshold of permissive regulation: ‘wade
different.
€ become a “reality as ‘each. perso

broadcaster” and does not nee eg
oF” the’ same based upon
eligibility criteria. Neithe ef low any regulatory
regime of conduct oreun
f
e ‘heeded in dhe ighter, St of sovereignty and integrity

reigst of security of a "the interest of friendly relations
ic order, in the interest of decency
g incitement to an offence.
. 298 of Ministry of 1&B, Govt. of India v. Cricket Assn. of Bengal, (1995) 2 SCC 161
jaralely Lendered)

(it) the recipient of the [free speech and expression used in a print
media can only be literate persons while internet can be accessed
literate and illiterate both since one click is needed to download
objectionable post or a video;
there i isaa permitted pre- censorship which ensures right of t viewess NGF Lo*
Mornitity Ws
individual and thereby | violating his*

Constitution of India.
(vit) By its very nature e
atch a movie. For television also

sion is placed and can only watch g
x fibed to and that too only at a time
i sin case of internet a person abusing the
ce at any place at the time of his choice and
almost all cases.

to be known. While in case of an internet mostly its abuse takes place

a : : :
under the garb of anonymity which can be unveiled only after thorough,
investigation.
(x) In case of other mediums like newspapers, television or fifi
approach is aways institutionalised _ approach Bovemed by i
regulatory ethical norms for exercising freedom of speech a)

under Article 19(1)(a).
¢ (xi) In the era limited to print media and ch graph; or even in
case of publication through airwaves, the chance ise of [freedom of
expression was less due to inherent infrast and logistical
constraints. In the case of said mediums,,it was ;
individual to create and publish an abusiv¢
d to trillions of people. Whereas, in, the ,
infrastructural and logistical con have disappeared asvi any
individual using even a smart jnobi ible niputer
device can create and publish ‘ABus '
just one click.

e
restrictions are four

oa:
f been mandated to prot
internet, posing a Ser l ic order problems or social

disintegration i K of a button. The freedom of
speech and
fion 66-A(a) of the Act or any

causing “danger” , “obstruction”,
tion”, “enmity”, “hatred” or “ill will” as
of the Act.

with the question specifically in the context of the First and Fourteenth
Amendments. In Metromedia, Inc. v. City of San Diego, [453 US 490 (198 }
the US Supreme | Court held as under:
refrain: see e.g. South-eastern Promotions, Ltd. v. Conrad, 420

420 US 557 (1975) (‘Each medium of expression . . must be, ass@
748 (1978) (We have long ‘recognized that each ‘medit

presents special First Amendment problems.’); Joseph
Wilson, 343 US 495, 343 US 503 (1952) (‘Each method t
its own peculiar problems.’)”
A similar view was taken as far as in the year 1949 ky
in Kovacs v. Cooper, [336 US 77 (1949)].
37. As already submillted the terms “annoyance?
used in Section 66-A(/) refer to “anmoyance,
Causing “annoyance” and/or‘ ‘inconvenience’ ‘As t :

sending * “information”, while exercising eee dott oO Gooch and exp
and/or “inconvenience”’ ey any other se

speech and expression.
38. So far as Section 66-A(c) is,concerned, it is clahora ly dealt with in
the submissions earlier tendered i ed here.
Conclusion
39. While deciding th

41. In the context of new emerging areas of technology and in the context
of Article 10(1) and Article 10(2) of the European Convention of Hunj
Rights [which is akin to Articles 19(1)(@) and 19(2) of the Eadist
Laurens and July v. France [GC], nos. 21279/02 and 36448/02, Sec
ECHR 2007-IV78, held that whilst certainty in a statute is desirable, HOW
it may bring with its excessive rigidity, and on the other hand thet laws mus
and whose interpretation and application are questions <

relevant text of the said judgment reads as under:
sufficient precision to enable the citizen to regul

és
his gonduct; he must
be able — if need be with appropriate advice— forg ce, loa degree
that 4 is reasonable in
i the circumstances, the conik
excessive rigidity, and the lawy must b ab > will chapging

circumstances. Accordingly, many law in ferms
which, toaa greater or lesser extent, ate
e "ouirement of
‘appropriate legal
consequences whigh as
relation to persqns ctivity, who are used to
cauéion when pursuing their
sted to take special care in
s which you know only when

il >» ‘words. In Aerorel Lid. v. Telco
-28 Judgiient in the compilation with éading “Additional Judgments Referred in Note on the
Question of Vagueness to be a Ground for Declaring a Provision Unconstitutional”.
"oO Judgriient in the compilation with heading “Additional Judgments Referred in Note on the
Sion of Vagueness to be a Ground Lor Declaring a Provision Unconstitutional”.

that an Article 52(2) exclusion is like an elephant, you know it when you
see it, but you cannot describe it in words. Actually we do not think t
is right—there are likely to be real differences depending on whitt
right approach is. Billions [euros, pounds or dollars] turn on it.”
43. Similar view is taken in Frances Muriel Street v. Der
Unemployed Workers’ Centre, [(2004) 4 All ER 839]°° where the
observed as under:
“S4. When I first drafted this judgment I was of the
case of the requirement of ‘in good faith’ (I say nothiat
about motivation of personal gain because it is not a
appeal), such an assessment should not, in my view, be
public concern and adopted by Mr Donovan as Sack” submission. Cc

In each case the answer one way or the oth ‘judicial
elephant’ emerging from the Tribunal’s consideratigy ofsall the evidence.
T considered that it could be unhelpful when the
countervailing considerations are of qui Ha di lkerey
prescriptive to introduce into the exercise
id negative d
good faith when it is so wicked snr jOUS as 2" appRoach
ever changing technology e

achieve.
45. A similar view is ta
[(1886) LR 11 AC 627}! as,
“Where the,
not be reduced t f
Fairs (Regulation) Act, 1968, was 9

moved before the High Court of
tm holding cattle fairs; Mohinder Singh
at pp. 1 & 8 of Compilation of Judgments, Vol. II

-23 at pp. 16-17 of Compilation of Judgments, Vol. II

Sawhney v. State of Punjab*. Before the High Court one of the

contentions raised by the petitioners was that the provisions of the Acs
were ‘vague and ambiguous’, and on that account the Act was%ultfé,
vires. The Court accepted that contention. The Court observed that t »
was a distinction between a ‘cattle market’ and a ‘cattle fair’ and sié
definition of ‘cattle fair’ was supplied by the Act, it was le
account ‘the infirmity went to the root of the matter, an

liable to be struck down in its entirety on the ground of
if some of its provisions were unexceptionable in themse
4. The State Legislature then enacted the Punjaby¢
(Regulation) Amendment Act 18 of 1968 which introduce
2(bb) a definition of the expression “cattle fair’ ag ang “a gathering of
more than twenty-five persons for the purpose of nerake sale ¢ or purchase
of cattle’. Fair Officers were appointed by the Sta
Act; Kehar Singh v. State of Punjab

the definition of ‘cattle fair’ was not
sales by private individuals outside, f
apply where in general, people assem®&
contravene the provision

Constitution’.
6. Certain persons inféreste
petitions in this Cgur Sretpents which
of the Punjab High Court in

ake the Act non-existent, as
Sir tht par order was passed in the carlicr
writ peti tion judicata, and on that account the
re-enactment. The High Court of
: case observed at p. 396:
) 71 PLR 24

‘
. as the infirmity of vagueness goes to the root of the matter,
legislative enactment has to be struck down as a whole even if so
of its provisions are unexceptionable in themselves.’
But the rule that an Act of a competent legislature may b
down’ by the courts on the ground of vagueness is alien
constitutional system. The legislature of the State of Punji
competent to enact legislation in respect of ‘fairs’, vide Enfry i of
b
guaranteed in Part III of the Constitution or is inconsis

constitutional provision, but not on the ground that it is va k
that in Connally v. General Construction Co.>>
Supreme Court of the United States of America th G
‘A statute which either forbids or requiresthe dging of an act in
terms so vague that men of common intcLlt #nust necessarily
guess at its meaning and differ as to,its gpp violates the first
essenUal of due process of law.’
But the rule enunciated by the Amerk
under our constitutional set-up. The a
‘due process clauses’ incorporated i
Sth and the 14th Amendments. The, c
declare a statute invalid on the groutid
law’. Under our Constitution, the test”
applied to statutes enacted by P:
Court has definitely ruled that’ i e
place in our constitutional
Kania, C.J., observed (SCR
‘There is consid
are not at libegty ti
f
aw settled by the deliberate

| safe and solid ground for the
declare void any legislative
A
322 : 269 US 385 (1926)
950 SC 27 : 1950 SCR 88

the first group of petitions. The effect of that decision was only that the
Act was in law, non-existent, so long as there was no definition of § &
expression ‘cattle fair’ in the Act. That defect has been remediéd by,
Punjab Act 18 of 1968. %
8. We may hasten to observe that we are unable to agree that tf
as originally enacted was unenforceable even on the groftt
vagueness. It is true that the expression ‘cattle fair’ was not getingd i 1
Act. The legislature when it did not furnish the d
expression ‘cattle fair’ must be deemed to have used th
ordinary signification, as meaning a periodical concour
sellers in a place generally for sale and purchase of cattle
occasions ordained by custom.”
India, [(1970) 2 SCC 780]8’. The Constitution Benc

vagueness to be a ground of declaring a provision t
the following terms:
40. It would appear from this that ship of films, their
classification according to age grout iS e suitability for
d unrestricted exhibition with or with Kel
exercise of power in the interests of ; orality, deceéfic
not to be construed as necessarily oft ditig.: he freedom ¢
expression. This has, however, ° “tia
the parens patriae or as gud

have to concede, that th
interests of the coft l 46 ii @résts which cannot be

ignored. A balarite Stween the rival claims by
reconciling thet ommunity require the
formulation of al dishonesty, corruption,
gambling, vicé 1 tendency and things which
servation of public order and
3-206 al pp. 121-23 of Compilation of Judgments, Vol. II


regulations venture into something which goes beyond this legitimate

opening to restrictions, they can be questioned on the ground tha
legitimate power is being abused. We hold, therefore, that censors
films including prior restraint is justified under our Constitution.
42. This brings us to the next questions: how far car
restrictions go? and how are they to be imposed? - This lea
"
competent to grant certificates under the Act in sanctrénétig filins for
public exhibition.
43. The first question raised before us is that the legislat e has not
indicated any guidance to the Central Government, B. do not think that
this is a fair reading of the section as a whole. Thé,first’ ‘gub- section states
the principles and read with the second clause of : nieteenth article it
is quite clearly indicated that the copies of fil fr content should
not offend certain matters there set down.
dealing with the problem of censorship
principles and ney will be the ate
se and
i cannot for a
locomotion. Of course, ev
not necessary to do soy
: e are there for
consideration in Ute li “a aranteg ‘fr and if they offend
substantially ag : as ruck down. But as they
stand they canno at any recondite theory
of law-makin, separation of powers is
m that Section 5-B(2) cannot
: e exercise of creative venius in the

tgstion before us whether the ‘void for
_ Reliance in this connection is placed on
icipal Committee, Amritsa#,v. State of Punjab>8. In that case a Division
&
Bench of this Court lays down that an Indian Act cannot be declared invalid

J., speaking for the Division Bench, observes:

. the rule that an Act ofa competent legislature maybe “Sarugh,
down” by the courts on the ground of vagueness is alien
competent to enact legislation in respect of “fairs”, vide En

List II of the VIlth Schedule to the Constitution. Agile
fundamental rights guaranteed in Part TI of the we

inconsistent with any constitutional provision, but no
that it is vague.’
The learned Judge refers to the practice of the S
United States in Connally v. General Construé
observed:
‘A statute which cither forbids or requ
must necessarily
guess .at its meaning and differ as tei ts § ation violates the first
essential of duc process of law,
qd The learned Judge observes in relati
‘But the rule enunciated
an essential of the “due process “Sh

Constitution by the 5th and 14th 7 wondmente
have no authority to declare a statute invalid - ground. that it
don, the test of
Parliament or the St
Relying on the observ
Madras® to the eHecl
J explained. While it is true that the

e C@urt of the United States of America
I
322 : 269 US 385 (1926)

950 SC 27 : 1950 SCR 88

considered. A very pertinent example is to be found in State of M.P. v.

Baldeo Prasad"' where the Central Provinces and Berar Goondas
the construction sought to be placed on it, must be mee

the intention of the legislature. Thus, if the law is op
construction, that construction which accords best with the?
the legislature and advances the purpose of legislation, is to bé preferred.
Where however the law admits of no such const
dily arises
indivi
sn
line of demarcation where possible
made and only in
1 the clearest of cages
Bench ‘by this Hon’ ble Court in A.K. Roy 4

271)*7.
“61. In making these © us to have
overstated their case by a . It is true that
the vagueness and the
uncertainty ofa ptnit we | :

be deprived of hig like y a ‘law whichiis n bulous and
a uncertain in its
definition and apj fi But in considé ing he question whether the
expressions a ore
th oe other can be formulated of an

t th, “definition can _necessarily give

VIL Mr Tushar Mehta, Additional Solicitor General, for the Union of India (contd. )
contained in Section 8(3) of the Jammu and Kashmir Act, 1978

themselves depend upon the meaning of concepts like ‘overawe .
Government’. The formulation of definitions cannot be a panacea fo tha,
evil of vagueness and uncertainty. We do not, of course, suggest dahatéthe’
legislature should not attempt to define or at least to indicate the ct
of expressions, by the use of which people are sought to be de
their liberty. The impossibility of framing a definition with
the expressions used by the legislature. But the point ton is tpg there
are expressions which pherenty comprehend such an infin riety of
? | meaning,
can only succeed either in 1 robbing them of thei a)

making it necessary to frame further definitions 0
prejudicial to the ‘defence of India’, security. at! fidia’
State’, and ‘relations of India with foreign pew
nature which are difficult to encase withi
make those laws effective. That we c

the situation. An administrator aé ing
question as to whether certain Wess
apply if to life’ Ss practical r

possibility of error but ther
agded as a" fundament. i

spervading theme on LL Constitution since
s the
andhi¥. The
a person cannot be put in peril on

n of criminal law, the processes
quires the application of impossible

expected is that the language of the law
ring of the conduct which may fall within
_measured by common understanding. In
hatred or contempt’, or ‘maintenance of ‘harmony between different


religious groups’, or ‘likely to cause disharmony or ... hatred or ill will’,

or ‘annoyance to the public’ (see Sections 124-A, 153-A(1)(}), 1%
B(1)(c) and 268 of the Penal Code). These expressions, though théy af«
difficult to define, do not elude a just application to practical situations.’
The use of language carries with it the inconvenience ~
imperfections of language. Fa
63. We see that the concepts aforesaid, namely, ‘defegee of In
; “brecise definition,
courts must strive to give to those concepts a narrsiwer a ostruction than
¥s of preventive
he taken to restrict
well be
Wtignality of chi
those in Section 3, which are fra with’’grave c@nseduencés to qa
personal liberty, if construed liberally
51. Furthermore, expressions use

expressions which are alien to Indian system "of Law and. $F re in various
penal provisions under the India Penal Code as ¥ g, the Criminal e
Procedure Code. The details ¢ i _ tabular form are
reproduced hereunder:
Word : ae eg CrPC
fi. | Annoyance f 4
2. +: Inconvenience , 299, 384 f

3. | Danger "133, 137, 142, 144, 338
133
260, 348 9g
37, 125, 130, 133, 142, 144,

152, 174, 220 (Explanation)
330, 335, 338, 339, 357
366, 503, 506. 106, 108, 211 (Explanation)
* 260, 456
124-A, 153-A, 153-B, 505(2) A

52. It may be true that wherever penal provisions in IPC or CrPC use the a
@ above-referred expressions there are certain qualifications used by
legislature. However, there are some provisions where the expressiotis
used without any qualifications. In the said provisions the offence isgaugin
obstruction, annoyance or injury, etc. it is only the different medium ofim
through which il is caused is provided in different sections. The said
pb areas under:
Word IPC
fi. | Annoyance 182, 188, 209, 268, 294, 350, 44
2. : Danger 283, 285, 286, 287
3. | Obstruction 188
c 4. : Insult 441, 504
5. + Injury 44, 90, 166, 167, 182
268, 279, 280, 283
6. :} Criminal intimidation 503
7. : Enmity, hatred or ill will » 124-A
d 53. Further this Hon’ble Court has

has accepted that they are incapable of 4 isc definition, A ist ot the
said expressions is provided hereinbelow fo ‘eGnvenience of th
Court:
SL Judgment
e No. é
7. (2006) 4 SCC 558 at paras 56258
Naveen Kohli v. Neelu Kohli
2. , (2005) 8 SCC 35 Lat p

M.M. Malhotray. Uni
f 3 (2012) 4 SCC 40%.at fy “Misconduct”
Ravi Yashwant Bho ) : “Disgraceful Conduct”
4, | (2012)5 SCG i faras 15 “Fiduciary capacity”
Marcel Mak ins v. ri . Which was not defined in Section
4, Benami Transactions
(Prohibition) Act, 1988
“Terrorism”
which was not defined under
TADA
“Insanity”
“Lxceptional and extraordinary

circumstances”

8. (2012) 9 SCC 460 at para 16 “Inherent jurisdiction”, “to

Amit Kapoor v. Ramesh Chander prevent abuse of process” and “té
secure the ends of justice
appearing in IPC/CrP;
9. | (2010) 5 SCC 246 at paras 23-26 “Tnsurgency”
: Zameer Ahmed Latifur Rehman Sheikh v.
: State of Maharashtra
10. (2011) 11 SCC 347 at para 15
Ram Singh v. Central Bureau of Narcotics
Psychotropic Su
1985
di, : 2005) 6 SCC 1 at para 11
Jacob Mathew vy. State of Punjab
72, § (2003)5 SCC 315 at para 9
Rajni Kumar v. Suresh Kumar Malhotra
| 73. ¢ (2004) 3 SCC 297 at paras 21-25
National Insurance Co. Lid. v. Swaran
Singh
14, | (1962) 3 SCR 49
Corpn. of Calcutta v. Padma Debi
15. | (2003) 7 SCC 389, para 8 %
: State of M.P. v. Kedia Leather & LiquoF¥
Ltd.
16. | (2004) 12 SCC 770 at para 89
| Commr. of Police v. Acharya é
| Jagadishwarananda Avadhut
17. } (2003) 9 SCC 193
State v. Kulwant S ingh
“Secular”
“Caste”
‘Untouchability’
“Choultries”
“Error of law and error of fact”

and “Error of law apparent on the
face of the record”

24. : (1962) 2 SCR 24 “Attempt to commit an offence”

Abhayanand Mishra v. State of Bihar
25. (1951) 2 SCR 1125 “Shebait”
» Angurbala Mullick v. Debabrata Mullick
26. | (1982) 3 SCC 235
People’s Union for Democratic Rights v.
Union of India
54. Furthermore, in a catena of judgment this Hon’ ble Cc

expression “public interest” like “public purpose”, not
any precise definition.
discretion of the court dependingan

case.
arsed that by applying the test referred to

ie said judgments Le. “relevant community standard test”, the words

“grossly offensive” appearing in Section 66-A would also have to be held as

vague and overly broad and hence liable to be struck down. i zi
60. It is respectfully submitted that reliance on the said judgments we ti

the validity of the Section 66-A is completely misplaced.
61. It is submitted that Section 223(d) of CDA and Section 231(q
in pith and substance the said sections covered only

“obscenily” and accordingly the relevant “community st&
“Millers Test’*” which governs that limited field in US was ap
62. However, as opposed to the context of the said judgmeig Section
66-A not only places restriction on mere obscene mateg rat, but also placesa o¢
restriction on other “information”? in the interests’ « helsovereignty and
integrity of India, in the interest of the security of the ‘State, in the interest of
the friendly relations with foreign States,
$ in the jfitére
63. Thus, in view thereof, it is respectful mi fed that the aBucness

ed olé d
(ii) Content-based
(iii) Prior restraint!
Civ) Forum dactri
f
g
nutandis applied in Indian social
creating, distributing and recciving

67. It is submitted that in one of the first landmark judgments rendered

by the US Supreme Court in Roth’, it was held that generally obscenity vias
not a protected speech under the First Amendment. However, it carved#ou
distinction between obscenity and sex, to hold that only such gex
explicit (obscene) material which deals with sex in a manner appea
prurient interest was not protected under the First Amendment.
portrayal of sex, in art, literature and scientific works, was i
protected freedom of speech and press. The relevant pagiis
judgment are quoted hereinbelow for ready reference of this#
finction to propose regulatory

their concrete legislative efforts.
representations or descriptions of ultimate

rverted, actual or simulated.
¥ United States, 354 US 476 (1957) — (Pp. 13-41 Vol. IV of compilation)

4 of Vol. IV of Compilation
-89 Vol. IV of Compilation

(b) Patently offensive representations or descriptions of

masturbation, excretory functions, and lewd exhibition of 4
genitals.’ (P. 78)
70. The USS Supreme Court further held that:
Supreme Court refused to lay down any *

precisely what appeals to the d
offensive and held as under:
community, but this docs not mean es

fixed,
‘prurient interest’ or is” e
questions of fact, and our n
Court to reasonably expect tt
taw on the standards of their

ructions on the law. To require
State law would nol! ‘gel the proteciion of the First Amendment. h
in contrast there is complete prohibition in producing, distribution

is completely banned. As such the “relevant community standard” applicable

in US cannot be at all made applicable in the Indian social context.
73. Turthermore, experience shows that even the distinction carvéd
by the US Supreme Court in Miller v. California (supra), betwi
unprotected hard coreseer ee and Protected expression of 3 SeX,
expression of sex, having serious literary, artistic, politi

value, the annexed sub-categories of sexual expression is legal!
were less restrictive means ie. filtering “ilaBle to the Gpv tnment
through which access of pornographic children c&n bé estrigted;
that filtering system was more effectiye th
of vagueness challenge was thal this
in'power has been

lanket ban on the
character’’ in the nadie é é

the test laid down . Tea mitted that this Hon’ble
urétef a nude/see niide{woman, as such, cannot per se

ie tendéiicy to arouse feeling orr revealing
51 US 844 (1997) Reno, Attorney ¢ neral of United States v. AUCL, pp. 114-168 of Vol. IV of
Compilation
[52 542 US 656 Ashcroft v. American Civil Liberties Union (pp. 169-204 of Vol. IV of Compilation)
d 181 ACLU v. Mukasey (pp. 205-230 of Vol. IV of Compilation)
;2 73-286 Vol. IV of Compilation — paras 13 to 26, para 23 at p. 284 of compilation)

which the nude/semi-nude woman is depicted. Only those sex-related

materials which have a tendency of ‘exciting lustful thoughts’ can be eld.
to be obscene, but the obscenity has to be judged from the point offvi
of an average person, by applying contemporary community standards
Applicability of “Strict Scrutiny Test’ to adjudge the vires of Sectio
of the ITAct
and have contended that Section 66-A is ultra vires as it fail

said test.
rendered by this Hon’ ble Court has held as under?

“80. It is commonly believed amongs
strict scrutiny test in view of the C
Court in Ashoka Kumar Thakur (sup
‘36. The strict scrutiny tes tiny test

applicable in the United States of Ainerica as arvt Shri Salve
courts. In any event, s

legislation ex facie is fo #Sugh a test may also
t& the life and liberty
ee its inception apart
found to be ex facie
4ne that constitutionality
Lop pion, one of Use eB a, J., stated, thus:

ADe. Me Nariman conteredefed t laProvision for reservation being a
gislation, the str ict seitiny test should be applied. Even
dpplying” uch a test, t
apply the strict scruliny lesg in the case of reservation evidently having
regiird to clauses (1) and (4y of Articles 15 and 16 of the Constitution of

out an ex facie unreasonableness and therefore the Court did not employ
the strict scrutiny test.
82. The Constitution Bench in Ashoka Kumar Thakur (supra),’
held:
“252. It has been rightly contended by Mr Vahanvati :
opal Subramanium that there is a conceptual difference ;
Thakur (supra) solely relies upon Saurabh $ to clarify the

applicability of strict scrutiny and does not n independent
that in respect
of the statute or action cannot bet 1a

4. Where a statute or
e discrimination. i
5. Where a statute $
citizen under Article |
(6) of Article 19 a ds i in those cases, it
would be for the Si ness thereof.
which is proé q the Constitution of India or

otherwise infr
or ‘confiscatory’ in nature.
lo interfere with sovereignty
sctine Section 66-A and thatt@® other least

advance the said interest. The only ground
n this context, it is respectfully submitted that in view of the


VII. Mr Tushar Mehta, Additional Solicitor General, for the Union of India (contd.) |
arrangement of words “expressed as rules” bul an arrangement of words

“expressed as principles or standards’°*, hence requires purpos!
interpretation, it is submitted that Section 66-A is narrowly tailoreé avith,
hence intra vires the Constitution of India.
81. In case if there is any further ambiguity found in the lang
Section 66-A, it is respectfully submitted that by applying the principfe oO
res magis valeat quam pereat’, this Hon’ble Court can narr me Db
language of Section 66-A by reading into the test referre by
judgments contained in Compilation of Judgments Vol. 1 an
statute workable. The said tests are summarised as under:
(@) Information which would appear highly abusi
pejorative, offensive by reasonable person in _2engra
standards of an open and just mulli-casle, m c
society.
Director of Public Prosecutions v. Collin
paras 9 and 21 '
Connolly v. Director of Public Pre
276/(2007) 1 All ER 1012 ‘ d
House of Lords Select Committee “#4
on Communications titled as ae Medi
(iii) Information which e

the person or damage;>5
; f
propricty of violé i
religious refounis ar
. jeans to accomplish political,
(Whitney v. California, 274
A
ocial Media and Criminal Ollfences” al p. 268, Compilation of Judgments, Vol. 1, Part B

(a) Information which propagates hatred towards an individual or

a group, on the basis of race, religion, castcism, ethnicity. é
(b) Information which is intended to show the supremac
symbols, holy books or towards something whid

sacred or inviolable.
(vti7) Satirical or iconoclastic cartoons and caricatures
test laid down in Hustler Magazine, Inc. v. Falwell, -
feeling or revealing an overt sexual desiré

depraved mind and designed to excitesex
pictured ye ideal
2014) 4S8CC 257
ition Technology Act,

nshrined under Article
ither intend to nor can
a, the same will have to be read

of the Constitution.
ocial Media and Criminal Ollences” at p. 268, Compilation of Judgments, Vol. 1 Part B

the freedom of speech and expression, the Central Government does nol
defend that part of the provision.
Cyber crimes
85. The Act in the question deals with the cyber world
technology specific criminal offences committed in the cyber worl
have no physical form but have only virtual existence. Thi
86. On true construction, the penal provisions contain

necessarily deal with such cyber offences which has nothing to"
conslilulional rights. In fact the said penal provisi 3 8 sk lo protect the

rights of citizens of India guaranteed under Article 21g # Constitution as
would be clear from the following discussion.
87. The use of Pe is
damage an individual but also to dames :

system of an individual citizen and can potentially,
techno-savvy offende ons are ‘made in other

countries, though Al he only legislation which
s lo protect the citizens:
2000 and amendments is
S Federal enactments;
"y Act, 2000 and amendments is

(ii) the computer or computer network itself is the target

of thé .,
crime. .
90. As explained hereunder, the scheme contained in Chapter XI Of t Be
Information Technology Act, 2000 deals with cyber crimes in thé betpw
mentioned three broad categories:
(i) Crime against the nation — cyber terrorism, ctc.
property theft, etc.

Analysis of Chapter XI
c 91. The following analysis of various provisions. contained in Chapter XI
of the Act requires to be considered so as to derive ealilegislative intent
Section 65 of the
tenally or
d r source
t computer
tequired t& kept or
shall be. ae fe with
imprisonment up to three years, or wit fine which maygex
lakh rupees, or with both.
e Explanation.—For the PUrpas
means the listing of programs
program analysis of compute
The said section, for its pro
form.
92. To understand th fe said penal offence,
ource cord” since any
concealment, destructi Fall i in. i x source code” is made a
penal offence. Togitit , it is necessary to
understand the t¢ , upon which the definition of
“computer seurc
(a) Machine languages,

(b) Assembly languiiges, and
(c) High-level languages.

Machine language Assembly language High-level language

First generation language | Second general language Third/Fourth/Fifty
generation language “
Difficult to Easier to understand. Much easidk
understand. English-like abbreviations | understand.
It is a machine code replacing strings of Os and Language’s syntax,
consisting entirely of the | 1s, creating source files closer to human la
Os and Is of the binary ae
number system. as
The only language that a | Needs translator programs Needs triigsl Or prggrams
computer understands. called assemblers (or = called sseimblen¥"” (or
compilers) to translate | compilers) translate
source files (or commands) | source (or
into machine language. of ands) into machine c
The programming, thus, is a complex proce, ding blocks of

information systems. It involves five steps, log rea jntividual programs:
(a) Needs analysis,
(b) Systems design, d
(c) Development,
(d) Implementation, and #
(e) Maintenance
These five steps represent ‘life cycle
identification and understanding, e
It is followed by the desi
solving the proposed problé
and message pipes ane!
involves wriling the 1
well as testing {hose
time- -consuming f
code, compiling, ¢
successfully wat
g
héttier written in machine language,
cilanguage is known as the source code.”
rm “computer programming”, the statutory
de” as envisaged in Section 65 requires to
ned which makes it comprehensive as it includes the listing of h
Ss, computer commands, design and layout and programme analysis
wiputer resource in any form. The term “computer source code”

defined in the Act incorporates the entire gamut of programming process. It

includes computer commands/programming codes (machine, assembly 4
high-level), design prototypes, flow charts/diagrams, _ teclynigal.,
documentation, design and layout of the necessary hardware, progranilesth 2
details etc. Furthermore, it is important to know that the Act ma
mention whether the source code exists in tangible (on paper) or 1
(electrical impulses) form. The Act accepts the computer source’
tangible and intangible form. Importantly, by virtue of the
code” as well.
the relevant “computer source code”.

95. To give an extreme example, if anyone wan
warfare, he will have to understand the “compte ee code” of the
computer system of “critical information ingfrast
eh,}
“amending/altering
of which would produce catastrophic re ult : pues:
gq systems, etc. are critical infrastructure sy
96. Similarly, the
t term‘‘computer progr
2@)],*
would be crucial to examine

Government that Section Of
annoyance”, “causing, incg?
deal with such cyber “rime
expression of any o
tion 43, he shall be punishable

tend to three years or with fine
“shall have the meaning assigned to it in

ode (45 of 1860).
Section 66 necessarily penalises the civil contraventions

ntempilated under Section 43 of the Act.

100. Section 66-A reads as under:

“66-A. Punishment for sending offensive messages
communication service, etc.—Any person who sends,
computer resource or a communication device,—
causing annoyance or inconvenience or to deceive or té#si¥slead the

addressee or recipient about the origin of such messages,
shall be punishable with imprisonment for a term*
years and with fine.
Explanation.— For the purpose of this section,
“electronic mail message’ mean a message,
st m, computer. resource
xi, images, apidis, video
and any other electronic record, ay Be transilled with, the
message.”
101. On a proper interpretation"%
(ii) the medium o

(bya communicatign dk
and techniques used, the

ese provisions, however, can
I or “electronic mail message” as

sand (c). The entire case of the petitioner
thetical examples of some “posts” made by
Twitter or other social media sites and an
i is made to link suth posts with terms like “annoyance”,
icnce”’, etc. as used in Scction 66-A.

104. As a matter of fact, while dealing with cyber crimes and while ,
considering the validity of a legislation concerning cyber crimes, 4
traditional doctrines of interpretation and conventional jurisprudence méy 1
render much assistance as each word has a different connotation and 1m. an
in the context of cyber crimes.
105. As explained above, under Sections 66-A(a) and (P) oO
sending “information” is an offence. The term “information”
connotation in the context of cyber crimes and is defined uné
of the Act which reads as under:
“2. (v) ‘information’ includes dala, text, images, souni fs
computer programs, software and databases or micro filnié
generated micro fiche;”
106. The information may include message, “4
essentially includes, in the parlance of cyber crimes
programs, (3) software and databases,
generated micro fiche.
different connotation in the parlance of

under Section 2(0) of the Act which reads
has been processed ina computer system" computer ff

in any form (including computer printouts, magnetic
media, punched cards, punched tajes) or stored inter
the computer.”
108. In the above conte
source” [as defined under
device” [as defined “und
“information” [as dé
“data” as defined und
technology specifi uld be attracted which has
no co- -relationn Wi ; ech and expression so far as
> or “causing obstruction”, etc.
“broviding for each category ofcyber

ht to take into account all cyber crimes
t. tion with the citizens’ right under Article
(1)(a) of the Constitution of India since they are technology specific
and the target of the crinie can either be an individual, or a computer
an individual, a particular section of people or in gross cases, the

his freedom of speech ane expression, he causes “annoy

“inconvenience”, “danger”or “obstruction” while sending anything,
of computer resource or communication device, it will not be ap
either under Section 66-A(P) or 66-A(c) of the Act.
Analysis of Section 66-A and its applicability
111. To appreciate the legislative intent behind use of é¢
“annoyance”, “inconvenience”, “danger”, “obstruction” and “ “nye
clause (c) of Section 66-A, the following types of cs es are required c

to be briefly kept in mind. The illustration given* nder are only
illustrative and cyber crimes take many forms othe eth: rated below:
(a) Phishing— In phishing, the cringina
provider or instilulion, etc. and send:
requesting for updating records su d
* it is
akes a phone e
: other authority,
who will feel duty-
etdils, password, bank
to commit financial
ons of dollars/rupees are lost

ver by these using vishing
Hates
Q a crime where a person on the g
ckers and crackers commit offences of
te
2{d) Spamming— Sending unsolicited information, mainly through

ails and flooding the recipient’s mail box for committing various p,
off “ices and also for sending some contaminated viruses.

b . . . . eos
continuously spy on the victim’s activities, etc.
112. The following basic viruses are found in voguc thot
criminals.
c 113. Types of viruses in vogue:
() Melisa Virus —This virus can be circulatedthro
when accessed, would lead to mailing the first,
recipient’s Microsoft outlook address baok
be infected with the virus.
d The ultimate goal/offence/etfect
sent through this virus. All major cai
and Lucent technologies were seyerall
Tey software disabler Trojan, ele. A

g * and unauthorisedly activate its
"to a system and click/record the
iom OF record personal and confidential
iv) Logic Bomb: Logic Bomb is a programme which remains

ve till the time some part of the programme is activated by the

Illustrative cases which would fall within the statutory meaning of the .
terms “annoyance”, “inconvenience”’, “danger”, ‘obstruction’, “injury”*Am
cyber crime parlance under Section 66-A(b) and/or may fall under Séctid
66-A(e)
114. In a recent true case one person created a fake email
showing his user name as “DSOI Delhi’. “DSOT’ stands for
Service Officers Institute’. It is a club whose members are senior: efe
mails to all members of the Club repeatedly which required

download one application (mobile app). The mail ID is create :
but the mails are sent from a US-based server. Since the map
investigation, further details are not mentioned.
epending upon
is the effect of
such “information” being sent either upon the vies ich ual or upon his
computer/computer system, it can be decided,whg ffence would fall
either within the meaning of “annoyance%,
“obstruction’’, etc. as used in Section 66-Ax4
116. In another case the accused,
“<hijoa@tele2.se>” as his email TD.“he
be “Microsoft Account Team’’. He sett
socicly. A message contained in the said
unaware recipients that it has come om ‘Microsoft’
intimidation” contained therei

“clicking’’, the recipients’
When a recipient clicks a
both under Sections 6 :

117. See e i sae via, the name of Reserve Bank of
Sarl ye unaware net user that it has
1.avould click * ‘update here’” , the

monitor the information residing in the computer systems of th

officers of MEA, India.
residing in
i his computer system gets encrypted. §Such impor
unusable trash for the victim. The recipient would thereafter’
mail demanding huge money to decrypt the data and permit t
access the dala residing in his computer. This would fall Both under
c “obstruction” and “criminal intimidation” as conté under Section
66-A(b) and if the ransom is not paid, the victim’ data would be
destroyed and would cause “damage” as contem d@ under Section
66-A(b). i
internet users and/or their computer/compt

expression used in
i penal provisions cgace
‘ s falling which
e the law cannot keep pace with eye i iqués, ’ expanding
criminal using“ ;
“sound” cannot beinri i i fuse either cannoyanee™ 0or
feature of auto-generated
computer which would jam
4 annoyance but tremendous
‘to use his ‘ ‘computer’ due to the
g jammingt of the
“inform ation”.,
to the expressions “inconvenience” or “annoyance” in a casual


either under Section 482 or Article 226. The same, however, would not bi
ground for declaring the provisions to be unconstitutional if they
otherwise found to be constitutional.
124. The terms “inconvenience” and “annoyance” in the context
crime would also take a different meaning than their conventiogal [i
“annoyance” and “inconvenience”’.

125. At the first glance, the demarcating line between the cm Wisions of
Sections 66-A(H) and (c), apparently, may appear tobe
main distinction is that Section 66-A(b) applies to a °
a wider term as defined under Section 2(v), while Ségtion;66- At) applies
only to emails. The penal provisions are bifurcatgé*
to ensure that cach and every future contingeacy
every giewly invented cyber crime, the citizen
d
two different penal provisions. However, on it Gan be easily

shown that they provide for difféint contingencies." in an offence e
under Section 66-A(c), it is not
cheated but under Section 60-
_D'i§ the outcome of that beginning.

ion 420 IPC which reads as under:

128. To give a very basic illustration, it may be pointed out that one
accused has created a fake website i.c. “delhijalboard.in” in which he fas
created a “payment gateway” to accept water utility payments by residefits
Delhi. If the recipient makes the payment, the ingredients of “cheat
would be found and the offence would be both under Sections 66-A
66-D. :
129. Under Section 66-D, the words used are
impersonation” which necessarily imply impersonating an ig
other hand, Section 66-A(c) is worded in such a way that it
the origin which may be from an institution or an individual.
medium used. While Section 66-A(c) is confined only tg@:emails as a mode of

communication, Section 66-D takes within its sve a) other modes also,
namely, use of “computer resource” for an act of ched ry) impersonation.
The term “computer resource” is defined under Seéti é) which reads as
under: fg
“2. (k) ‘computer resource’ means} c
computer network, data, computer dataljase
profiles of prospective brides andi.groqgms.

impersonated profile in the said computée
Section 66-D and not under Section “6@A(c).
impersonation is not an email but cgmputer database.
behalf of the
96 of 2014
Act, 2011 (hereinafter:

(d) of Section 118.3
Schedule VII, being matters‘yelating to “public order” and “police’”’.

IT) The contention of the alleged incompetence of the legislature to
the said statute is against established principles of examining the
slation in its pith and substance.

VIII Mr P.S. Narasimha, Senior Advocate, for the State of Kerala (contd.)
UID) The Act is relatable to Entries 1, 2 and 64 of Schedule VII and

as such there is no question of repugnancy as the same would arise o
in context of State and Central legislations arising out of the same Extr
of the Concurrent List alone.
Re: Submission I
Chapter I of the Act deals with the duties and function

Chapter III deals with police stations and their establishme
deals with the general structure of the police force; Chapter
duties and responsibilities of a police officer; Chapter.
: 3 . . oe c
regulations; Chapter VII deals with service conditt
with offences and punishments.
commission of offences.
technology, crimes can
communication devices.
ion 11&(d) has been
f
Hon’ble Court that the

otation. (See Supt, Central
33; Romesh Thappar v. State
. State of Delhi, ATR 1950 SC
) and (e) to @) deal with offences
ch circumstances, it is submitted g
jusdem generis with the other sub-
3 nnoyance” in clause (d) must assume
bring the matter within interests of public

VIII Mr PS. Narasimha, Senior Advocate, for the State of Kerala (contd. )
7. Viewing the enactment as a whole, it can be seen that the main purposé
a . : : .
of the Act is to provide for the sctling up of a police force to protect
preserve, inter alia, public order, which is traceable to Schedule VII Ei
Entries 1 and 2.
Re: Submission IT
courts ought to, it is submitted, determine the true purport of

and examine the statute as a whole. According to this Hon’ble
c. Krishna v. State of Madras, 1957 SCR 399:
quesion lo view such ;a slalule nol a :

6 collection of sections, then disintegrate it into partsg
heads of legislation those pa¥ts ould severally fal
determine what portions thé ires,
p. 410)
9, Furthermore, ingX.
f [| not merely the form or

‘ust be noted that the said

VIII Mr P.S. Narasimha, Senior Advocate, for the State of Kerala (contd.)
of another legislature. As observed by this Hon’ble Court in State of Bombay

v. Narottamdas Jethabhai, 1951 SCR 51:
“The doctrine saves this incidental encroachment if only the law i
pith and substance within the legislativefield of the particular Legi
which made it.” (At p. 125)
on a permitted field then any incidental enc Ment, even on a
d
the realms of List I, after examining the
Act (which is impermissible in law)
encroachment cannot affect the _validligy
é Ambit of either List I

rgument on behalf of the ¢
i wddctrine would apply only if both

Plantation (P) Ltd. v. State of
SITREYA SINGIIAL v. UNION OF INDIA (Nariman, J.) 125
The Judgment of the Court was delivered by

ROHINTON FALI NARIMAN, J.— This batch of writ petitionsfiled unde¥
@ Article 32 of the Constitution of India raises very important and far-reachi
questions relatable primarily to the fundamental right of free speech, al
expression guaranteed by Article 19(1)(a) of the Constitution of India.
immediate cause for concern in these petitions is Section 66- AY
Information Technology Act of 2000. This section was not in the
is set out hereinbelow:

“66-A. Punishment for sending offensive
communication service, ete.—Any person who sends,
computer resource or a communication device—
c (a) any information that is grossly off
character; or
d (c) any electronic mail or elect}

causing annoyance or inconvenictij
addresscce or recipicnt about theori
shall be punishable with imprisonme!
years and with fine.
enieans a message or
transmitted or received on a mpu r, computer §
or communication devi ice inccluding ttachments J
U.K. Post Office

any message
oS b
SCC Onli ne Web Edition, © 2022 EBC Publishing Pvt. Ltd.
SCC Onli ne Web Edition: http:/Avww.scconline.com

2. A related challenge is also made to Section 69-A introduced by the
sam e 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 Centt
Government or any of its officcrs specially authorised by it in this beha
satisficd that it is necessary or cxpedicnt so to do, in the intérest
friendly relations with foreign States or public order or for pr¢*

incitement to the commission of any cognizable offence relatigig to! rabo
may subject to the provisions of sub-section (2), for rcasong:tc ‘
in writing, by order, dircct any agency of the Government
block for access by the public or cause to be blocked for ac
any information generated, transmitted, received, stored °
computer resource.
(2) The procedure and safeguards subject to ee such blocking for
access by the public may be carried out, shall be s ay be prescribed.
(3) The intermediary who fails to comply with th
sub-section (1) shall be punished with an impri
(Footmote 1 contd.)
a se
This scction in “the British
@communication
ba “follows:
(dons network.—(1) A
munications network a
rt of an indecent, obscene
e so sent.
intgn vert nce or needle; % nxgetye o another, he—

| by means of a public éetronic communications network, a
ssage pat ‘he knows to be false,
a fige not exceeding lev el 5 on’ ‘the standard scale, or to both.

£4) Sub-sections (1) and @ ) do hot apply to anything done in the course of
form, video voyeurism and breach of confidentiality and leakage of data by

intermediary, e-commerce frauds like personalion commonly known ag,
phishing, identity theft and offensive messages through communication
services. So, penal provisions are required to be included in the Information,
Technology Act, the Penal Code, the Indian Evidence Act and the C@de
Criminal Procedure to prevent such crimes.”
hereinafter) are good enough to deal with all these crimes.

5. The petitioners’ various counsel raised a large num
i géiiienience, danger,
, hated or ill will are
clearly on which side of the line ‘they

authorities to be asS arbitrary and was
form of censorship which impais

In addition, the said section hag
and expression, Also, the ri
The petitioners also

contend that their ie breached inasmuch as
ther e is no intelligi o use the internet and
those who by words: diums of communication.
medium of communication
with the legislative process only when aa

: ghts conferred on the citizen under Part II
resumption in favour of the constitutionality
determining validity. Mere possibility of abuse of a provision cannot be a

ground to declare a provision invalid. Loose language may have been used if
Section 66-A 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
declare a statute unconstitutional if the statute is otherwise legislati M
competent and non-arbitrary. He cited a large number of judgments
both from this Court and from overseas to buttress his submissions.
Freedom of speech and expression
7. Article 19(1)(a) of the Constitution of India states as fat
“19. Protection of certain rights regarding freedon
(1) AU citizens shall have the right—
(a) to freedom of speech and expression;”
Article 19(2) states:
(2) Nothing in sub-clause (a) of clause (1) ski feet the operation of ¢
any existing law, or prevent the State from making Ly on insofar as such
freedom of speech and expressi¢

of the individual and from
government. For example,
Madras”, SCR at P-, 902,
f
nges in the composition of

aserved. In a separate concurring
g
the Ark of the Covenant of Democracy because public criticism is essential to

the working of its institutions.>
10. Equally, in S. Khushboo v. Kanniammal® this Court stated, in para:45
that the importance of freedom of speech and expression, though —
absolule, was necessary as we need to tolerate unpopular views. This
requires the free flow of opinions and ideas essential to sustain the c
life of the citizenry. While an informed citizenry is a precondi
ideas” concept that has permeated American law. This

felicitous words of Holmes, J. in his famous dissent in ADfe
States’, thus: (L Ed p. 1180)
. But when men have realised that time has
faiths, they may come to believe even more tht
12. Brandeis, J. in his famous ci

California®, said: (L Ed pp. 1105-06), ds
Government the deliberative forces vetog hs preva er the arbitrary.

They valued liberty both as apps hey believed uberty
to be the secret of happines
belicved that freedom to thi
them, discussion ©
dissemination of
merican Government. They

Wstitulions are subject. But they
through fear of punishment for
tk of the Covenant and carr by the Jews from place to place until it found its
final,sepose in the first temple
Hd 1095 : 274 US 357 (1927)

imagination; that fear breeds repression; that repression breeds hate; that
hate menaces stable Government; that the path of safety lies in thé
opportunity to discuss freely supposed grievances and proposed;
remedies; and that the fitting remedy for evil counsels is good o1tés
Believing in the power of reason as applied through public discussid
ney eschewed silence coerced by law—the > argument of force in if
guaranteed.
Fear of serious injury cannot alone justify suppressi
and assembly. Men feared witches and burnt women. It
speech to free men from the bondage of irrational (&
suppression of free speech there must be reasonable groun
serious evil will result of free speech is practiced. Theré must be
ed is imminent.
to be prevented
tends in some
e violation of it.
Expreggions of
af Of mind
-bretking
: owever
Was advocated, or that

cha uddvocacy | was then
contemplated.”
13. This leads usito 3% fussion of what s thesgontent of the «expression f
“freedom of speech a “rc athree concepts which are
fundamental in unde st basic of human rights.
‘ and the third is incitement.
Antony’s speech in Shakespeare’ s immortal classic Julius Caesar. Mark Antony

begins cautiously. Brutus is cliastised for calling Julius Caesar ambitious and is
yeatedly said to be an “honourable man”. Ile then shows the crowd Caesar’s p
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 t@.
affect the sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, etc. Why it is important to have these th
concepts in mind is because most of the arguments of both petitione## a
respondents tended to veer around the expression “public order’.
14. It is at this point that a word needs to be said about the
American judgments in the context of Article 19(1)(a). In virtual]
significant judgment of this Court, reference has been madeo judgmé:
from across the Atlantic. Is it safe to do so?
15. It is significant to notice first the differences bet S US first
Amendment and Article 19(1)(a@) read with Article 19(2). Thi important
difference is the absoluteness of the US First Amendment—
make no law which abridges the freedom of speech. Second, whe
First Amendment speaks of freedom of speech and of thezpress, without any
reference to “expression”, Article 19(1)(a) speaks m of speech and
expression without any reference to “the press” under the US
Constitution, speech may be abridged, whereags
reasonable restrictions may be imposed. Fougth,
restrictions have to be in the interest of eight
that is, any law seeking to impose a restriction: nd
only pass muster if it is proximately
matters set out in Article 192).
(Footnote 9 contd.)
“Antony—Good friends, sv
To such a sudden flood of £
They that have done tl
What private gricfs| y :
That made then" ‘do1
hi a i sweet Caesar , wouuitds, poor poor dumb mouths,

And bid" eae speak for but were I Brutus,
And Brutus Antony, therévere an Antony
ould ruffle up your spirit and put a tongue
n every wound of Caesar that should move
he stones of Rome to rise and mutiny.
All—We’ll mutiny.”
make no law abridging the freedom of speech. The approach of the Court
which is succinctly stated in one of the early US Supreme Court judgments;
continues even today. In Chaplinsky v. New Hampshire!®, Murphy, J. who
delivered the opinion of the Court put it thus: (L Ed p. 1035)
“Allowing the broadest scope to the language and purpos
Fourteenth Amendment, it is well understood that the right of fre
is not absolute at all mes and under all circumstances. There are,
well defined and narrowly limited classes of speech, the prevenfi
punishment of which have never been thought to raise an
exposition of ideas, and are of such slight social value as :a

ch tly outweighed by ec
the social interest in order and | morality. ‘Resor me epithets or personal
information or
nishment as a
criminal act would raise no question under ‘’ ‘instrument. Cantwell v.
Connecticut! US PP. 309, 310:S Ctp. JQ6* aie
d
Supreme Court has included “expression’
this Court has included “the press’’ a ebeil cof and
so that, as a matter of judicial interpreté i a protect
the freedom of speech and expression as well as press { _, Insofar as
abridgement and reasonable restrictions are concerned, j
Court and this Court have held 4 ¥ e
must be narrowly tailored or n
only what is absolutely neggss
subject-matters that there
compelling necessity t@ ac
law abridging frecdem
i f
merican judgments have great

of speech and expression and the
g
1031: 315 US 568 (1942) h

“As regards these decisions of the American Courts, it should be

borne in mind that though the First Amendment to the Constitution of thé
United State reading ‘Congress shall make no law ... abridging the
freedom of speech ... appears to confer no power on the Congress*t¢
impose any restriction on the exercise of the guaranteed right, still it
always been understood that the freedom guaranteed is subjectilo
police power—the scope of which however has not been define
precision or uniformly. It is on the basis of the police power tg abrit
freedom that the constitutional validity of laws penalising like
resolving the questions arising under Article 19(1)(a)

Constitution wherein the grounds on which limitations might
the guaranteed right are set out with definilenesszang
19. But when it comes to understanding the’
freedom of speech, in Indian Express Newspapers
pp. 324F-325A)
“ce
While examining the constitutional
contravene Article 1901 (a) of the C i
of America. But in order to incletitond

speech and expression and the neéé:
country, we may take them into constéi
19(1)(a) and of Article 191g) of our Constitution s
pattern of the First Amends oO> the American
almost absolute in its terms.
and Article 19(1)(g) ofthe, Ce
“f ih ‘to note that Section 2(v) of the

‘information’ as follows:
unless the context otherwise
‘information’ “includes data, message, text, images, sound,

voice, codes, computer“programmes, software and databases or micro
film or computer generatéd micro fiche.”
985) 1 SCC 641 : 1985 SCC (Tax) 121 : (1985) 2 SCR 287
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 cat
be. In fact, it refers only to the medium through which such information, is
disseminated. Tt is clear, therefore, that the petitioners are correct in gy
Information of all kinds is roped in—such information may have sé

literary or artistic value, it may refer to current events, it may be obs
seditious. That such information may cause annoyance or incopvenjen
some is how the offence is made out. It is clear that the right of he« Hers
annoying, inconvenient, ‘grossly offensive, etc., also shows that:

is made between mere discussion or advocacy of a particular|
which may be annoying or inconvenient or grossly offensive ti
incitement by which such words lead to an immine i
public disorder, security of State, etc. The petitioner
s the freedom of
speech and expression of the citizenry of Inds that such s eech or
expression is directly curbed by the creatiot
Section 66-A.
22. In this regard, the obseryatio
Communications Assn. v. Douds'™ are
claim to it. It is not the function of our Government eepithe citizen

from falling into error; it zn to keep the
Government from falling in 6 We could Jussify
ee “any censorship only
when the censors are better ; than i tHe censored.”
B. Article 19(2)
23. One challeng titioners’ counsel is
that the ottence crea roximate relation with
rticle 19(2). We may
at the said section can be
defamation, incilement to an
ginote the general public interest. In

this Court said: (SCR p. 863 : AIR
business but it is not open to the State to achieve this object by directly
and immediately curtailing any other freedom of thal cilizen 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. Thereforg, '
right of freedom of speech cannot be taken away with the objéc
placing restrictions on the business activities of a citizen. Fred
speech can be restricted only in the interests of the security of thy
Pp. 639-40, paras 12-14)

. We do not unders
stain its validity. The

learned Chief Jusgice: mcHon between an Act
which expresslyaan
on “between the Act and the

e Act.
public® ‘ender, it cannot | gsaid that the restriction is a reasonable

estriclion within the meaning of the said clause. . The decision, in our
view, lays down the correcttest. The limitation imposed i in the interests
of public order to be a reasonable restriction, should be one which has a
) 2 SCR 821 : AIR 1960 SC 633 : 1960 Cri LJ 1002

proximate connection or nexus with public order, but not one far-fetched,
hypothetical or problematical or too remote in the chain of ils relatiog
with the public order.
_ There is no proximate « or even foreseeable connection betwe
section. We cannot accept the argument of the learned Advocate ‘

that instigation of a single individual not to pay tax or ducs is
which may in the long run ignite a revolutionary movemegt destro
public order.” (emphasis stippli
Reasonable restrictions
26. This Court has laid down what “reasonable restric
several cases. In Chintaman Rao v. State of M.P."6 this Cout
p. 763 : AIR p. 119, para 7)
“The phrase ‘reasonable restriction’ cont
imposed on a person in enjoyment of the right s
public. The ‘word ‘reasonable’ implies intelli i

that is, the choice of a course which realso
quality.”
27. In State of Madras v. V.G. Ro
606-07 : AIR pp. 199-200, para 15
judicial review under claus

reasonable restriclions a
th the substantive and

trictive law should be
est of reasonableness, wherever

dividual statute impugned and no
“ot reasonableness can be laid down
jature of the right alleged to have been
and urgency of the evil sought to be remedied thereby, the disproportion

of the imposition, the prevailing conditions at the ime, should all entesg
into the judicial verdict. In evaluating such elusive factors and forming
their own conception of what is reasonable, in all the circumstances 6
given case, it is inevitable that the social philosophy and the s al
values of the Judges participating in the decision should f
important part, and the limit to their interference with legisfativ
judgment in such cases can only be dictated by their sens
responsibility and scelf-restraint and the sobering reflcet
have, i in authorising the imposition of the restrictions, consi

be reasonable.”
28. Similarly, in Mohd. Faruk v. State of MP), thi
p. 857,para 10 : SCR p. 161 E-G)
. The Court must in considering the valid
imposing a prohibition on the carrying on ©
fundamental rights of the citizens affecte

interest sought to be ensured in th
achieved, the necessity to restrict
pernicious nature of the act prohibite
harmful to the general public, thé:
imposing a less drastic restraint,
satisfy the administrative

restriction is made out,
io Bench also spoke of

reasonable restrictio b 1 ; ra@eedure. It said: (SCR
f the Court under clause (5). Similarly,

f the law provides the précedure under which the exercise of the right
may be restricted, the same‘§g also for the consideration of the Court, as it
“bO (196 : SCC 853: (1970) 1 SCR 156

53 SCR 519 : AIR 1950 SC 211: (1951) 52 Cri LJ 550
has to determine if the exercise of the right has been reasonably

restricted.”
mediums on “several grounds. To appreciate the width and scope :

submissions, we are setting out his written submission verbatim:
“@) The reach of print media is restricted to one State @¥ at
one country while internet has no boundarics and its reachgis glob’
(ii) The recipient of the free speech and expressioj usegfin a’print
media can only be literate persons while internet can accessed by
literate and illiterate both since one click is needed t wélload an
objectionable post or a video;
(ii) In case of televisions serials (except Hv Hews) and movies, C¢
there is a permitted pre-censorship which ensure ight ‘ef viewers nol to
receive any information which is dangerous to_ onformity with
the social interest. While in the case a of no such pre-
censorship is possible and each individua i
fig persons. While in

pon the privacy of any f
individual and_ th: i i i Bht tinder Article 21 of the
Constitution of, ;
ius like newspaper, magazine,
&
Hi to sexually harass someone,
E,” use ‘unacceptable filthy language and
world lead to serious social disorder. g
and/or will have to go to a theatre to watch a movie. For television also

one needs al 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 ¥
internet, can commit an offence at any place a at the time of his choice
maintaining his anonymity in almost all case
under the garb of anonymity which can be unveiled on

investigation.
specific ethical norms of self conduct. Each nev apelimagacine/movie

production house/TV channel will have its own i
being abused. As against thal use o

individualistic approach of each individua
under Article 19(1)(a).

(x?) In the era limited to pri
case of publication through airwaves freedom of
expression was less due to inheren , |. logistical
constraints. In the case of saidy,
individual to create and pubs
to trillions of people. Wh nteinet age the said
infrastructural and log; disappeared as any
individual using every tart mobile pften portable computer
device can create" d publish abusive eit 1 on its own, without
seeking help of ayo ‘ wal to trillions of people by
just one click.”
31. As stated a distinction between the
print and other Tae and the legislature may well,
therefore, s free speech over the internet
inything i in the features outlined, by the learned Additional Solicitor General

the Court’s scrutiny of the curbing of the content of free speech over
et. While it may be possible to narrowly draw a section creating a
ce, such as Section 69-A 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.
32. In fact, this aspect was considered in Ministry of Informatio
Broadcasting, Govt. of India v. Cricket Assn. of Bengal” in para 37,
the following question was posed: (SCC p. 208)
there is ‘any distinction between the freedom of the print media an

of the electronic media such as radio and television, and if go, weeth
necessitates more restrictions on the latter media.” b
This question was answered in para 78 thus: (SCC pp. 226-2!
“78. There is no doubt that since the airwaves/fr
public property and are also limited, they have to be uséq. i
interest of the society and this can be done either Py é a cent
c
oe
al is why the
f thie society
ferests of the society

freedom of speech and
expression and we
and the ese
as wide a section of the

th enables the right to be so
aid right. The wider range of
TruePrint ™ source: Supreme Court Cases, © 2022 Eastern Book Company.
further difficult to appreciate such contention on the part of the

Government in this country when they have a complete control over thé.
frequencies and the content of the programme to be telecast. They
control the sole agency of telecasting. They are also armed with *
provisions of Article 19(2) and the powers of pre-censorship undér
Cinematograph Act and Rules. The only limitation on the said ¢
therefore, the limitation of resources and the need to use them |
benefit of all. When, however, there are surplus or unlimited rés
and the public interests so demand or in any case di
a position to use it to subserve their own interest by maniptititing news

and views. That also Poses a danger to the 2h ont of speech and
© share the limited

frequencies with the central agency to ate, the
programming. But this phenomenon. ¢
Public order
33. In Article 19(2) (a Sub-head was
conspicuously absent. Because ( ade to an order
made under Section 7 of the:
uld not be justified as a

fate. While dealing with the
f'prevails amongst the members of

ternal regulations enforced by the
, 1949, was held to be
2 195 SCR 594 : AIR 1950 SC 124 : (1950) 51 Cri LJ 1514

53 SCR 605 : AIR 1950 SC 129 ; (1950) 51 Cri LJ 1525
35. As an aftermath of these judgments, the Constitution First

Amendment added the words “public order” to Article 19(2).
36. In Supt., Central Prison v. Ram Manohar Lohia‘>, this Court held
that public order is synonymous with public safety and tranquility; it is the
absence of disorder involving breaches of local significanc
contradistinction to national upheavals, such as revolution, civil stri
affecting the security of the State. This definition was further refined,
Manohar Lohia v. State of Bihar”, where this Court held: (SCR,p. 74
AIR pp. 758-59, para 52)
whole or even a specified |

distinguished from acts dire¢ C
the society to the extegi Spins a. gene
; ect disturbance d
ther the disturbance
amounts only to’ r instance, a man stabs
another. People mtg
communily keeps however much one may
“iwn where there is communal
heCommunity and incite them to make

aderder and to subvert the public order. An
agit of its own gravity. In its quality it may not
SCR 821 : AIR 1960 SC 633 : 1960 Cri LJ 1002

SCR 709 : AIR 1966 SC 740 : 1966 Cri LJ 608
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 thé
a 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 the
would be a case of breach of law and order “only. Take another casé QO
b assaulted. The activity of this man in its essential quality }

from the act of the other man but in its potentiality andi Ly
the public tranquillity there is a vast difference. The a
molests the girls in lonely places causes a disturbance in‘t ev eprtempo
of living which is the first requirement of public order. Hi ist ‘irbs the
society and the community. His act makes all the women appfghensive of
c their honour and he can be said lo be causing oe rBatiyce of public order
h may be taken note
therefore that the
"law and order or
has acted in a manner likely to cause a digtuebariéezof the public order is
a question of degree and the extent of ‘t f the actztgpon the
society. The French distinguish laws oe 5
corfimunity or
sof peace which
fer on the one hand and

n of degree of the harm
mmunity so as to amount to a
it affect merely an individual
144 SUPREME COURT CASES (2015) 58CC

individual leaving the tranquility of society undisturbed? Going by this test, it
is clear that Section 66-A is intended to punish any person who uses thé,
internet to disseminate any information that falls within the sub-clauses, of
Section 66-A. It will be immediately noticed that the recipient of the writtés
origin of a particular message. ) It is clear, therefore, that the informal

is disseminated may be to one individual or several individua
ig anybody lo do ¢
E have the tendency of
such circumstati :
present danger th# “wi i e substantive evils that
‘United States’, this time in a

anger. However, in most of the
ourt, the test has been understood
*. The test of “clear and present g
5 63L kd 470: 249 US 47 (1919)

(26 221 Us 418 : 31 S$ Ct 492 : 55 L Ed 797: 34 LRA (NS) 874 (1911) A
616: 63L Ed 1173 (1919)
Ed 1131 : 337 US 1 (1949)
Brandenburg v. Ohio?®, L Ed 2d at pp. 434-35 & 436, Virginia v. Black,

L Ed 2d at pp. 551, 552 and 553°.
41. We have echoes of it in our law as well S. Rangarajan v. P. Jagjivan &. ,
sa)
Ram>!, SCC at para 45: (SCC pp. 595-96)

“45. The problem of defining the area of freedom of expression \
it appears to conflict with the various social interests enumerated
Article 19(2) may briefly be touched upon here. There does indeget:
to be a compromise between the interest of freedom of expresifion
special interests. But we cannot simply balance the tw ragtnteretts a
allowing the Freedom are pressing and the commutit

endangered. The anticipated danger should not be remote, ¢
far-fetched. It should have proximate and direct, nexus with the
expression. The expression of thought should bg, if sically dangerous
to the public interest. In other words, the ‘pression should be
ikethe equivalent of
a ‘spark in a power keg’?
42. This Court has used the expression
Thus, in State of Bihar v. Shailabala Devi>?, %
said that an article, in order to be banr
persons to acts of violence (SCR at pp.
a
28 23 L Ed 2d 430 : 395 US 444 (1969)

29 155 L Ed 2d 535 : 538 US 343 (2003)
30 In its present form the clear and
that:
vhere the speaker means to

to commit an act of unlawful
violenceto a particukr
aker neéd not actualt cb
tre threats protects individuals from the fear of violence and
ior that feaj fegnser dars addition to protecting people from the
. occur. Intimidation in the
gf See Virginia v. Black, 15% L Ed 2d 535 : 538 US 343 (2003) and Watts v.
ited States, 22 L Ed 2d 664 at p. 667 : 394 US 705 (1969)]
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 thé
mind of a reasonable reader (SCR at pp. 664-65).
43. In Ramji Lal Modi v. State of U.P.3, SCR at p. 867, this Court uph
Section 295-A of the Penal Code only because it was read down to r
aggravated forms of insults to religion must have a tendency to disru
order. Similarly, in Kedar Nath Singh v. State of Bihar**+, Section 1
the Penal Code, 1860 was upheld by construing it narrowly and stating
the offence would only be complete if the words complaiy sd of-have
under Article 19(1)(a). Again, in Ramesh Yeshwant Prabhoo

Kashinath Kunte>>, Section 123(3-A) of the Representation of the
aout in the section ¢
thelivise.
POL his family or other
to make an imputation
tion of persons as such.
form of an alternative or
a .—No imputafionn ig,'Safd to harm a person’s reputation,

unless that epution directly i ectly, in the estimation of others,
avacter of that person, or lowers the g
is caste or of his calling, or lowers the
46. It will be noticed that for something to be defamatory, injury to

reputation is a basic ingredient. Section 66-A 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. [tas
clear, therefore, that the section is not aimed at defamatory statements at*al
Incitement to an offence
47. Equally, Section 66-A has no proximate connection with in
to commit an offence. Firstly, the information disseminated over thezi
need not be information which “incites” anybody at all. Wrig ‘n words mipy
be sent that may be purely in
i the realm of “discussion” :
“particular pom of vicw” Further, the mere _ causing
themselves. For these reasons, Section 66-A. |

“incitement to an offence’. As Section 66-A severely & ilsinformation that
may be sent on the internet based on whetheg,,jt ossly offensive,
annoying, inconvenient, etc. and being unreldte
subject-matters under Article 19(2) must ef all foul of Article
19(1)\(a), and not being saved under Aftic is deéfatcd as
unconstitutional. : ah
i,
Decency or morality
States and said that a

Z rage person applying
conlemporary commult
as a whole appeals to 4
Hicklin, (1868) LR 3 OB 360

SCC 433
) 4 SCC 257 : (2014) 2 SCC (Cri) 291
50. What has been said with regard to public order and incitement to an
offence equally applies here. Section 66-A cannot possibly be said to creaté
an offence which falls within the expression “decency” or “morality” in that
what may be grossly offensive or annoying under the section need not*bé
obscene at all—in fact the word “obscene” is conspicuous by its absetice
Section 66-A.
51. However, the learned Additional Solicitor General asked us,
into Section 66-A each of the subject-matters contained in Article
exercise is not possible for the simple reason that whet

intended to do so, it provided for some of the subject-ma
workable, and the following should be read into Sectior c

“(@) Information which would appear hig¢
pejorative, offensive by reasonable person in,,. aly’ judged by the
sreHigious, multi-racial
lawless action; e
(Brandenburg v. Ohio*®)
(ii) Information whig
winger, invites violent

ad disturbances; f
A
Ed 1095 : 274 US 357 (1927)
(vi) Information which contains fighting or abusive material;

Chaplinsky v. New Hampshire!
(vii) Inform ation which Promotes hate speech i.e.
or lack of reverence for such religious deities, hol

symbols, holy books or towards something which
sacred or inviolable.
Cc (viii) Salirical or iconoclastic cartoon and gari
feeling or revealing an overt sexual

deprave mind and designed to e cite*
likely to see it;
(Aveek. Sarkar v. State of WB. 39)
§2. What the . learned

not to read down Sectfon esale substitution of
he language used in Section

person be put on notice as to
Fear as to on which side of a clearly

sill fall.
54. We were given Collin’s Dictionary, which defined most of the terms
used in Section 66-A, as follows:
“Offensive.—
(/) unpleasant or disgusting, as to the senses
(2) causing anger or annoyance; insulting
(3) for the purpose of attack rather than defence.
Menace.—
(J) to threaten with violence, danger, etc.
(2) a threat of the act of threatening
(3) something menacing; a source of danger
(4) a nuisance.
Annoy.—
(Z) to irritate or displease
(2) to harass with repeated attacks.
Annoyance.
(/) the feeling of being annoyed
(2) the act of annoying.
Inconvenience.—
(2) somcthing inconvenicnt; a

Danger.— &
(/) the state of being vulnetable
Insult.—
(J) to trek,
or action; affront; slight

effect of an affront = some
Ppschicay held in a series of judgments

kid down to define guilt in a section
o clear guidance is given to either law
i eS and courts, a section which creates an
fetice and which is vague must be struck down as being arbitrary and
a nreasguable. Thus, in MusseFiv. Utah, a Utah statute which outlawed
“gonspiracy to commit acts injurious to public morals was struck down.
d 562 : 68S Ct 397 : 333 US 95 (1948)

56. In Winters v. New York*4, a New York penal law read as follows:
(L Ed p. 846) i
“1141. Obscene prints and articles.—(1) A person ... who,
(2) Prints, utters, publishes, sclls, lends, gives away, distributes’
shows, or has in his possession with intent to sell, lend, give away, i
pamphlet, magazine, newspaper or ‘other. printed paper devoted

publication, and ey made up of criminal news, police re,
or crime;
Is guilty of a misdemeanotr....”
The Court in striking down the said statute held: (L Ed pp. 851
“The impossibility of defining the precise line between" ermissible
uncertainty in statutes caused by describing¢.crifvés, by words well
imi “obscene, lewd,
lascivious, nconstitutional
vagueness that leaves a person uncertain as d of prohibited
conduct—massing storics to incite ims in three
arguments of this case in this Court
entire text ‘of the :statute or the subjects dealt

adequate standard. The presenting
The sub-section of! i

the Court of ‘are ]
made up of cri é , af bloodshed, or lust, so
. sexual passion’,
- Epe€ificatio of p ns, prohibited from distribution,
oO ee the conviction of this petitioner.
SUPREME COURT CASES (2015) 5 8CC

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 ling.
between the allowable and the forbidden publications. No intent, or
purpose is required—no indecency or obscenity in any sense heretof
known to the law. ‘So massed as to incite to crime’ can bééo
meaningful only by concrete instances. This one example is not @p
The clause proposes to punish the printing and circulation of publi
that courts or juries may think influence generally persons to
b
article of the Penal | Law under which it appears. ‘As s

Grocery Co. case®, (US at p. 89: S Clat p. 300): (L Ed p. 52
. It leaves open, therefore, the wides£,ca; HOG j c
scope of which no one can foresee and the re:
foreshadow or adequately guard against-
The statute as construed by the Court ¢
tales of war horrors, otherwise unes e

be ‘
crimes
e
8 Ct p. 739.”
57. In Burstyn v. Wilson*
outlawed. Here again, the
offending section stating:
erpreted as offending the f

f the United States are
f irage reliance on the wisdom and

fard in the exercise of such drastic g
WL only do not know but cannot know
. And if we cannot tell, how are
255 US 81:41 S Ct 298: 65 L Ed 516: 14 ALR 1045
Ed 1098 : 343 US 495 (1952)

58. In Chicago v. Morales, a Chicago Gang Congregation Ordinance

prohibited criminal street gang members from loitering with one another o¢
with other persons in any public place for no apparent purpose. The Court
referred to an earlier judgment in United States v. Reese, US at p. 22 tig
which it was stated that the Constitution does not permit a legislature to¥se <
net large enough to catch all possible offenders and leave it to the Eguitto
step in and say who could be rightfully detained and who should by
liberty. It was held that the broad sweep of the Ordinance violg
requirement that a legislature needs to meet: to establish minimgit
such guidelines, a substantial amount of innocent condué

brought within its net, leading to its unconstitutionality.
59. It was further held that a penal law is void for vaguene fails to
define the criminal offence with sufficient definiteness. Ordii y people
es j tig
d cee [N]o
person, while on public Of-pr
building in which a school or any class#théte
make or assist in the making of @hy né
tends to disturb the peace or good" “Suda
thereof....’ Code of Ordinances, c 28, 3 }
The law on the subject of vagueness \
L Ed pp. 227-28) :
“It is a basic principle
vagueness if its prohibi j
prohibited, so t
innocent by éccond, if arbitrary and
sd, laws must provide explicit
emen, Judges, and Juries for

basis, with the attendant dangers
sry apy dication. Third, but related, where a
ve areas of basic First Amendment
hibit the exercise of [those] freedoms’.
®Wncertain meanings inevitably lead citizens to ‘ “steer far wider of the
ei
49 527 US 41 : 144 L Ed 2d 67 (1999)
: 14: 23 L Ld 563 (1876)
Ed 2d 222: 408 US 104 (1972)
unlawful zone” ... than if the boundaries of the forbidden areas were
clearly marked,’ ”
61. The anti-noise Ordinance was upheld on facts in that case because it *
fixed the time at which noise disrupts school activity—while the schoo] i
session—and at a fixed place—“‘adjacent” to the school.
62. eeanely: there had to be demonstrated a _ causality
held that “undesirables” or their “annoying , conduct” may

It is only on these limited grounds that the said Ordinance w
to be Snpermssi0ly vague.
offence created for persons who use the internet as als

statute which was adjudged unconstitutional uses,
sion offensive”
fhich was adjudged
“223. (d) Whoever— a

(1) in interstate or foreign gom
: e
suggestion,
context, depicts or
g
these debates occur in newsgroups or chat rooms rather than in

pamphlets. Modern-day Luthers still post their theses, but to electroni®
bulletin boards rather than the door of the Wittenberg Schlosskirche.
More mundane (but from a constitutional perspective, equally importa
dialogue occurs between aspiring artists, or Trench cooks, or dog 1Bv.
881. (at p. 425)

64. The Supreme Court held that the impugned statut
precision that the First Amendment required when a statut
statute was enacted to. serve. It was held that the? undefined term
“patently offensive” covers large amounts of non® aphic material
with serious educational or other value and was both nd over broad.
S 453 (alteration in
tion is essential to the
lardi¢ss that it authorizes or * encourages

“ut” Ibid. As this Court has explained,
5 Connglty v. General Construction Céi 269 US 385 : 46 S Ct 126 : 70 lL Ed 322 (1926)

55 405 Us 156: 31 LEd 2d 110 (1972) ©
: 83 L Ed 888 (1939)
> 170 L Ed 2d 650 (2008)
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 dogctr
addresses at least two connected but discrete due process concery :
that regulated parties should know what is required of them so th
act accordingly; second, precision and guidance are necessary,
those enforcing the law do not act in an arbitrary or discriminatgry ray.
See Grauyned v. Rockford>!, US 108-109. When speecki’is ityoly, ad,
rigorous adherence to those requirements is necessar
ambiguity does not chill protected speech.”
67. Coming to this Court’s judgments, in State of
violative of Articles 19(1)(d) and (e) of the Constituti

pp. 979-80: AIR pp. 297-98, paras 9-10)
“Incidentally it would also be relevant to peg
the word would hardly be of any as

must be borne i in mind that the ACK ata
attract the provisions of Article

passing such Acts that they pro tde sufficient saled
capricious or even maliciou aR
is well known that the
motion against a person
ould be provided by
ent citizens and to save
Aaving
4 regard to th tmiities in Sections 4, 4-A respectively
6:not unk it would,b Pigsible to accede to the argument of the
2d 222 : 408 US 104 (1972)

) 1 SCR 970 : AIR 1961 SC 293 : (1961) 1 Cri LJ 442
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 Section 4, or
Section 4-A. In such a case it is absolutely essential that the Act_m
clearly indicate by a proper definition or otherwise when and underw
circumstances a person can be called a goonda, and it must im
obligation on the District Magistrate to apply his mind to the ques
to whether the person against whom complaints are reccived ig ‘
goonda or not. tt has been reed before us that such a bligation
“e to take
its should
subigally constitutes a
t. of the provisions of
on the exercise of the fundament C

Articles 19(1)(d) and (¢) must in *
Pe é suggest th
vagueness was no part of the Constitutional Law of Indjd: Te wis sispeted
paras 44-46: SCR pp. 469-71)

‘44. This brings us
restriction by the _direg
regulations are vague
us whether the
this connection, Sipailiuuce, Amritsar v. State of
Punjab. In th i this Court lays down that an
Indian Act c¥ano
teenth Amendment were eschewed in our

limits of restrictions on each fundamental
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 M.P!
Baldeo Prasad™®, where the Central Provinces and Berar Goondas' A'
1946 was declared void for uncertainty. The condition for the apf
of Sections 4 and 4-A was that the person sought to be proceeded,
must be a goonda but the definition of goonda in the Act indiga
tests for deciding which person fell within the definition.
were therefore held to be uncertain and vague.
The real rule is that if a law is vague or appears té
must try to construe it, as far as may be, and language
construction sought to be placed on it, must be in accord!
intention of the legislature. Thus if the law is open”
construction, that construction which accords Best:
applying it are in a boundless sea 1 of uncertaix 1

takes away a guaranteed freedom, the fuw |
application of the doctrine of due pré

or ble ort the misuse of the law ti
conditions imposed by it for t

vague and unintelligible. Th
of dealers. It was “Statéel, on #ioners that the conditions

imposed by su the grant or renewal of
licences are unc
and unfettered, statutory authorities in the
matter of grat i uur opinion this contention is
well founded: AUS accepted gs gorrect. Section 27(6)(a) states
Xisting in the region in which the

s8 as a dealer’. But the word ‘region’ g
milarly Section 27(6)(6) requires the
e anticipated demand, as estimated by
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
(g) of Section 27(6) impose unreasonable restrictions on the fundamen s
right of the petitioner to carry on business and are constittiior’lly
invalid, Tt was also contended that there was nO reason W.
requirement of Section 26 of the Act imposing the same

the renewal of the licence as for the initial grant ap
hound up with the other clauses of Section 3

single scheme. The result is that clauses (a), (2) and (g) are not
be held invalid.
administrator ‘may contain such conditions,

as the administrator may think fit wim
power upon the administrator thai %

opinion Section 27(2)(d) of the
the petitioners to
ct 27(2)(d) and
me contemplated
i din practice. It is,
therefore, necessary for! i e iegislation imposing
appropriate conditions i gent and renewal of
licences to deal C
‘Lis capable of wanton abuse. The

: SCR pp. 325-26)
manner prejudicial to the r aintenance of supplies and services essential

e community’ which ‘occurs in Section 3(2) of the Act. Which
2) 1 SCC 271 : 1982 SCC (Cri) 152 : (1982) 2 SCR 272


supplies and services are essential to the community can easily be
defined by the legislature and indeed, legislations which regulate thé.
prices and possession of essential commodities either enumerate those
commodities or confer upon the appropriate Government the power to%
so. In the absence of a definition of ‘supplies and services essential to
community’, the detaining authority will be [ree to extend the app
of this clause of sub-section nn to any commodities or servic
community.
But that is not all. The Explanation to sub-section £2)
particular phrasc in that sub-section a meaning wh
uncertain but which, at any given point of time, will
ascertain or fasten upon. According to the Explanation;
detention can be made under the National Security Act on ari
which an order of detention may be made :
that for the purposes of sub- section (2), ‘acting!

to the maintenance of supplies essential is t
of commodities essential to the comr Giied in| the Expl:

to sub- section (1) of Section 3 of the4 t. Clauses (é) and. (b) of the
t exhaust alni
e
instigating any person to commit “ai

Essential Commodities Act, 10 of 195
community. Clause (2) oft

relates to dealing in any,
Cont ‘ith respect to which
provisions have béen’ “4a OU ¥ as is referred to in
clause (a). We find at i tand as to which are the
remaining commééi He 1980 Act, in respect of
which it can b i i
the communi I
capable of wanton abuse in that,
ander detention any person for
5 basis that the authority 1s of the
71. Similarly, in Kartar Singh v. State of Punjab, SCC at paras 130-31,

it was held: (SCC pp. 648-49) a
“730. It is the basic principle of legal jurisprudence that an enactment
is void for vagueness if its prohibitions are not clearly defined. Vag
laws offend several important values. It is insisted or emphasise¢
laws should give the person of ordinary intelligence a red
opportunity to know what is prohibited, so that he may act accol
Vague laws may trap the innocent by not prov iding fair warnings
attendant dangers of arbitrary and discriminatory appl

uncertain and undetined words deployed inevitably lead ¢iti
far wider of the unlawful zone ... than if the boundaries of*th
areas were clearly marked.
131. Let us examine clause (i) of Sections,
shown to be blissfully and impermissibly vague% impkecise. AsA tightly
pointed out by the learned counsel, even an nocgnt person who
ingenuously and undefiledly communicates sf:
knowledge or r having no reason to elicyg oO
engaged in assisting in any manne

arrested and prosecuted by abusin:
definition. In ultimate consummation
72. Tudged by the standards laid an demients, it is

quite clear that the expressions used in Section 66-A : mpletely open-
ended and undefined. Section 66 1 ark contrast to Seefton eA states:
10)
“66. Computer relate off pces.— If any _.peTsou

fraudulently, does any act refi fo in Section, 3 fhe Spal be punishable
with imprisonment for a
urposes of this ¢
yaestly’ shall h.
A
e meaning assigned to it in
Section (45°Of 1860).”
73.
It will.
d the expressions dishonestly”
degree of specificity, unlike the
identification feature of another person is liable to punishment with

imprisonment. Under Section 66-D, whoever cheats by personating becomes.
liable to punishment with imprisonment. Section 66-F 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 soveréigni
sexually explicit acts in electronic form.

75. In the Penal Code, 1860 a number of the expressions t
Section 66-A occur in Section 268.
injury, danger or annoyance to the public or to the people i

dwell or occupy property in the vicinity, or which must neces
injury, obstruction, danger or annoyance to perso
to use any public right. c
A common nuisance is not excused on the grovind that it causes some
convenience or advantage.”
76. It iss important to notice the eens
ong used are ingredients
OW becon offences d
(a) does any obscene

(b) sings, recites,
near any public, plag
shall be punished wil B prisofiment of ei
may extend to thr or with fine, ofwith ‘Hoth. f
* ok
rson.—Whocver, in a state
of intoxicatio 3 apy fag or in any place which it is a
trespass jn. hit, to citer, and thereséond cle himsclf in such a manner as to
cause ,anri6OWanc oO any person, ghall bi punished with simple imprisonment
for az a which "nay extend to ae four hours, or with fine which may 9
a
> b “caused 1 by obscene utterances or acts.
annoyance that is caused to a person must
fson only in a public place or in a place for which it is a trespass for

ter. Such narrowly and closely defined contours of offences made A
the Penal Code are conspicuous by their absence in Section 66-A
which in stark contrast uses completely open-ended, undefined and vague

language.
78. Incidentally, none of the expressions used in Section 66-A are
defined. Even “criminal intimidation” is not defined—and the definition
clause of the Information Technology Act, Section 2 does not say that W
and expressions that are defined in the Penal Code will apply to this
79. Quite apart from this, as has been pointed out above,
expression used i is nebulous in meaning. What may be offensiv; ‘
expression “persistently” is ‘completely. imprecise " cuppee

sent thrice, can it be said that it was sent “persistently? Does
to be sent (say) at least eight times, before it can be said that su
“persistently” sent? There is no demarcating line conve ed by of these
expressions—and that is what renders the section ung it
80. However, the learned Additional Solicitor G 4 gued before us
that expressions that are used in Section 66-A may “be, ificapable of any
one of
saved
ise definition. In act "most
of the judgments cited before us did not ith criminal law ,
few that did are dealt with hereinbelot
Passage was only in the contex

that case. Siuarly, in Zar
breakdown of peace disturbance of public

order so as to cnda : d ils sovereignty. This
again was said in the é the ground of legislative
47 were outside the expression

st I Entry I of the Constitution of
saying that the expression “public
don the ground of vagueness.

VY Kedia Leather & Liquor Ltd., SCC
expression “nuisance” appearing in Section
2004 SCC (Cri) 1360
: 2003 SCC (Cri) 1642

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 W
repelled by saying that the areas of operation of the two provisions#w
completely different and they existed side by side being mutually ¢
This case again did not contain any argument that the provision cont
Section 133 was vague and, therefore, unconstitutional. Similarly, i ing
Karnataka v. Appa Balu ingale’’, the word ‘ jumouchability” Is Sal
Solicitor General would demonstrate how vague the words uséd

66-A are. In Director of Public Prosecutions v. Collins*®, the ve
“grossly offensive’ is contained in Section 127@b¥.
Communications Act, 2003. A 61 year old man madé,a nufjber of telephone
calls over two years to the office of a Member o' «Parliament. In these
telephone calls and recorded messages Mr Collins» sstrong views on
immigration made a reference to “Wogs’, » Bl ack bastards” and
Niggers Mr Collins was narecd with |
e rulings of the Diy 10. | Court that it is

+ question of fact ethét a message is
grossly offensive, that in m i he'justices must apply
the standards of an open Vy and that the words
must be judged taking ‘¢ and all relevant
circumstances. I weuldsys
time. Language eth nsulting may
affectionate, way; be adopted
Contemptibles’). T!
than by the ap
‘purpose and a degree of knowledge,

1l guidance on the stale of mind which
ei :
67 199: ‘Supp (4) SCC 469 : 1994 SCC (Cri) 1762
WLR 2223 : (2006) 4 All ER 602 (HL)
eetor of Public Prosecutions v. Collins, (2006) | WLR 308 : (2005) 3 All ER 326
83. Similarly in Chambers v. Director of Public Prosecutions™®, the

Queen’s Bench was faced with the following facts: (WLR p. 1833)
a “Following an alert on the internet social network, Twitter, the
defendant became aware thal, due lo adverse weather conditions, *
airport from which he was due to travel nine days later was close
responded by posting several ‘tweets’ on Twitter in his own
including the following: ‘Crap! Robin Hood Airport is closed. Y¢
got a week and a bit to get your shit together otherwise I am blowin
b airport sky high!!’ None of the defendant’s ‘follower: ho Sad
posting was 8 alarmed by it at the time. Some five days aft st
at the airport on a eeneral internet search for tweets

airport. Though not belicved to be a credible threat L
and, on appeal, the Crown Court upheldthe

that the message was ‘menacing per se’ ariel,
d very least, aware that his message w E
84. The Crown Court was satisficd’
“menacing” stating that an ordinat¥s,p
alarmed and, therefore, such message Wo
Prosecutions case®, WLR p. 1842 para 31)

e “31. Before concluding fifaliy message is crimir@l on the basis that il
represents a menace, its p i nces to be drawn
from ils precise terms, 1c, context in and the
means by which th sae Crown Court was
understandably coficer’ ed that this message ent at a time when, as
f we all know, ther ablic concern about a “ts of terrorism and the
g
icantly, although it purports to address
dusibte for the airport, it was not sent to

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;
itis 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 *
accustomed to very brief messages by terrorists to indicate that a ‘bo
difficult to imagine a serious threat in which warning of it is giv

large number of tweet ‘followers’ in ample time for the threa
reported and extinguished.”
85. These two cases illustrate how judicially trained ming
person guilly or not guilly depending upon the Judge’s
“srossly offensive” or “menacing”. In Collins case, both the
have absolutely no manageable standard?

offe nce under Section 66- A. This being t
86. Ultimately, applying the sts referred to in Glink man Rao’ and
VG. Row!" case, referred to ear, in the Oe s clear that Section ©
LOportionately, tf
son may discuss or even

: the internet information that
“point '6f vicw pertaifiing O governmental, literary, scientific
which may be unpdlatable"t6 certain sections of society. It is
ny matter may cause annoyance, g
persons within their fold who are otherwise outside the fold. Each one of
these things may be grossly offensive, annoying, inconvenient, insulting of
a injurious to large sections of particular communities and would fall within
the net cast by Section 66-A. In point of fact, Section 66-A is cast so wid
that virtually any opinion on any subject would be covered by it, i a
its net. Such is the reach of the section and if it is to withstand the
constitutionality, the chilling effect on free speech would be total, ;
b 88. Incidentally, some of our judgments have recognis
effect of free speech. In R. Rajagopal v. State of T.N.”, this (
pp. 646-47, para 19)
damages for libel against the defendants in “ pect yor two articles
published i in Sunday Times questioning the > Propgic f ig vestments made
Socialist tycoon deals with Labour Chief?

leader and the media tycoon’. A prelimin
d
e 2)73 popularlyk ‘BS ‘Spycatcher

case’, the House of Lords Pined that ‘thes ights available to
private citizens which jins 3 * nol ina Position
f public interest be
fetter on freed
freedom of speech, the public interest considerations which

underlaid them are no less valid in this country. What has beet
described as “the chilling effect” induced by the threat of civil
actions for libel is very important. Quite often the facts which wo
justify a defamatory publication are known to be true, but admi¥si
evidence capable of proving those facts is not available.’
Accordingly, it was held that the action was not maintainable 1 in lay
89. Also in S. Khushboo v. Kanniammal®, this Court sai 5

para 47)
“47. In the present case, the substance of the cont
really touch on whether premarital sex is socially acceptab
real issue of concern is the disproportionate response to t
remarks. If the complainants vehemently disagreedgyyith the ‘appellant’s
: : c
views, then they should have contested her views h the news media
or any |other Pupiic platform. The law should nol
d
Broadcasting, Govt. of India v. Cricket ¢
already referred to. It is thus clear that nok, o1 ‘ Ssioi a in
Section 66-A expressions of Tapani
e
point of fact, judgments of the
down sections which are simila
struck down i in the first Rang
me
Nigated” expressly or by
yor to defer payment of
feally held that under the f
ts of instigation ranging
was held that in its wide
swell as the guilty, bona fide
e a legal adviser, a friend or a
Supp 2) SCR 769: AIR 1962 SC 955: (1962)2 Cri LJ 103 Ah

entral Prison v. Ram Manohar Lohia, (1960) 2 SCR 821 : AIR 1960 SC 633 : 1960 Cri
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.
91. In Kameshwar Prasad v. State of Bihar!?, Rule 4-A of the Bi
Government Servants Conduct Rules, 1956 was challenged. The Rule st
“No government servant shall participate in any demonstration or i
any form of strike in connection with any matter pertaining to his co
of service.”
92. The aforesaid Rule was challenged under Articles 19(
the Constitution. The Court followed the law laid down ip?’
Lohia case!> and accepted the challenge. It first held that di
a form of speech and then held: (Kameshwar Prasad case
AIR p. 1168, para 5)
. The approach to the question regarding th
the rule should be whether the ban that it impe
is framed ‘in the interest of "public ord er

defined as ‘an expression of on
demonstration such as is prohibite
innocent type—peaceful orderly such as
a government servant or even B5 2a sifent‘A
any breach of tranquility, or of a type ifWolving incit

of leading to disorder. If the rule. had confined itselfto &
the type which would lead der then the validgy ofthat rule could
have been sustained but imposition of a
blanket- ban on all demo, innocent as well as
upheld.”
order by demonstrat ) i e §9(2). The connection with

public order has to Fe d E .and should arise directly
the same however innocent and

of public tranquility and does not
e, therefore, hold that the section is
Supp (3) SCR 369 : AIR 1962 SC 1166

entral Prison v. Ram Manohar Lohia, (1960) 2 SCR 821 : AIR 1960 SC 633 : 1960 Cri
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 ts not a ground to test its validity
persons on the rights of others. In Collector of Customs v. Nailed

Chetty™, this Court observed: (SCR pp. 825-26: AIR p. 332, p
“
This Court has held in numerous zuli a6. lo which it is ¢
unnecessary to refer, that the possibility of the abuge of the powers under
the provisions contained in any stalutc is no & d for declaring the
Passage in the
520-21:
‘. it appears to me that the shi
I hope its shortness will
validity of a measure is e
particular cases. ...
abused], il is open
i does not impart to it

any element of % o follow that a statute f
which is otherw cannot be saved by its
being administ ‘He constitutional validity of
he basis of its provisions and
g
96. 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
a Section 66-A is otherwise invalid, it cannot be saved by an assurance from
the learned Additional Solicitor General that it will be administered, LE cd
reasonable manner. Governments may come and Governments may 86
Section 66-A goes on forever. An assurance from the present Gové
even if carried out faithfully would not bind any successor Govern
must, therefore, be held that Section 66-A must be judged on its ow
b without any reference to how well it may be administered.
Severability
¢ expression or a part of the provision, the D

enshrined under Article 13 may be resorted to.”
98. The submission is vague: the learned Additions Solicitor General
does not indicate which part or parts of Section “possibly be saved.
This Court in Romesh Thappar v. State of Mad )
d severability when it came to the courts e afndamental sight under
Article 19(1)(a) in the following terms: ( CR: 03: AIR p. ‘£29, para £3)
“ It was, however, argued thi
considered wholly void, as, uitgar
inconsistent with a fundamental right)
inconsistency and no more. Insofar as the’securing
e the maintenance of public ord te :
the impugned Provision, as app
al righ
cnough to cove without the limits of
f constitutionally ssit ion “affecting such right, it is
not possible to upk it “¢
constitutional 1g 1 ong as the possibility of its
by the Constitution cannot be
onstitutional and void. In other
nd expression only in cases where

yhactment, which is capable of being
Slanger could arise, cannot be held to be
53 SCR 594 : AIR 1950 SC 124 : (1950) 51 Cri LJ 1514

99. It has been held by us that Section 66-A purports to authorise the
imposition of restrictions on the fundamental right contained i9
Article 19(1)(a) in language wide enough to cover restrictions both within
and without the limits of constitutionally permissible legislative action. ¥
have held following K.A. Abbas case*® that the possibility of Section®66
being applicd for purposes not sancuioned by the Constituion cannot Be r
Romesh Thappar case? was distinguished in R.M.D. ChamarbaugWdtla,

Union of India™ in the context of a right under Article ae asgollo
* ‘
e “of ePublic
Goyermment
to prohibit the entry and circulation within the State of a ne¥ aper ‘for
the purpose of securing the public safety or the maiatenancé of public
order’. aus to the enactment of this statuitig the'Gonstitution came
éd ‘existing law
he security of or
s Court tha was the
purposes mentioned in Section 9(1- A) otis
amplitude than those specified in Artiés ath
to split up Section 9(1-A) into what w:
protection of Article 19(2), the ptayisi
really z a decision that the impugned:
principle of ” severability is ing tnissible when the* idity of a statute

arises by reason of its contravesting constitutional.pr hibitions. It should
be mentioned that the decisis 'p "State of Madras*
100. The preseng baie

rhappar” judgment
‘reason that the eight subject-

“their absence in Article 19(6)
*
of téasonable restiictio i
?, as Dus been held above, ‘Section 66-A
Article 14
101. The counsel for the petitioners have argued that Article 14 is alsé
a infringed in that an offence whose ingredients are vague in nature is arbitrary
and unreasonable and would resulti in arbitrary and discriminatory appligad
Article 19(1)(a@) nor can it justify its denial. Hoo nl we come to

discrimination under Article 14, we are unable to ae ity the counsel for
print, broadcast and real live speech as oppost

intelligible differentia is clear—the internet
@ which requires very little or no payment?
learned Additional Solicitor General has
would apply equally to all other offen created by the

Technology Act which are not the subject: matter cli lenge in these
gentia between
speech on the internet and o u cation for which
separate offences can certain We find, therefore,
103. One other

petitioners, Section ‘the vice of procedural
nal defamation is alleged, the
Avould not be available for a
Such safeguards are that no
fin a office except upon a complaint made
ce and that such complaint will have to
seized but under Section 96 any person having any interest in such
newspaper, book or document may within two months from the date of @
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 Bet
consisting of at least three Judges or in High Courts which consist of |
fate “bad for criminal

halftake cognizance
Indian Penal Code (45 of 1860). L

except with the previous sanction of the’
Government.
e
ii Bena ‘ode, 1860 (45 of
commit an offence punishable

imprisonment for a term of two
Govertiment or the District Magistrate has
the proceedings: g
ae
. i iment or the State Government may, before

cording sanction under Sub- section (1) or sub-section (1-A) and the
Disfrict Magistrate may, beféte according sanction under sub-section (1-A)
andthe State Government or the District Magistrate may, before giving A
congent 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.” 4
105. Again, for offences in the nature of promoting enmity between , —
different groups on grounds of religion, etc. or offences relatable to delibera
and malicious acts intending to outrage religious feelings or statement® th.
create or promote enmity, hatred or ill will between classes can only bi
cognizance of by courts with the previous sanction of the
Government or the State Government. This procedural safcguard
apply even when a similar offence may be committed over the ji
a person is booked under Section 66-A instead of the aforesai sections:
106. Having struck down Section 66-A on substantive Ss, we need
&
not decide the procedural unreasonableness aspect of the secti 7
Section 118 of the Kerala Police Act

107. The learned counsel for the petitioner in elition No. 196 of
2014 assailed clause (d) of Section 118 which is set ot ereigbelow:
“118. Penalty for causing grave violati public order or
danger.— Any person who—
BS *
(d) causes annoyance to any,.

statements or verbal or comments
or by chasing or sending messages ©
*
shall, on conviction be punishable wit

extend to three years or with fine not ex
both.”
109. 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™, the law is stated thus: (SCR p. 410 :
AIR p. 303, para 12)
“The position,
legislation. To do that, one must have regard to the enactment as @

to its objects and to the scope and effect of its provisiagis. If:
competence. It would be quite an crroncous approach Lo Lhe,

view such a statute not as an organic whole, but as a mere cat ection of
er what heads of
annoyance in an indecent manner in pith

III Entry 1 which speaks of criminal
111. However, what has been said abit

directly to Section 118(d@) of the tala Police Act, as J
an indecent manner suffers [r¢ e
as
same lype of
ms
and not being areasonabl fost iction on the § ai

under any of the subjeét-maiters ‘éontained i in,
to be unconstitutiona
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 organisation concerned for blocking, which complaint will then have#ts
be examined by the organisation concerned regard being had to
parameters laid down in Section 69-A(1) and after being so satisfied
transmit such complaint through its Nodal Officer to the Designated |
in a format specified by the Rules. The Designated Officer is not to en
any complaint or request for blocking directly from any pers i
Under Rule 7 thereof, the request/complaint | shall then be exa

Committee of Government Personnel who under Rul othe first to make all
iarygwho has hosted
the information. If 80 identified, a notice shall issue © appear and submit
from the date and time of receipt of notice by ict

The Committee then examines the request and
concerned. It is only thereafter that the

Committee’s recommendation to the &
provides for
blocking of information in case y caused would be
fatal in which case the blockir ! t
hearing. The Designated Osffiger “she tian 48 hours of the
issue of the interim sired bri before the Committee
Secretary Departmet
Under Rule 10, in th
inféfmation Technology and then

addition to the above safeguards,
shall ‘meet at least once in two months
regtions issued are in accordance with
garding all the requests and complaints received and actions taken thereof.
The learned counsel for the petitioners assailed the constitutional
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 tobe
sent, generated, stored or transmitted to any other person. Further, procedui
safeguards such as which are provided under Sections 95 and 96 of the*Cot
of Criminal Procedure are not available here. Also, the confid@nti
provision was assailed stating that it affects the fundamental rights
petitioners.
narrowly drawn provision with several safeguards. Firs

blocking can only be resorted to where the Central Gove
that it is necessary so to do. Secondly, such necessity is ré
some of the subjects set out in Article 19(2). Thirdly, reaso:
recorded in writing in such blocking order so that they may be Ailed in a
writ petition under Article 226 of the Constitution. ,
115. The Rules further provide for a hearing b c ne Committee set ©
up—which Committee then looks into whether or no s nécessary to block
oft there is such a
“person” Le. the originator is identified d

blocking order is passed. Above ll,
safeguards are met that blocking orders
certified copy of a court order, only* ‘the
made. It is only an intermediary wh6®
directions issued who is punishable under sul
116. Merely because certain additional safeguards sy i, those found in e
Sections 95 and 96 CrPC are"nov available does fet make the Rules
constitutionally infirm. We Rules are not
constitutionally infirm in an
Rules, 2011
117. Section in which f
"te : ic provisions off cub. étrons 2) and (3), an intermediary

shall ;fot be iable for any
g
intermediary is limited to providing access to

a communication systein over which information made available by
third parties is transmitted or temporarily stored or hosted; or
(b) the intermediary does not— h
(i) initiate the transmission,
(id select the receiver of the transmission, and

(ii) select or modify the information contained in thé
transmission; :
(c) the intermediary observes due diligence while discharging "
dutics under this Act and also observes such other guidelines aS ft
Central Government may prescribe in this behalf.
(3) The provisions of sub-scction (1) shall not apply if—
(a) the intermediary has conspired or abetted or aided or;
appropriate Government or its agency that any infor

communication link residing in or connected to a co
controlled by the intermediary is being used to commit the’*
party information’ means any information dealt swath" 4 intermediary in

his capacity as an intermediary.”
118. Under the 2011 Rules, by Rule 3
publish the rules and regulations, privacy palic user agree Hent for
access or usage of the intermediary s chp: resource buf:he fas algo to
ermcdiary
shall observe following due diligen his duties,
namely—
. ysers of ' eomputel” resource not to host,

display, upload, niodiby om
publish, tr Hi
information that
iy “patent, trademark, copyright or other
Haw for the ume 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 codé}
files or programs designed to interrupt, destroy or limit the
functionality of any computer resource; ;
(j) threatens the unity, integrity, defence, security.
sovereignty of India, friendly relations with foreign st
public order or causes incitement to the commission 4
ot
is stored or hosted or published, upon obtaining know! by itself

or been brought to actual knowledge by an affected per: writing
or through e-mail signed with electronic sign; re about any such
information as mentioned in sub-rule (2)
thirty-six hours and where applicable, wor gser or owner of
such information to disable such informatie: th ig-in contravention
of sub-rule (2). Further the preserve such
information and associated records®,
investigation purposes.”
119. The learned counsel for the pet
interact with each other over the imernct. Further, no safég

as in the 2009 Rules made und. ction 1 69- A. Also,
that Section 66-A is bad, the peti sf
that it is vague and over bro i
@ction 79(3)(b) to the

own judgment upon
being used to commit
> also goes way beyond
is closely related to provisions

won 69-A. We have seen how under
é' only by a reasoned order after
feguards including a hearing to the
has to follow an Order passed by. a competent court. The

ary applying its own mind to whether information should or should
122. 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 tt
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 rea:
that otherwise it would be very difficult for intermediaries like Googe:
Facebook, etc. to act when millions of requesis are made did
intermediary is then to judge as to which of such requests are legitim
which are not. We have been informed that in other countries worldw
must strictly conform to the subject- matters laid down 4 A

Unlawful acts beyond what is laid down in Article 192) otiy
down Section1 79(3)(B), :

123. The learned Additional Solicitor General ,infermed us that it is a
common practice worldwide for intermediaries téyfave*user agreements
containing what is stated in Rule 3(2). However, Rulé#3(4) ‘heeds to be read
down in the same manner as Section 79(3)(b). The#kr ge spoken of in
the said sub-rule must only be through the mediy a tourt order. Subject
to this, the Information Technology (Intermédi aries’ Guidelines) Ru, 2011
are valid.
124. In conclusion, we may summarise" as been helé by% 4 abéwe:
124.1. Section 66-A of the Informnatidn Téek ology Act, 2Q0 is struck
down in its entirety being violative ol ‘
Article 19(2).
124.3. Section 79 is valid su

mean that an img nonfied ok g
by the Se oprate: p t or its agency that
ommitted then fails
2011 are valid

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SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.

Page 1 Sunday, March 13, 2022

196 of 2014, Writ Petitions (Cy Nos.

Freedom of speech and expres aie ‘to express

Kilormation Technology (Procedure and Safeguards for Blocking for Access

Article 32 of the Constitution of India

2 SUPREME COURT CASES (2015) 5 8CC

I. SCOPE OF FREEDOM OF SPEECH AND EXPRESSION

F. Constitution of India — Preamble and Art. 19(1)(a) =

when discussion or advocacy reaches level of

ight subject-matters set out under

SITREYA SINGIIAL v. UNION OF INDIA 3

I. Constitution of India — Arts. 19()(a) & (2) — Grounds for testing

expression cannot pass muster if it is merely in the interest of the gene

thought, expression, belief, faith and worship. It also says4

of paramount importance under a democratic cons lion’ which envisages

sapopular is at the heart of

e that a law may be made

19(1)(a) of the Indian Constitution speaks of

4 SUPREME COURT CASES (2015) 5 8CC

American judgments have great persuasive!

TI. INFORMATION TEG ‘i 0 * S. 66-4 —

(1)(v) — Offence under

SITREYA SINGIIAL v. UNION OF INDIA 5

freedom of speech and expression of the citiz ticy

(2) Reasonableness of restriction andafr Ngee

¢ni its greater impact

6 SUPREME COURT CASES (2015) 5 8CC

said right. The wider range of circulation of information or i

world. If the petitioners were right, this At

of MP, 1950 SCR 759 :; AIR 1951 sc 118: State of

SITREYA SINGIIAL v. UNION OF INDIA 7

and Phrases — “Public order”

does a particular act lead to disturbance of the’‘current life Sf the Sent or

disseminated may be to%*

require that su essageé. should havetit cl ndency to disrupt public order.

pene or otherwise without in any manner impacting public order.

8 SUPREME COURT CASES (2015) 5 8CC

(ii) Test of clear and present danger to public order/Tendency

present danger’, “tendency to create”

that they will bring about the substantive evils

BL: 337 ‘US 1 (19.40): Brandenbats

mation Technology nternet, Computer and Cyber Laws —

SITREYA SINGIIAL v. UNION OF INDIA 9

Essential ingredient of — Injury to reputation — Constitution of India —

sent on the internet based on whether’

under, does not fall withi

under S. 66-A need not be cene at all "

ettihe word “obscene” is conspicuous

10 SUPREME COURT CASES (2015) 5 SCC

Hig ‘ace to guess théirHse with it leaves them in a boundless

SITREYA SINGIIAL v. UNION OF INDIA 11

Expressions uscd in S. 66-A are open-ended, undefined and vague as a result

balance between such right and reasonable restrictions tha

They may be ingredients of certain offences under t

and which is vague must be struck down as

of the IT Act, 2000 are completely

12 SUPREME COURT CASES (2015) 5 8CC