No Acts & Articles mentioned in this case
[2015] 5 S.C.R. 963
SHREYA SINGHAL A
....... .,.....,.""'-..
v.
UNION OF INDIA
(Writ Petition (Criminal) No. 167 of2012 etc.)
B
MARCH 24, 2015
[J. CHELAMESWAR AND R. F. NARIMAN, JJ.]
•
Information Technology Act, 2000:
s. 66A -Constitutional validity of -Held: s. 66A is violative
c
of Article 19(1)(a) and is not saved under Article 19(2) -It
arbitrarily, excessively and disproportionately invades the
right
of free speech and upsets the balance between such
rights
and the reasonable restrictions imposed thereupon -
the expressions used in
s. 66A are open ended, vague and
D
undefined - The reach of the section is such that it has a
chilling effect on free speech and thus suffers from the vice
. of overbreadth -Therefore, s. 66A as a whole is declared
unconstitutional -Constitution
of India,
1950 -Art. 19(1) (a)
E
and 19(2).
s. 66A -Whether constitutionally invalid on the touchstone
of Art. 14 of the Constitution -Held: There is an intelligible
differentia
between speech on the internet and other
mediums of communication -Hence s. 66A is not violative
F
of Art. 14 -Constitution oflndia, 1950-Art. 14.
s. 69A and Information Technology (Procedure and
Safeguards for Blocking for Access of Information by Public)
G
Rules,
2009 -Constitutional validity of-Held: s. 69A as well
as the Rules are constitutionally valid -
s. 69A is a narrowly
drawn provision with several safeguards under the Rules -
Merely absence
of certain additional safeguards as provided
ulss. 95 and 96 Cr.P. C. does not make the Rules
H
963
964 SUPREME COURT REPORTS [2015] 5 S.C.R.
A constitutionally infirm -Information Technology (Procedure
and Safeguards for Blocking for Access
of Information by
Public) Rules,
2009-Code of Criminal Procedure, 1973-
ss. 95 and 96.
B s. 79 and Information Technology (Intermediary Guidelines)
Rules, 2011-Constitutional validity of-Held: s. 79 is valid,
subject to s. 79(3)(b) being read down to mean that an
intermediary upon receiving actual knowledge from a court
order or
on being modified by the appropriate Government C or its agency that unlawful acts re/atab/e to article 19(2) are
going to be committed, and then fails to expeditiously remove
or disable access to such material -Similarly the Rules are
valid, subject tor. 3(4) being read down in the same manner
as
s. 79(3)(b) -Information Technology (Intermediary
D Guidelines) Rules,
2011-r. 3(4).
Kera/a Police Act, 1960 :
s. 118 -Legislative competence of-Challenged - Held:
E The Act as a whole ands. 118 as part thereof falls in pith and
substance
within Entry 2 List II of
Seventh Schedule of the
Constitution - Even otherwise, the penalty created for
causing annoyance
in an indecent manner in pith and
substance
would fall within Entry 1 List Ill and would thus be
F within the competence of the
State Legislature - Constitution
of India, 1950-Seventh schedule, List II, Entry 2; List Ill Entry
1 -Doctrine of Pith and Substance.
s. 118 -Constitutional validity of -Held: s. 118 suffers from
G the vice of vagueness and overbreadth -Thus violates Art.
19(1 )(a) and since not saved under any of the subject matters
contained in Art. 19(2), hence is unconstitutional.
Statutes -Challenge to the vires of -Ground for -Held:
H Possibility of abuse of a statute is not a ground to test its
SHREYASINGHALv. UNION OF INDIA 965
validity, if the statute is otherwise valid. A
Doctrine of Severability -Applicability of-Discussed.
Words and Phrases:
'Reasonable restrictions' -
Meaning of, in the context of Art. B
19(2) of the Constitution.
Disposing of the writ petitions, the Court
HELD:
1. When it comes to democracy, liberty of c
thought and expression is a cardinal value that is of
paramount significance under the constitutional
scheme. There are three concepts which are
fundamental in understanding the reach of this most
basic of human rights i.e. "freedom of speech and o
expression". The first is discussion, the second is
advocacy, and the third is incitement. Mere discussion
or even advocacy of a particular cause howsoever
unpopular it is at the heart of Article 19(1)(a).
It is only
when such discussion or advocacy reaches the level of E
incitement that Article 19(2) kicks in~ It is at this stage
that a law may be made curtailing the speech or
· expression that leads inexorably to or tends to cause
public disorder
or tends to cause or tends to affect the
sovereignty
& integrity of India, the security of the
State, F
friendly relations with foreign States, etc. (Paras 8 and
13] [987-F; 991-A-C]
Romesh Thapparv.
State of Madras (1950) S.C.R. 594;
Sakal Papers (P) Ltd. & Ors. v. Union of India (1962) 3 G
S.C.R. 842; Bennett Coleman & Co. & Ors. v. Union of
'
India & Ors. (1973) 2 S.C.R. 757; S. Khushboo v.
Kanniamal & Anr. (2010) 5 SCC 600: 2010 (5)
SCR 322; Abrams v. United States 250 US 616 (1919)
-referred to. H
966 SUPREME COURT REPORTS [2015] 5 S.C.R.
A Whitney v. California 71 L. Ed. 1095; Chaplinsky v. New
Hampshire 86 L. Ed. 1031 -referred to.
2.1 Section 66A has been challenged on the
ground that
it casts the net very wide -
"all information"
B that is disseminated over the internet is included within
its reach. Section
2(v) of Information Technology Act,
2000
defines information. The definition is an inclusive one.
The definition does not refer to
what the content of
information can be.
In fact, it refers only to the medium
C through which such information is disseminated. It is
clear, therefore, that the public's right to know is directly
affected by Section
66A.
[Para 201 [995-F-G; 996-8]
2.2 Information of all kinds is roped in s. 66A -
o Such information may have scientific, literary or artistic
value,
it may refer to current events, it may be obscene
or seditious. That such information may cause
annoyance or inconvenience to some is how the offence
is made out.
It is clear that the right of the people to know
E -the market place
of ideas -which the internet provides
to persons
of
all kinds is V)lhat attracts Section 66A. That
the information sent has to
be annoying, inconvenient,
grossly offensive etc., also shows that no distinction is
made between mere
discussion or advocacy of a
F
particular point of view which may be annoying or
inconvenient or grossly offensive to some and
incitement by which such words
lead to an imminent
causal C'Onnection with public disorder, security of State
etc. Section 66A, in creating an offence against persons
G who use the internet and annoy
or cause inconvenience
to others, very
clearly affects the freedom of speech and
expression
of the citizenry of
India at large in that such
speech
or expression is directly curbed by the creation
H
of the offence contained in Section 66A. [Para
20] [996-
C-F]
SHREYA SINGHAL v. UNION OF INDIA 967
American Communications Association v. Douds 94 A
L. Ed. 925 - referred to.
3.1 Under the constitutional scheme, it is not open
to the State to curtail freedom of speech to promote the
general public interest. [Para
21] [997-D] B
Sakal Papers (P) Ltd. & Ors. v. Union of India ( 1962) 3
S.C.R. 842 -relied on.
3.2 There is a distinction between the print and
other media as opposed to the internet, and the C
legislature may well, therefore, provide for separate
offences
so far as free speech over the internet is
concerned. There is, therefore,
an
intelligible differentia
having a rational relation to the object
sought to be
0
achieved -that there can be creation of offences which
are applied to free speech over the internet alone as
opposed
to other mediums of communication. But this
would
not relax the Court's scrutiny of the curbing of
the content of free speech over the internet. Therefore, E
a relaxed standard
of reasonableness of restriction
should apply regard being had to the fact that the
medium
of speech being the internet, differs from other
mediums on several grounds. [Paras
27 and 28]
[1005-
D-F; 1002-E] F
Secretary Ministry of Information & Broadcasting,
Government
of India v. Cricket Association of Bengal
(1995) 2 sec 161: 1995 (1)
SCR 1036 -relied on.
Superintendent, Central Prison, Fatehgarh v. Ram
Manohar Lohia (1960) 2 S.C.R. 821; Chintaman Rao
v. The State of Madhya Pradesh (1950) S.C.R. 759;
State of Madras v. V. G. Row (1952) S.C.R. 597; Mohd.
Faruk
v.
State of Madhya Pradesh & Ors. (1970) 1
G
H
968 SUPREME COURT REPORTS [2015] 5 S.C.R.
A S.C.R. 156; Dr. N. B. Khare v. State of Delhi (1950)
S.C.R. 519 -referred to.
3.3 Section 66A is intended to punish any person
who uses the internet to disseminate any information
B that falls within the sub-clauses of Section 66A. The
recipient
of the written word that is sent by the person
who is accused
of the offence is not of any importance
so far as this
Section is concerned. (Save and except
where under sub-clause (c) the addressee or recipient
C is deceived or misled about the origin of a particular
message.). The Section makes no distinction between
mass dissemination
and dissemination to one person.
Further, the
Section does not require that such message
should have a clear tendency to disrupt public order.
D Such message need not have any potential which could
disturb the community at large. The nexus between the
message and action that may
be taken based on the
message is
conspicuously absent -there is no
ingredient in this offence
of inciting anybody to do
E anything which a
reasonable man would then say would
have the tendency of being an immediate threat to public
safety or tranquility. On all these counts, it is clear that
the Section has no proximate relationship to public order
F whatsoever. [Para
35]
[1002-D-H]
Arun Ghosh v. State of West Bengal (1970) 3 S.C.R.
288 -relied on.
Romesh Thappar v. State of Madras (1950) S.C.R. 594;
G Brij Bhushan & Anr. v. State of Delhi (1950) S.C.R. 605;
Superintendent, Central Prison, Fatehgarh v. Ram
Manohar
Lohia
(1960) 2 S.C.R. 821; Dr. Ram
Manohar Lohia v. State of Bihar & Ors. (1966) 1 S.C.R.
709 -referred to.
H
SHREYA SINGHAL v. UNION OF INDIA 969
3.4 Viewed at either by the standpoint of the clear A
and present danger test
or the tendency to create public
disorder,
Section 66A would not pass muster as it has
no element
of any tendency to create
public disorder
which ought to
be an essential ingredient of the offence
which
it creates. [Para 41] [1016-A] B
S. Rangarajan v. P Jagjivan & Ors. (1989) 2 SCC 574:
1989
(2)
SCR 204; State of Bihar v. Shailabala Devi
(1952) S.C.R. 654; Ramji Lal Modi v. The State of UP
(1957) S.C.R. 860; Kedar Nath Singh v. State of Bihar C
1962 Supp. (2) S.C.R. 769; Dr. Ramesh Yeshwant
Prabhoo v. Prabhakar Kashinath Kunte & Ors. 1996
(1) SCC 130: 1995 (6) Suppl. SCR 371 -relied on.
Schenck v. United States 63 L. Ed. 470; Abrams v. o
Unites States 250 U.S. 616 (1919); Terminiel/o v. City
of Chicago 93 L. Ed.1131 (1949); Brandenburg v. Ohio
23 L. Ed. 2d 430 (1969); Virginia v. Black 155 L. Ed.
2d 535 (2003) -referred to.
3.5 For something to be defamatory, injury
to
reputation is a basic ingredient.
Section 66A does not
concern itself with injury to reputation. Something may
be grossly offensive and may annoy
or be inconvenient
E
to somebody without at
all affecting his reputation. It is F
clear therefore that the Section is not aimed at
defamatory statements at all. [Para 43] [1017-B-C]
3.6 Section 66A has also no proximate connection
with incitement to commit an offence. Firstly, the G
information disseminated over the internet need
not be
information which
"incites" anybody at all. Written words
may be sent that may be purely in the realm of
"discussion" or "advocacy" of a "particular point of
view". Further, the mere causing of annoyance, H
970 SUPREME COURT REPORTS [2015] 5 S.C.R.
A inconvenience, danger etc., or being grossly offensive
or having a menacing character are not offences under
the Penal Code at all. They may be ingredients of certain
offences under the Penal Code but are not offences in
themselves. For these reasons, Section
66A has nothing
B to do with
"incitement to an offence". [Para 44] [1017-D
F]
3.7 Section 66A cannot possibly be said to create
an offence which falls within the expression 'decency'
C or 'morality' in that what may be grossly offensive or
annoying under the Section need not be obscene at all
-in fact the word 'obscene' is conspicuous by its
absence in Section 66A. [Para 47] [1018-F-G]
D 3.8 The subject matters contained in Article 19(2)
cannot be read into s 66A in order to save the
constitutionality of the provision. When the legislature
intended to do so, it provided for some of the subject
matters contained in Article 19(2) in Section 69A. The
E Court would be doing complete violence to the language
of Section 66A, if it were to read into 66A, something
that was never intended to
be read into it. [Para 48]
[1018-
H; 1019-A-B]
F 3.9 As Section 66A severely curtails information
that may be sent on the internet based on whether
it is grossly offensive, annoying, inconvenient, etc. and
being unrelated to any of the eight subject matters under
Article 19(2) must, therefore, fall foul of Article 19(1 )(a),
G and not being saved under Article 19(2), is declared as
unconstitutional. [Para 44] [1017-F-G]
4.1 The expressions used in Section 66A are
completely open-ended and undefined. Section 66 is in
H stark contrast to Section
66A.
In all computer related
SHREYASINGHAL v. UNION OF INDIA 971
offences that are spoken of by Section 66, mens rea is A
an ingredient and the expression "dishonestly" and
"fraudulently" are defined with some degree of
specificity, unlike the expressions used in Section 66A.
The provisions contained in Sections 668 up to Section
678 also provide for various punishments for offences B
that are clearly made out. [Paras 69, 70 and 71] [1041-A,
E-F]
4.2 In the Penal Code, a number of the
expressions that occur in Section 66A occur in Section C
268. Whereas, in Section 268 the various expressions
used are ingredients for the offence
of a public nuisance,
these ingredients now become offences in
themselves
when it comes to Section 66A. Further, under Section
268, the person should be guilty of an act or omission D
which is illegal in nature -legal acts are not within its
net. A
further ingredient is that injury, danger or
annoyance must be to the
public in general. Injury,
danger or annoyance are not offences by themselves
howsoever made and to whomsoever made. [Paras 72 E
and
73] [1042-8, E-G]
4.3 The expression
"annoyance" appears also in
Sections
294 and
510 of the IPC. In S9ction 294, the
annoyance that is spoken
of
is clearly defined -that is, it F
has
to be caused by obscene utterances or acts.
Equally,
under Section 510, the annoyance that is caused to a
person
must
only be by another person who is in a state
of intoxication and who annoys such person only in a
public place or in a place for which it is a trespass for G
him to enter. Such narrowly and closely defined contours
of offences made out under the Penal Code are
conspicuous by their absence in Section 66A which in
stark contrast uses completely open ended, undefined H
972 SUPREME COURT REPORTS [2015) 5 S.C.R.
A and vague language. [Paras 73 and 74] [1042-G; 1043-E
F]
4.4 None of the expressions used in Section 66A
are defined. Even "criminal intimidation" is not defined
B
-and the definition
clause of the Information Technology
Act, Section 2 does not say that words and expressions
that are defined in the Penal Code will apply to that Act.
[Para 75] [1043-G]
c 4.5 Every expression used is nebulous in
meaning. What may be offensive to one may not be
offensive
to another. What may cause annoyance or
inconvenience to one may not cause annoyance or
inconvenience to another. Even the expression
o
"persistently" is completely imprecise. There is no
demarcating line conveyed by any of these expressions
-and that is what renders the Section unconstitutionally
vague. [Para
76]
[1044-A-C]
E
F
G
H
State of Madhya Pradesh v. Baldeo Prasad (1961) 1
S.C.R. 970; K.A. Abbas v. The Union of India & Anr.
(1971) 2 S.C.R. 446; Harakchand Ratanchand Banthia
& Ors. v. Union of India & Ors. 1969 (2) SCC 166:
1970 (1) SCR 479; A.K. Roy& Ors. v. Unionoflndia &
Ors. (1982) 2 S.C.R. 272:1994 (2) SCR 375; Kartar
Singh v. State of Punjab (1994) 3 SCC 569:1994 (2)
SCR 375 -relied on.
Madan Singh v. State of Bihar(2004) 4 SCC 622: 2004
(3) SCR 692; Zameer Ahmed Latifur Rehman Sheikh
v. State of Maharashtra & Ors. (2010) 5 SCC 246: 2010
(4) SCR 1042; State of M.P v. Kedia Leather& Liquor
Limited (2003) 7 sec 389: 2003 (2) Suppl. SCR 727
-held inapplicable.
Musserv. Utah 92 L. Ed. 562; Winters v. People of State
SHREYASINGHAL v. UNION OF INDIA 973
of New York 92 L. Ed. 840; Burstyn v. Wilson 96 L. Ed. A
1098;
City of Chicago v. Morales et al, 527
U.S. 41
(1999); Grayned v. City of Rockford 33 L.Ed. 2d. 222;
Reno, Attorney General of the United States, et al. v.
American Civil Liberties Union et al. 521 U.S. 844
(1997);
Federal Communications Commission v. Fox B
Television Stations132
S.Ct. 2307 -referred to.
Director of Public Prosecutions v. Collins (2006) 1 WLR
2223;
Chambers v. Director of Public Prosecutions
(2013) 1 W.L.R. 1833 -referred to.
C
5. Information that may be grossly offensive or
which causes annoyance or inconvenience are
undefined terms which take into the net a very large
amount of protected and innocent speech. A person may o
discuss or even advocate by means of writing
disseminated over the internet information that may be
a
view or point of view pertaining to
governmental,
literary, scientific or other matters which may be
unpalatable to certain sections of society. It is obvious E
that an expression
of a view on any matter may cause
annoyance, inconvenience
or may be
grossly offensive
to some. Section 66A is cast so widely that virtually any
opinion on any subject would be covered by it, as any
serious opinion dissenting with the mores
of the day F would be caught within its net. Such is the reach of the
Section and if it is to withstand the test of
constitutionality, the chilling effect on free speech would
be total. Section 66A is unconstitutional also on the
ground that
it takes within its sweep protected speech G
and speech
that is innocen.t 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. [Paras 83 H
and 90] [1049-G-H; 1050-A-E; 1054-H; 1055-A]
974 SUPREME COURT REPORTS [2015] 5 S.C.R.
A Central Prison, Fatehgarh v. Ram Manohar Lohia
(1960) 2 S.C.R. 821; Kameshwar Prasad & Ors. v.
The State of Bihar & Anr.1962 Supp. (3) S.C.R. 369-
followed.
B R. Rajagopal v. State of T.N. (1994) 6 SCC 632: 1994
(4) Suppl. SCR 353; S. Khushboo v. Kanniammal
(2010) 5 SCC 600:2010 (5) SCR 322; Reno, Attorney
General
of the United
States, et al. v. American Civil
Liberties Union
et al., 521
U.S. 844 (1997); The
C Secretary, Ministry of Information & Broadcasting v.
Cricket Association of Bengal & Anr. (1995) SCC 2
161: 1995
(1)
SCR 1036; KedarNath Singh v. State of
Bihar(1962) Supp. 2 S.C.R. 769 -relied on.
D
6. The
possibility of abuse of a statute otherwise
valid, does not impart to it any element of invalidity. If
Section 66A is otherwise invalid, it cannot be saved by
an assurance from the State that it will be administered
in a reasonable manner. Governments may come and
E go but Section 66A goes on forever. An assurance from
the present Government even
if carried out
faithfully
would not bind any successor Government. It must,
therefore,
be
held that Section 66A must be judged on
its own merits without any reference
to how
well it may
F be administered. [Para
92]
[1056-F-H]
7. Section 66A does not fall within any of the
subject matters contained in Article 19(2) and the
possibility of its being applied for purposes outside those
G subject matters is clear. Therefore, no part of Section 66A
is severable and the provision as a whole must be
declared unconstitutional. [Para 96] [1059-G-H]
Romesh Thapparv. The State of Madras (1950) S.C.R.
H 594 -relied on.
SHREYASINGHAL v. UNION OF INDIA 975
R. M.D. Chamarbaugwalla v. The Union of India (1957) A
S.C.R. 930 -distinguished.
The Collector of Customs, Madras v. Nathe/la
Sampathu Chetty &Anr. (1962) 3 S.C.R. 786-referred
~. B
8. It cannot be said that there is no intelligible
ft differentia between the medium of print, broadcast and
real live speech as opposed to speech on the internet.
The intelligible differentia is clear-the internet gives any C
individual a platform which requires very little or no
payment through which to air his views. There is
an intelligible differentia between speech on the internet
and other mediums
of communication for which separate
offences can certainly be created by
legislation. o
Therefore, the challenge on the ground of Article 14 fails.
[Para 98] [1060-F-H; 1061-A]
9. Sections 95 and 96 of Cr.P.C. reveal a certain
degree
of sensitivity to the fundamental right to free E
speech and expression. Again, for offences in the nature
of promoting enmity between different groups on
grounds
of
religion etc. or offences relatable to deliberate
and malicious acts intending to outrage religious feelings
or statements that create or promote enmity, hatred or F
ill-will between classes, can only be taken cognizance
of by courts with the previous sanction of the Central
Government or the State Government. This procedural
safeguard does
not
apply even when a similar offence
may be committed over the internet where a person is G
booked under Section 66A. However, since Section 66A
has been
struck
down on substantive grounds, the
procedural unreasonableness aspect
of the Section,
need
not be decided. [Paras
100and101] [1061-H; 1063-
E-G) H
976 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 10.1 A statute cannot be dissected and then
examined as to under what field of legislation each part
would separately fall. The Kerala Police Act as a whole
and Section 118 as part thereof, falls in pith and
substance within Entry 2 List II, notwithstanding any
B incidental encroachment
that it may have made on any
other Entry in List
I. Even otherwise, the penalty created
for causing annoyance in an indecent manner in pith and
substance
would
fall within Entry 1 List Ill which speaks
of criminal law and would thus be within the competence
C
of the
State Legislature in any case. [Paras 104 and 105]
[1065-B, G-H]
10.2 Unders.118(d) ofKerala Police Act, causing
annoyance
in an indecent manner suffers from the same
·
D type of vagueness and over breadth, that led to the
invalidity
of
Section 66A of Information Technology Act
·and forthe reasons given for striking down Section 66A,
Section 11 S(d) also violates Article 19(1 )(a) and not being
a reasonable restriction on the said
right and not being
E saved
under any of the subject matters
contained in
Article 19(2)
is hereby declared to be unconstitutional. [Para 106] [1066-A-C] · ·
A.S. Krishna v. State of Madras (1957) S.C.R. 399 -
F relied on.
11.1Section69A unlike Section 66Ais a narrowly
drawn provision with several safeguards; First and
foremost, blocking can only be resorted to where the
G Central Government
is satisfied that it is necessary so
to do.
Secondly, such necessity is relatable only to some
of the subjects set out in Article 19(2). Thirdly, reasons
have
to be recorded in writing in such blocking order so
that they
may be assailed in a writ petition under Article
H
SHREYASINGHAL v. UNION OF INDIA 977
226 of the Constitution. [Para 109) [1068-F-G] A
11.2 The Information Technology (Procedure and
Safeguards
for
Blocking for Access of Information by
Public) Rules, 2009 further provide for procedural
safeguards. It is only after these procedural safeguards B
are met, that blocking orders are made and in case there
is a certified copy
of a court order,
only then can such
blocking order also be made. Merely because certain
additional safeguards such as those found in Section
95 and 96 CrPC are not
available, does not make the C
Rules constitutionally infirm. [Paras 109, 110 and 111)
[1068-H; 1069-A-C]
12.1 Section 79 is an exemption provision. Being
an exemption provision, it is closely related to provisions D
which provide
for offences
inch.iding Section 69A. Under
Section 69A blocking can take place only by a reasoned
order after complying with several procedural
· safeguards including a hearing to the originator and
intermediary. There are only two ways in which a E
blocking order can be passed -one by the Designated
Officer after complying with the 2009 Rules and the other
by the Designated Officer when
he has to
follow an order
passed by a competent court. The intermediary applying
its own mind to whether information should or should F
not be blocked, is noticeably absent in Section 69A read
with 2009 Rules. [Para 116) [1072-H; 1073-A-C]
12.2 Section 79{3)(b) has to be read down to mean
that the intermediary upon receiving actual knowledge G
that a court order has been passed asking it to
expeditiously remove or disable access to certain
material, must then fail to expeditiously remove or disable
access to that material. Also, the Court order and/or the
H
978 SUPREME COURT REPORTS [2015] 5 S.C.R.
A notification by the appropriate Government or its agency
must strictly conform to the subject matters laid down
in Article 19(2). Unlawful acts beyond what is laid down
in Article 19(2) obviously cannot form any part of Section
79. With these two caveats, Section 79(3)(b) is not struck
B down. [Para 117] [1073-C-F]
12.3 It is a common practice worldwide, for
intermediaries to have user agreements containing what
is stated in Rule 3(2) of Information Technology
C (Intermediary Guidelines) Rules, 2011. However, Rule 3(4)
of the 2011 Rules needs to be read down in the same
manner as Section 79(3)(b) of the Information
Technology. The knowledge spoken of, in the said sub
rule must only be through the medium of a court order.
D Subjectto this, the 2011 Rules are valid. [Para 118] [1073-
G-H; 1074-A]
12.4 Section 79 is valid subjectto Section 79(3)(b)
being read down to mean that
an intermediary upon
E receiving
actual knowledge from a court order or on
being notified by the appropriate Government
or its
agency that
unlawful acts relatable to Article 19(2) are
going to
be committed, and then
fails to expeditiously
remove or disable access to such material. Similarly, the
F 2011 Rules are valid subject to Rule 3 sub-rule (4) being
read down in the same manner
ass. 79(3)(b).
(Para 119]
[1074-D-F]
Case Law Reference
G
[1950) S.C.R. 594 referred to. Para 9
[1962) 3
S.C.R. 842 referred to.
Para 9
[1973] 2 S.C.R. 757 referred to. Para 9
2010 (5) SCR 322 referred to. Para 10
H
250 us 616 (1919) referred to. Para 11
SHREYASINGHAL v. UNION OF INDIA 979
71 L. Ed. 1095 referred to. Para 12 A
86 L. Ed. 1031 referred to. Para 16
1962 Supp. (3) S.C.R. 369 followed. Para 18
[1985] 2 SCR 287 referred to. Para 19
94 L. Ed. 925 referred to. Para 20
[1962] 3 SCR 842 relied on. Para 21 B
[1960] 2 S.C.R. 821 referred to. Para 22
[1950] S.C.R. 759 referred to. Para 23
[1952] S.C.R. 597 referred to. Para 24
[1970] 1 S.C.R. 156 referred to. Para 25
[1950] S.C.R. 519 referred to. Para 26
c
1995 (1) SCR 1036 relied on. Para 29
[1950] S.C.R. 594 referred to. Para 30
[1950] S.C.R. 605 referred to. Para 31
[1960] 2 S.C.R. 821 referred to. Para 33
D
[1966] 1 S.C.R. 709 referred to. Para 33
[1970] 3 S.C.R. 288 relied on. Para 34
63 L. Ed. 470 referred to. Para 36
250 U.S. 616 (1919) referred to. Para 37
93 L. Ed. 1131 (1949) referred to. Para 37
E
23 L. Ed. 2d 430 (1969) referred to. Para ~7
155 L. Ed. 2d 535 (2003) referred to. Para 37
1989 (2) SCR 204 referred to. Para 38
[1952] S.C.R. 654 relied on. Para 39
[1957) S.C.R. 860 relied on. Para 40 F
1962 Supp. (2) S.C.R. 769 relied on. Para 40
1995 (6) Suppl. SCR 371 relied on. Para 40
[1965] 1 S.C.R. 65 relied on. Para 45
2006 (5) Suppl. SCR 403 relied on. Para 45
2014 (4) sec 257 relied on. Para 45 G
92 L. Ed. 562 referred to. Para 52
92 L. Ed. 840 referred to. Para 53
96
L. Ed.
1098 referred to. Para 54
527 U.S. 41 (1999) referred to. Para 55
33 L.Ed. 2d. 222 referred to. Para 57 H
980 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 521 U.S. 844 (1997) referred to. Para 60
132 S.Ct. 2307 relied on. Para 63
[1961] 1 S.C.R. 970 relied on. Para 64
[1971] 2 S.C.R. 446 relied on. Para 65
1970 (1) SCR 479 relied on. Para 66
B 1994 (2) SCR 375 relied on. Para 67
1994 (2) SCR 375 relied on. Para 68
2004 (3) SCR 692 held
inapplicable. Para 77
2010 (4) SCR 1042 held
c
inapplicable. Para 77
2003 (2) Suppl. SCR 727 held inapplicable.
Para 78
(2006) 1 WLR 2223 referred to. Para 79
D
[2013] 1 W.L.R.1833 referred to. Para 80
1994 (4) Suppl. SCR 353 relied on. Para 83
2010 (5) SCR 322 relied on. Para 84
521 U.S. 844 (1997) relied on. Para 85
1995 (1) SCR 1036 relied on. Para 86
E
[1962] Supp. 2 S.C.R. 769 relied on. Para 86
[1960] 2 S.C.R. 821 followed. Para 86
1962 Supp. (3) S.C.R. 369 followed. Para 87
[1962] 3 S.C.R. 786 referred to. Para 88
[1950] S.C.R. 594 relied on. Para 91
F
[1957] S.C.R. 930 distinguished. Para 94
[1957] S.C.R. 399 relied on. Para 95
CRIMINAL I CIVIL ORIGINAL JURISDICTION:Writ
Petition (Criminal) No. 167 of2012
G Under Article 32 of the Constitution of India.
WITH
W.P.(C) Nos. 21, 23, 97 and 217, 222 of2013;
W.P.(Crl.) Nos. 199, 222 and 225 of2013;
H
W.P.(C) Nos.758 of
2014;
SHREYASINGHAL v. UNION OF INDIA 981
and W.P.(Crl.) N0.196 of 2014 A
P. S. Narasimha, ASG, Soli Sorabjee, Sajan Poovayya,
Gaurav Bhatia, AAG, Manali Singhal, Ranjeeta Rohtagi, Ninad
Laud, Jaya Khanna,Abhikalp, Pratap Singh, Mehernaz Mehta,
Gursimran Dhillon, Karan Mathur, Santosh Sachin, Gaurav
8
Srivastava, Deepak Rawat, Sarvjeet Singh, Sanjay Parikh,
Karuna Nundy, Apar Gupta, Mamta Saxena, Ritwik Parikh, AN.
Singh, Pukhramban Ramesh Kumar, Prashant Bhushan,
Pranav Sachdeva, Neha Rathi, Priyadarshi Banerje, Sumit
Attri, Praveen Sehrawat, Sujoy Chatterjee, E. C. Agrawala, c
Krishan Kumar, Abhay Nagvai, Biju K. Nair, Shagun Belwal
(for Lawyer's Knit & Co), Liz Mathew, M.F. Philip, Kush
Chaturvedi, Saikrishna Rajagopal, J. Sai Deepak, Savni Dutt,
Tanya Shree, Rachel Mamatha, Tanya, Abhinav Mukerji, Renjith
8. Marar, Lakshmi N. Kaimal, Rajat Nair, Shanelle Irani, Rohan D
Jaitley, Nalin Kohli, Pujitha Gorantla, Nivedita Nair, Vakul
Sharma, Saumya, Rashmi Malhotra, Ajay Sharma, Gaurav
. Sharma, S.S. Rawat, D. S. Mahra, Abhishek Chaudhary,
Utakarsh Jaiswal, Sapam Biswajit Meitei, L.H. Issac Haiding,
Ashok Kumar Singh,
D. Mahesh Babu,
V. G. Pragasam, S.J. E
Aristotle, Prabu Rama Subramanian, Mohit D. Ram, Ravi
Prakash Mehrotra, Kunal A. Cheema, Anirudda P. Mayee,
Charudatta, Selvin Raja, Asha Gopalan Nair, Anip Sachthey,
Saakar Sardana, Surabhi Sardana, V. Shyamohan, Chaitali
Y. Dhinoja, Shreyas Mehrotra, Abhishek Kumar, A.S. F
Vishwajith, Vishwa Pal Singh, P. Venkat Reddy, Sumanth
Nookala (for Palwai Venkat Law Associates), Guntur
Prabhakar, Prerna Singh, Ram Sankar, G. Ananda Selvam,
Mayilsamy K, R. V. Kameshwaran, Subail Farrukh,Abhimanyu
Chopra, Priya Puri, Ranjay Kr. Dubey, Gireesh Kumar, Sriram G
P, Vijay Kumar, Dr. NafisA. Siddiqui forthe appearing parties.
The Judgment
of the Court was
delivered by
R.
F. NARIMAN, J. 1. This batch of writ petitions filed H
982 SUPREME COURT REPORTS [2015] 5 S.C.R.
A under Article 32 of the Constitution of India raises very important
and far-reaching questions relatable primarily to the
fundamental right of free speech and expression guaranteed
by Article 19(1 )(a) of the Constitution of India. The immediate
cause for concern in these petitions is Section 66A of the
B Information Technology Act of 2000. This Section was not in
the Act as originally enacted, but came into force by virtue of
an Amendment Act of 2009 with effect from 27 .10.2009. Since
all the arguments raised by several counsel for the petitioners
deal with the unconstitutionality of this Section it is set out
C hereinbelow:
"66-A. Punishment for sending offensive messages
through communication service, etc:.-Any person
who sends, by means of a computer resource or a
D communication device,-·
(a) any information that is grossly offensive or has
menacing character; or
E (b) any information which he knows to be false, but for
the purpose of causing annoyance, inconvenience,
danger, obstruction, insult, injury, criminal intimidation,
enmity, hatred or ill will, persistently by making use of
such computer resource or a communication device;
F or
( c) any electronic mail or electronic mail message for
the purpose of causing annoyance or inconvenience
or to deceive or to mislead the addressee or recipient
G about the origin of such messages,
shall be punishable with imprisonment for a term which
may extend to three years and with fine.
Explanation.-For the purposes of this section, terms
H "electronic mail" and "electronic mail message" means
SHREYASINGHAL v. UNION OF INDIA [R. F. NARI MAN, J.] 983
a message or information created or transmitted or A
received on a computer, computer system, computer
resource or communication device including attachments
in text, image, audio, video and any other electronic
record, which may be transmitted with the message."
1
2. A related challenge is also made to Section 69A
introduced by the same amendment which reads as follows:-
B
1
· The genealogy of this Section may be traced back to Section 10(2)(a) of the U.K. Post
Office (Amendment) Act, 1935, which made it an offence to send any message by C
telephone which is grossly offensive or of an indecent, obscene, or menacing character.
This Section was substantially reproduced by Section 66 of the UK Post Office Act,
1953 as follows:
66. Prohibition of sending offensive or false telephone messages or false
telegrams, etc.
If any person -
(a)sends any message by telephone which
is grossly offensive or of an indecent,
obscene or menacing character ;
(b)sends any message by telephone, or any telegram, which he knows
to be false, for
the· purpose of causing annoyance, inconvenience or needless anxiety to any other
person ; or
(c)persistently makes telephone calls without reasonable cause and for any such
purpose as aforesaid,
he
shall be liable on summary conviction to a fine not exceeding ten pounds, or to
imprisonment for a term not exceeding
one month, or to both.
This
Section in turn was replaced by Section 49 of the British Telecommunication Act,
1981 and Section 43 of the British Telecommunication Act, 1984. In its present form in
the UK, it is Section 127 of the Telecommunication Act, 2003 which is relevant and
which is as follows:-
127. Improper use of public electronic communications network
(1) A person is guilty of an offence if he -
(a) sends by means
of a public electronic communications network a
messaQI' or
other matter that is grossly offensive or of
an indecent, obscene or menacing character;
or
(b) cause any such message or matter to be so sent.
(2) A person is guilty
of an offence if, for the purpose of causing annoyance,
inconvenience or needless anxiety
to another, he-
. (a) sends by means
of a public electronic communications network, a message that he
knows to be false,
(b) causes such a message
to be sent; or
(c) persistently makes use of a public electronic communications network.
(3)A person guilty of
an offence under this section
shall be liable, on summary conviction,
to imprisonment for a term not exceeding six months or to a fine not exceeding level 5
on the standard scale, or to both.
(4) Subsections
(1) and (2) do not
apply to anything done in the course of providing
a programme service (within the meaning
of the Broadcasting Act 1990 (c.42)).
D
E
F
G
H
984
A
B
c
D
E
F
SUPREME COURT REPORTS [2015] 5 S.C.R.
"69-A. Power to issue directions for blocking for
public access of any information through any
computer
resource.-(1) Where the
Central
Government or any of its officers specially authorised by
it in this behalf is satisfied that it is necessary or expedient
so to do, in the interest of sovereignty and integrity of
India, defence of India, security of the State, friendly
relations with foreign States or public order or for
preventing incitement to the commission of any
cognizable offence relating to above, it may subject to
the provisions of sub-section (2), for reasons to be
recorded in writing, by order, direct any agency of the
Government or intermediary to block for access by the
public or cause to be blocked for access by the public
any information generated, transmitted, received, stored
or hosted in any computer resource.
(2) The procedure and safeguards subject to which such
blocking for access by the public may be carried out,
shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction
issued under sub-section (1) shall be punished with an
imprisonment for a term which may extend to seven years
and shall also be liable to fine."
3. The Statement of Objects and Reasons appended
to the Bill which introduced the Amendment Act stated in
paragraph 3 that:
G "3. A rapid increase in the use of computer and internet
has given rise to new forms of crimes like publishing
sexually explicit materials in electronic form, video
voyeurism and breach of confidentiality and leakage of
data by intermediary, e-commerce frauds like
H personation commonly known as Phishing, identity theft
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 985
and offensive messages through communication A
services. So, penal provisions are required to be
included in the Information Technology Act, the Indian
Penal code, the Indian Evidence Act and the code of
Criminal Procedure to prevent such crimes."
4. The petitioners contend that the very basis of Section
66A -that it has given rise to new forms of crimes -is incorrect,
and that Sections 668 to 67C and various Sections of the
Indian Penal Code (which will be referred to hereinafter) are
B
good enough to deal with all these crimes. C
5. The petitioners' various counsel raised a large
number of points as to the constitutionality of Section 66A.
According to them, first and foremost Section 66A infringes
the fundamental right to free speech and expression and is o
not saved by any of the eight subjects covered in Article 19(2).
'
According to them, the causing of annoyance, inconvenience,
danger, obstruction, insult, injury, criminal intimidation, enmity,
hatred or ill-will are all outside the purview of Article 19(2).
Further, in creating an offence, Section 66Asuffers from the E
vice of vagueness because unlike the offence created by
Section 66 of the same Act, none of the aforesaid terms are
even attempted to be defined and cannot be defined, the result
being that innocent persons are roped in as well as those who
are not. Such persons are not told clearly on which side of the F
line they fall; and it would be open to the authorities to be as
arbitrary and whimsical as they like in booking such persons
under the
said Section.
In fact, a large number of innocent
persons
have been booked and many instances have been
given in the form of a note to the Court. The enforcement of G
the said
Section would really be an insidious form of censorship
which impairs a core value contained in Article 19(1 )(a). In
addition, the said Section has a chilling effect on the freedom
of speech and expression. Also, the right of viewers is infringed H
986 SUPREME COURT REPORTS [2015] 5 S.C.R.
A as such chilling effect would not give them the benefit of many
shades of grey in terms of various points of view that could be
viewed over the internet.
The petitioners also contend that their rights under
B Articles 14 and 21 are breached inasmuch there is no
intelligible differentia between those who use the internet and
those who by words spoken or written use other mediums of
communication.
To punish somebody because he uses a particular medium of communication is itself a discriminatory
C object and would fall foul of Article 14 in any case.
6. In reply, Mr. Tushar Mehta, learned Additional Solicitor
General defended the constitutionality of Section 66A. He
argued that the legislature is in the best position to understand
o and appreciate the needs of the people. The Court will,
therefore, interfere with the legislative process only when a
statute is clearly violative of the rights conferred on the citizen
under Part-Ill of the Constitution. There is a presumption in
favour of the constitutionality of an enactment. Further, the Court
E would so construe a statute to make it workable and in doing
so can read into it or read down the provisions that are
impugned. The Constitution does not impose impossible
standards of determining validity. Mere possibility of abuse of
a
provision cannot be a ground to
declare a provision invalid.
F Loose language may have been used in Section 66A to deal
with novel methods of disturbing other people's rights by using
the internet as a tool to do so. Further, vagueness is not a
ground to declare a statute unconstitutional if the statute is
otherwise legislatively competent and non-arbitrary. He cited
G a large number of judgments before us both from this Court
and from overseas to buttress his submissions.
Freedom of Speech and Expression
H Article 19(1 )(a) of the Constitution of India states as follows:
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 987
"Article 19. Protection of certain rights regarding A
freedom of speech, etc.-( 1) All citizens shall have the
right-
( a) to freedom of speech and expression;"
7. Article 19(2) states:
"Article 19. Protection of certain rights regarding
freedom of speech, etc.-, (2) Nothing in sub-clause (a)
of clause (1) shall affect the operation of any existing law,
or prevent the State from making any law, in so far as
such law imposes reasonable restrictions on the exercise
of the right conferred by the said sub-clause in the
interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States,
public order, decency or morality or in relation to contempt
of court, defamation or incitement to an offence."
B
c
D
8. The Preamble of the Constitution of India inter a/ia
speaks of liberty of thought, expression, belief, faith and
worship. It also says that India is a sovereign democratic E
republic. It cannot be over emphasized that when it comes to
democracy, liberty of thought and expression is a cardinal value
that is of paramount significance under our constitutional
scheme.
9. Various judgments of this Court have referred to the
importance of freedom of speech and expression both from
F
the point of view of the liberty of the individual and from the
point of view of our democratic form of government. For
example, in the early case of Romesh Thappar v. State of G
Madras, (1950] S.C.R. 594 at 602, this Court stated that
freedom .of speech lay at the foundation of all democratic
organizations. In Sakal Papers (P) Ltd. & Ors. v. Union of
India, [1962] 3 S.C.R. 842 at 866, a Constitution Bench of H
988 SUPREME COURT REPORTS [2015] 5 S.C.R.
A this Court said freedom of speech and expression of opinion
is of paramount importance under a democratic constitution
which envisages changes in the composition of legislatures
and governments and must be preserved. In a separate
concurring judgment Beg,J. said, in Bennett Coleman & Co.
B & Ors. v. Union of India & Ors., (1973] 2 S.C.R. 757 at 829,
that the freedom of speech and of the press is the Ark of the
Covenant of Democracy because public criticism is essential
to the working of its institutions.
2
C 10. Equally, in 5. Khushboo v. Kanniamal & Anr.,
(2010) 5 SCC 600 this Court stated, in paragraph 45 that the
importance of freedom of speech and expression though not
absolute was necessary as we need to tolerate unpopular
views. This tight requires the free flow of opinions and ideas
D essential to sustain the collective life of the citizenry. While an
informed citizenry is a pre-condition for meaningful governance,
the culture of open dialogue is generally of great societal
importance.
E 11. This last judgment is important in that it refers to the
F
"market place of ideas" concept that has permeated American
Law. This was put in the felicitous words of Justice Holmes in
his famous dissent in Abrams v. United States, 250 US 616
(1919), thus:
"But when men have realized that time has upset many
fighting faiths, they may come to believe even more than
they believe the very foundations of their own conduct
that
the
ultimate good desired is better reached by free
G trade
in ideas-that the best test of truth is the power of
'
Incidentally, the Ark of the Covenant is perhaps the single most important
focal point in Judaism. The original ten commandments which the Lord himself
gave to Moses was housed in a wooden chest which was gold plated and called the
Ark of the Covenant
and carried by the Jews from
place to place until it found its final
H repose in the first temple -that is the temple built by Solomon.
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 989
thought to get itself accepted in the competition of the A
market, and that truth is the only ground upon which their
wishes safely can be carried out. That at any rate is the
theory of our Constitution."
12. Justice Brandeis in his famous concurring judgment B
in Whitney v. California, 71 L. Ed. 1095 said:
"Those who won our independence believed that the final
end of the state was to make men free to develop their
faculties,
and that in its government the deliberative
forces
should prevail over the arbitrary. They valued liberty
both as an end and as a means. They believed liberty to
be the secret of happiness and courage to be the secret
of liberty. They believed that freedom to think as you will
and to speak as you think ar_e means indispensable to
the discovery and spread of political truth; that without
free speech
and
assembly discussion would be futile;
that with them, discussion affords ordinarily adequate
protection against the dissemination of noxious doctrine;
that the greatest menace to freedom is an inert people;
that public discussion is a political duty; and that this
should be a fundamental principle of the American
government. They recognized the risks to which all human
institutions are subject. But they knew that order cannot
be secured merely through fear of punishment for its
infraction; that it is hazardous to discourage thought, hope
and imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity
to discuss freely supposed grievances and proposed
remedies; and that the fitting remedy for evil counsels is
good ones. Believing in the power of reason as applied
through public discussion, they eschewed silence
coerced by law-the argument of force in its worst form.
c
D
E
F
G
H
990
A
B
c
D
E
F
G
SUPREME COURT REPORTS [2015] 5 S.C.R.
Recognizing the occasional tyrannies of governing
majorities, they
amended the Constitution so that free
speech and assembly should be guaranteed.
Fear of serious injury cannot alone justify suppression of
free speech and assembly. Men feared witches and burnt
women.
It is the function of speech to free men from the
bondage of irrational fears. To justify suppression of free
speech there must be reasonable ground to fear that
serious evil will result if free speech is practiced. There
must be reasonable ground to believe that the danger
apprehended is imminent. There must be reasonable
ground to believe that the evil to be prevented is a serious
one. Every denunciation of existing law tends in some
measure to increase the probability that there will be
violation of it. Condonation of a breach enhances the
probability. Expressions of approval add to the
probability. Propagation of the criminal state of mind by
teaching syndicalism increases it. Advocacy of
lawbreaking heightens it still further. But even advocacy
of violation, however reprehensible morally, is not a
justification for denying free speech where the advocacy
falls short of incitement and there is nothing to indicate
that the advocacy would be immediately acted on. The
wide difference between advocacy and incitement,
between preparation and attempt, between assembling
and conspiracy, must be borne in mind. In order to support
a finding of clear and present danger it must be shown
either that immediate serious violence was to be
expected or was advocated, or that the past conduct
furnished reason to believe that such advocacy was then
contemplated." (at page 1105, 1106)
13. This leads us to a discussion of what is the content
H of the expression "freedom of speech and expression". There
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 991
are three concepts which are fundamental in understanding A
the reach of this most basic of human rights. The first is
discussion, the second is advocacy, and the third is incitement.
Mere discussion or even advocacy of a. particular cause
howsoever unpopular is at the heart of Article 19(1 )(a). It is
only when such discussion or advocacy reaches the level of B
incitement that Article 19(2) kicks in.
3
It is at this stage that a
law may be made curtailing the speech or expression that
leads inexorably to or tends to cause public disorder or tends
to cause or tends to affect the sovereignty & integrity of India,
the security of the State, friendly relations with foreign States, C
etc. Why it is important to have these three concepts in mind
is because most of the arguments of both petitioners and
respondents tended to veer around the expression "public
order".
D
3
· A good example of the difference between advocacy and incitement is Mark Ant011y's
speech in Shakespeare's immortal classic Julius Caesar. MarkAntony begins cautiously.
Brutus is chastised for calling Julius Caesar ambitious and is repeatedly said to be an
"honourable man". He then shows the crowd Caesar's mantle and describes who
struck Caesar where. It is at this point, after the interjection of two citizens from the
crowd, that Antony says-
"ANTONY-Good friends, sweet friends, let me not stir you up E
To such a sudden flood of mutiny.
They that have done this deed are honourable:
What private griefs they have, alas, I know not,
That made them do it: they are wise and honourable,
And will, no doubt, with reasons answer you.
I come not, friends, to steal away your hearts:
I am no orator, as Brutus is; F
But, as you know me all, a plain bluntman,
That love my friend; and that they know full well
That gave me public leave to speak of him:
For I have neither wit, nor words, nor worth,
Action, nor utterance, nor the power
of speech,
To stir men's
blood: I only speak right on;
I tell you that which you yourselves do know; G
Show you sweet Caesar's wounds, poor poor dumb mouths,
And bid them speak for me: but were I Brutus,
And Brutus Antony, there were
an Antony Would ruffle up your spirits and put a tongue
In every wound of Caesar that should move
The stones
of Rome to rise and mutiny.
ALL-
We'll mutiny." H
992 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 14. It is at this point that a word needs to be said about
B
the use of American judgments in the context of Article 19(1 )(a).
In virtually every significant judgment of this Court, reference
has been made to judgments from across the Atlantic. Is it
safe to do so?
15. It is significant to notice first the differences between
the US FirstAmendmentandArticle 19(1)(a) read withArticle
19(2). The first important difference is the absoluteness of the
U.S. first Amendment- Congress shall make no law which
C abridges the freedom of speech. Second, whereas the U.S.
First Amendment speaks of freedom of speech and of the
press, without any reference to "expression'', Article 19(1 )(a)
speaks of freedom of speech and expression without any
reference to "the press". Third, under the US Constitution,
D
speech may be abridged, whereas under our Constitution, reasonable restrictions may be imposed. Fourth, under our
Constitution such restrictions have to be in the interest of eight
designated subject matters -that is any law seeking to impose
a restriction on the freedom of speech can only pass muster if
E it is proximately related to any of the eight subject matters set
out in Article 19(2).
16. Insofar as the first apparent difference is concerned,
the U.S. Supreme Court has never given literal effect to the
F declaration that Congress shall make no law abridging the
freedom of speech. The approach of the Court which is
succinctly stated in one of the early U.S. Supreme Court
Judgments, continues even today. In Chaplinsky v. New
Hampshire,
86 L. Ed.
1031, Justice Murphy who delivered
G
the opinion of the Court put it thus:-
"Allowing the broadest scope to the language and
purpose of the Fourteenth Amendment, it is well
understood that the right of free speech is not absolute
H at all times and under all circumstances. There are
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 993
certain well-defined and narrowly limited classes of
speech, the prevention and punishment of which has
never been thought to raise any Constitutional
problem. These include the lewd and obscene, the
profane, the libelous, and the insulting or 'fighting'
words-those which by their very utterance inflict injury
or tend to incite an immediate breach
of the peace.
It
has been well observed that such utterances are no
essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that
may be derived from them
is
clearly outweighea by the
social interest in order and morality. 'Resort to epithets
or personal abuse is not in any proper sense
communication of information or opinion safeguarded
by the Constitution, and its punishment as a criminal act
would raise no question under that instrument.' Cantwell
v. Connecticut, 310 U.S. 296, 309, 310, 60 S.Ct. 900,
906, 84 L.Ed.1213, 128A.L.R. 1352.'' (at page 1035)
A
B
c
D
17. So far as the second apparent difference is
concerned,
the American
Supreme Court has included E
"expression" as part of freedom of speech and this Court has
included "the press" as being covered under Article 19(1)(a),
so that, as a matter
of
judicial interpretation, both the US and
India protect the freedom of speech and expression as well F
as press freedom. Insofar as abridgement and reasonable
restrictions are concerned, both the U.S. Supreme Court and
this Court have held that a restriction in order to be reasonable
must be narrowly tailored or narrowly interpreted so as to
abridge or restrict only what is absolutely necessary. It is only G
when it comes to the eight subject matters that there is a vast
difference. In the U.S., if there is a compelling necessity to
achieve an important governmental or societal goal, a law
abridging freedom of speech may pass muster. But in India,
such law cannot pass muster if it is in the interest of the general H
994 SUPREME COURT REPORTS [2015] 5 S.C.R.
A public. Such law has to be covered by one of the eight subject
matters set out under Article 19(2). If it does not, and is outside
the pale of 19(2), Indian courts will strike down such law.
18. Viewed from the above perspective, American
s judgments have great persuasive value on the content of
freedom of speech and expression and the tests laid down for
its infringement. It is only when it comes to sub-serving the
general public interest that there is the world of a difference.
This
is perhaps why in Kameshwar
Prasad & Ors. v. The
C State ofBihar&Anr., 1962 Supp. (3) S.C.R. 369, this Court
held:
D
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G
"As regards these decisions of the American Courts, it
should be borne in mind that though the First Amendment
to the Constitution of the United State reading "Congress
shall make no law .... abridging the freedom of speech ... "
appears to confer no power on the Congress to impose
any restriction on the exercise of the guaranteed right,
still it has always been understood that the freedom
guaranteed
is subject to the
police power -the scope of
which however
has not been defined with precision or uniformly. It is on the basis of the police power to abridge
that freedom that the constitutional validity of laws
penalising libels, and those relating to sedition, or to
obscene publications etc., has been sustained. The
resultant flexibility of the restrictions that could be validly
imposed renders the American decisions inapplicable
to and without much use for resolving the questions
arising under
Art. 19(1) (a) or (b) of our Constitution
wherein the grounds on which limitations might be placed
on the guaranteed right are set out with definiteness and
precision." (At page 378)
19. But when it comes to understanding the impact and
H content of freedom of speech, in
Indian Express
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 995
Newspapers (Bombay) Private Limited & Ors. v. Union A
of India & Ors., (1985) 2 SCR 287, Venkataramiah,J. stated:
"While examining the constitutionality of a law which is
alleged to contravene Article 19 (1) (a) of the Constitution,
we cannot, no doubt, be solely guided by the decisions B
of the Supreme Court of the United States of America.
But in order to understand the basic principles of freedom
of speech and expression and the need for that freedom
in a democratic country, we may take them into
consideration.
The pattern of Article 19 (1) (a) and of
· C
Article 19 (1) (g) of our constitution is different from the
pattern
of the First Amendment to the American
Constitution which
is
almost absolute in its terms. The
rights guaranteed under Article 19 (1) (a) and Article 19
(1) (g) of the Constitution are to be read. along with D
clauses
(2) and (6) of Article 19 which carve out areas in
respect of which
valid legislation can be made." (at page
324)
20. With these prefatory remarks, we will now go to the E
other aspects of the challenge made in these writ petitions
and argued before us.
A.Article 19(1)(a)-
Section 66A has been challenged on the ground that it
casts the net very wide-"all information" that is disseminated
over
the internet is included within its reach.
It will be useful to
note that Section 2(v) of Information Technology Act, 2000
defines information as follows:
"2. Definitions.-(1) In this Act, unless the context
otherwise requires,-
(v)
"Information" includes data, message, text, images,
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sound, voice, codes, computer programmes, software H
996 SUPREME COURT REPORTS [2015J 5 S.C.R.
A and databases or micro film or computer generated
micro fiche."
Two things will be noticed. The first is that the definition
is an inclusive one. Second, the definition does not refer to
B what the content of information can be. In fact, it refers only to
the medium through which such information is disseminated.
It is clear, therefore, that the petitioners are correct in saying
• that the public's right to know is directly affected by Section
66A. Information of all kinds is roped in -such information
C may have scientific, literary or artistic value, it may refer to
current events, it may be obscene or seditious. That such
information may cause annoyance or inconvenience to some
is how the offence is made out. It is clear that the right of the
people to know-the market place of ideas -which the internet
D provides to persons of all kinds is what attracts Section 66A.
That the information sent has to be annoying, inconvenient,
grossly offensive
etc., also shows that no distinction is made
between mere discussion or advocacy of a particular point of
view which
may be annoying or inconvenient or grossly
E offensive
to some and incitement by which such words lead to
an imminent causal connection with public disorder, security
of
State etc. The petitioners are right in saying that Section
66A in creating an offence against persons who use the internet
F and annoy or cause inconvenience to others very clearly affects
the freedom of speech and expression of the citizenry of India
at large in that such speech or expression is directly curbed
by the creation of the offence contained in Section 66A.
In this regard, the observations of Justice Jackson in
G American Communications Association v. Douds, 94 L.
Ed. 925 are apposite:
"Thought control is a copyright of totalitarianism, and we
have no claim to it. It is not the function of our Government
H to keep the citizen from falling into error; it is the function
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 997
. '
of the citizen to keep the Government from falling into A
B.
error. We could justify any censorship only when the
censors are better shielded against error than the
censored."
Article 19(2) B
One challenge to Section 66A made by the petitioners'
counsel is that the offence created by the said Section has no
proximate relation with any of the eight subject matters
contained in Article 19(2). We may incidentally mention that c
the State has claimed that the said Section can be supported
under the heads of public order, defamation, incitement to an
offence and decency or morality.
""-.
21. Under our constitutional scheme, as stated earlier,
0
it is not open to the State to curtail freedom of speech to
promote the general public interest. In Sakal Papers (P) Ltd.
& Ors. v. Union of India, (1962] 3 S.C.R. 842, this Court said:
"It may well be within the power of the State to place, in
the interest of the general public, restrictions upon the
right of a citizen to carry on business but it is not open to
the State to achieve this object by directly and
immediately curtailing any other freedom of that citizen
guaranteed by the Constitution and which is not
susceptible of
abridgment on the same grounds as are
set out in
clause (6) of Article 19. Therefore, the right of
freedom of speech cannot be taken away with the object
of placing restrictions on the business activities of a
citizen. Freedom of speech can be restricted only in the
interests of the security of the State, friendly relations with
foreign State, public order, decency or morality or in
relation to contempt of court, defamation or incitement
to an offence. It cannot, like the freedom to carry on
business, be curtailed in the interest of the general public.
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If a law directly affecting it is challenged, it is no answer
that the restrictions enacted by it are justifiable under
clauses (3) to (6). For, the scheme of Article 19 is to
enumerate different freedoms separately and then to
specify the extent of restrictions to which they may be
subjected and the objects for securing which this could
be done. A citizen is entitled to enjoy each and every one
of the freedoms together and clause ( 1) does not prefer
one freedom to another. That is the plain meaning of this
clause. It follows from this that the State cannot make a
law which directly restricts one freedom even for securing
the better enjoyment of another freedom. All the greater
reason, therefore for holding that the &~te cannot directly
restrict one freedom by placing an otherwise permissible
restriction on another freedom." (at page 863)
22. Before we come to each of these expressions, we
must understand what is meant by the expression "in the
interests of". In The Superintendent, Central Prison,
Fatehgarh
v. Ram Manohar Lohia, [1960] 2
S.C.R. 821, this
E Court laid down:
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"We do not understand the observations of the Chief
Justice to mean that any remote or fanciful connection
between the impugned Act and the public order would
be sufficient to sustain its validity. The learned Chief
Justice was only making a distinction between an Act
which expressly and directly purported to maintain public
order and one which did not expressly state the said
purpose but left it to be implied there from; and between
an Act that directly maintained public order and that
indirectly brought about the same result. The distinction
does not ignore the necessity for intimate connection
between the Act and the public order sought to be
maintained by the Act." (at pages 834, 835)
SHREYASINGHAL v. UNION OF INDIA[R. E NARI MAN, J.] 999
'The restriction made "in the interests of public order"
must also have reasonable. relation to the object to be
achieved, i.e., the public order. If the restriction has no
proximate relationship to the achievement of public order,
it cannot be said that the restriction is a reasonable
restriction within the meaning of the said clause." (at page
835)
"The decision, in our view, lays down the correct test.
The limitation imposed in the interests of public order to
be a reasonable restriction, should be one which has a
proximate connection or nexus with public order, but not
one far-fetched, hypothetical or problematical or too
remote in the chain of its relation with the public
order .......... There is no proximate or even foreseeable
connection between such instigation and the public order
sought to be protected under section. We cannot accept
the argument of the learned Advocate General that
instigation of a
single individual not to pay tax or dues is
a spark which may in the
long run ignite a revolutionary
movement destroying public order'' (at page 836).
Reasonable Restrictions:
A
B
c
D
E
23. This Court has
laid down what "reasonable
restrictions"
means in several cases.
In Chintaman Rao v. F
The State of Madhya Pradesh, [1950] S.C.R. 759, this Court
said:
"The phrase "reasonable restriction" connotes that the
limitation imposed on a person in enjoyment of the right G
should not be arbitrary or of an excessive nature, beyond
what is required in the interests of the public. The word
"reasonable" implies intelligent care and deliberation,
that
is, the choice of a course which reason dictates.
Legislation
which arbitrarily or excessively invades the H
1000 SUPREME COURT REPORTS [2015] 5 S.C.R.
A right cannot be said to contain the quality of
reasonableness
and
unless it strikes a proper balance
between the freedom guaranteed in article 19(1 )(g) and
the social control permitted by clause (6) of article 19, it
B
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must be
held to be wanting in that quality." (at page 763)
24. In State of Madras v. V.G. Row, [1952] S.C.R. 597,
this Court said:
"This Court had occasion in Dr. Khare's case (1950)
S.C.R. 519todefinethe scope of the judicial review under
clause (5) of Article19 where the phrase "imposing
reasonable restriction on the exercise of the right" also
occurs and four out of the ftve JudgP.i: rarticipating in the
decision expressed the view (the other Judge leaving
the question open) that both the substantive and the
procedural aspects of the impugned restrictive law should
be examined from the point of view of reasonableness;
that is to say, the Court should consider not only factors
such as the duration and the extent of the restrictions,
but also the circumstances under which and the manner
in which their imposition has been authorised. It is
important in this context to bear in mind that the test of
reasonableness,
where ever prescribed, should be applied to each, individual statute impugned and no
abstract standard, or general pattern of reasonableness
can be laid down as applicable to all cases. The nature
of
the right
alleged to have been infringed, the underlying
purpose of the restriction imposed, the extent and
urgency of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing conditions
at the time, should all enter into the judicial verdict. In
evaluating such elusive factors and forming their own
conception of what is reasonable, in all the circumstances
of a given case, it is inevitable that the social philosophy
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1001
and the scale of values of the judges participating in the
decision should play an important part, and the limit to
their interference with legislative judgment in such cases
can only be dictated by their sense of responsibility and
self-restraint and the sobering reflection that the
Constitution
is meant not
only for people of their way of
thinking but for all, and that the majority of the elected
representatives of the people have, in authorising the
imposition of the restrictions, considered
them to be reasonable." (at page 606-607)
25. Similarly, in Mohd. Faruk v. State of Madhya
Pradesh & Ors., [1970] 1 S.C.R. 156, this Court said:
''The Court must
in considering the
validity of the
impugned law imposing a prohibition on the carrying on
of a business or profession, attempt an evaluation of its
direct and immediate impact upon the fundamental rights
of the citizens affected thereby and the larger public
interest sought to be ensured in the light of the object
sought
to be achieved, the necessity to restrict the
citizen's freedom, the inherent pernicious nature of the
act prohibited or
its capacity or tendency to be
harmful
to the general public, the possibility of achieving the
object
by imposing a
less drastic restraint, and in the
absence of exceptional situations such as the prevalence
of a state of emergency-national or local-or the necessity
to maintain essential supplies, or the necessity to stop
activities inherently dangerous, the existence of a
machinery
to satisfy the administrative authority that no
case for imposing the restriction is made out or that a less drastic restriction may ensure the object intended
to be achieved." (at page 161)
A
B
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26.
In Dr. N. B. Kharev. State of Delhi, [1950) S.C.R.
519, a Constitution Bench also spoke of reasonable H
1002 SUPREME COURT REPORTS [2015) 5 S.C.R. .
A restrictions when it comes to procedure. It said:
"While the reasonableness of the restrictions has to be
considered with regard to the exercise of the right, it does
not necessarily exclude from the consideration of the
B
Court the question of reasonableness of the
procedural
part of the law. It is obvious that if the law prescribes five
years externment or ten years externment, the question
whether
such period of externment is
reasonable, being
the substantive part, is necessarily for the consideration
C of
the court under
clause (5). Similarly, if the law provides
the procedure under which the exercise of the right may
be restricted, the same is also for the consideration of
the
Court, as it has to determine if the exercise of the
D
' right has been
reasonably restricted." (at page 524)
27. It was argued by the learned Additional Solicitor
General that a relaxed standard of reasonableness of
restriction should apply regard being had to the fact that the
medium of speech being the internet differs from other
E mediums
on
several grounds. To appreciate the width and
scope of his submissions, we are setting out his written
submission verbatim:yp
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"(i) the reach of print media is restricted to one state or
at the most one country while internet has no boundaries
and its reach is global;
(ii) the recipient of the free speech and expression used
in a print media can only be literate persons while internet
can be accessed by literate and illiterate both since one
click is needed to download an objectionable post or a
video;
(iii) In case of televisions serials [except live shows] and
movies, there is a permitted pre-censorship' which
SHREYASlNGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1003
ensures right of viewers not to receive any information A
which is dangerous to or not in conformity with the social
interest. While in the case of an internet, no such pre
censorship
is possible and each individual is publisher,
printer, producer, director and broadcaster of the content
without any statutory regulation; B
(iv)
In case of print media or medium of television and
films whatever is truly recorded can only be published or
broadcasted I televised I viewed. While in case of an
internet, morphing of images, change of voices and many
other technologically advance methods to create serious
potential social disorder can be applied.
(v) yp By the medium of internet, rumors having a serious
potential of creating a serious social disorder can be
spread to trillions of people without any check which is
not possible in case of other mediums.
(vi) In case of mediums like print media, television and
films, it is broadly not possible to invade privacy of
unwilling persons. While in case of an internet, it is very
easy to invade upon the privacy of any individual and
thereby violating his right under Article 21 of the
Constitution of India.
(vii) By its very nature, in the mediums like newspaper,
magazine, television or a movie, it is not possible to
sexually harass someone, outrage the modesty of
anyone, use unacceptable filthy language and evoke
communal frenzy
which
would lead to serious social
disorder. While in the case of an internet, it is easily
possible to do so by a mere click of a button without any
geographical limitations and almost in all cases while
ensuring anonymity of the offender.
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SUPREME COURT REPORTS [2015] 5 S.C.R.
(viii) By the very nature of the medium, the width and
reach of internet is manifold as against newspaper and
films. The said mediums have inbuilt limitations i.e. a
person will have to buy I borrow a newspaper and I or will
have to go to a theater to watch a movie. For television
also one needs at least a room where a television is
placed and can only watch those channels which he has
subscribed and that too only at a time where it is being
telecast. While in case of an internet a person abusing
the internet, can commit an offence at any place at the
time of his choice and maintaining his anonymity in almost
all cases.
(ix) In case of other mediums, it is impossible to maintain
anonymity as a result of which speech ideal opinions
films having serious potential of creating a social disorder
never gets generated since its origin is bound to be
known. While in case of an internet mostly its abuse takes
place under the garb of anonymity which can be unveiled
only after thorough investigation.
(x) In case of other mediums like newspapers, television
or films, the approach is always institutionalized
approach governed by industry specific ethical norms of
self conduct. Each newspaper I magazine I movie
production
house
I TV Channel will have their own
institutionalized policies in house which would generally
obviate any possibility of the medium being abused. As
against that use of internet is solely based upon
individualistic
approach of each
individual without any
check, balance or regulatory ethical norms for exercising
freedom of speech and expression under Article 19[ 1]
[a].
(xi) In the era limited to print media and cinematograph;
or even in case of publication through airwaves, the
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1005
chances of abuse of freedom of expression was less
due to inherent infrastructural and logistical constrains.
In the case of said mediums, it was almost impossible
for an individual to create and publish an abusive content
and make it available to trillions of people. Whereas, in
the present internet age the said infrastructural and
logistical constrains have disappeared as any individual
using even a smart mobile phone ora portable computer
device can create and publish abusive material on its
own, without seeking help of anyone else and make it
available to trillions of people by just one click."
28. As stated, all the above factors may make a
distinction
between the print and other media as opposed to
A
B
c
the internet and the legislature may
well, therefore, provide for
separate offences so far as free speech over the internet is D
concerned. There is, therefore, an intelligible differentia having
a rational relation to the object sought to be achieved -that
there
can be creation of offences which are applied to free
speech over the internet alone as opposed to other mediums
of communication. Thus, an Article 14 challenge has been E
repelled by us on this ground later in this judgment. But we do
not find anything in the features outlined by the. learned
Additional Solicitor General to relax the
Court's scrutiny of the
curbing of the content of free speech over the internet. While it F
may be possible to narrowly draw a Section creating a new .
offence, such as Section 69A for instance, relatable only to
speech over the internet, yet the validity of such a law will have
to be tested on the touchstone of the tests already indicated
above.
29. In fact, this aspect was considered in Secretary
Ministry of Information & Broadcasting, Government of
India v. Cricket Association of Bengal, (1995) 2 SCC 161
in para 37, where the following question was posed:
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1006 SUPREME COURT REPORTS. ~ (2015] 5 S.C.R ·
A "The next question which is required to be answered is
whether there is
any distinction between the freedom of
the print media and that of the electronic media such as
radio and television, and if so, whether it necessitates
more restrictions on the latter media."
8
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This question was answered in para 78 thus:
"There is no doubt that since the airwaves/frequencies
are a public property and are also limited,
they have to
be
used in the best interest of the society and this can be
done either by a central authority by establishing its own
broadcasting network
or regulating the grant of licences
to
other agencies, including the private agencies. What
is further, the electronic media is the most powerful media
both because
of its audio-visual impact and its widest
reach covering the section
of
the society where the print
media
does not reach. The right to use the airwaves and
the content of the ·programmes, therefore, needs
regulation for balancing it and as well as to prevent
monopoly of information and
views relayed, which is a
potential danger flowing from the concentration
of the right
to broadcast/telecast in
the hands either of a eentral
agency or of few private affluent broadeasters. That is
why the need to have a central agency representative of
all sections of the society free from control both of the ·
Goverriment and the dominant influential sections of the
society. This is not disputed. But to contend that
on that
·
account the restrictions to be imposed on the right under
Article
19(1 )(a) should be in addition
to those permissible
under Article 19(2) and dictated by the use of public
resources in
the best interests of the society at large, is
to misconceive both the content
of the freedom of speech
and expression and the problems posed
by the element
of public property in, and the alleged scarcity of, the
SHREYASINGHALv. UNION OF INDIA[R. F. NARIMAN, J.] 1007
frequencies as well as by the wider reach of the media. !f A
the right
to freedom of speech and expression includes
the right to disseminate information to as wide a section
of the population as is possible. the access which enables the right to be so exercised is also an integral
part of the said right. The wider range of circulation of B
information or its greater impact cannot restrict the content
of the right nor can it justify its denial. The virtues of the
electronic media cannot become its enemies. It may
warrant a greater regulation over licensing and control
and vigilance on the content of the programme telecast.
However, this control can only be exercised within the
framework of Article 19(2) and the dictates of public
interests. To plead for other grounds is to plead for
unconstitutional measures. It is further difficult to
appreciate such contention on the part of the Government
in this country when they have a complete control over
the frequencies and the content of the programme to be
telecast. They control the sole agency of telecasting. They
are also armed with the provisions of Article 19(2) and
the powers of pre-censorship under the Cinematograph
Act and Rules. The only limitation on the said right is,
therefore, the limitation of resources and the need to use
them for the benefit of all. When, however, there are surplus
or unlimited resources and the public interests so
demand or
in any case do not prevent
telecasting, the
validity of the argument based on limitation of resources
disappears. It is true that to own a frequency for the
purposes of broadcasting is a costly affair and even when
there are surplus or unlimited frequencies, only the affluent
f~w will own them and will be in a position to use it to
subserve their
own interest by
manipulating news and
views. That also poses a danger to the freedom of speech
and expression.of the have-nots by denying them the
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SUPREME COURT REPORTS [2015] 5 S.C.R.
truthful information on all sides of an issue which is so
necessary to form a sound view on any subject. That is
why the doctrine of fairness has been evolved in the US
in the context of the private broadcasters licensed to
share the limited frequencies with the central agency like
the FCC to regulate the programming. But this
phenomenon occurs even in the case of the print media
of all the countries. Hence the body like the Press Council
of India which is empowered to enforce, however
imperfectly, the right to reply. The print media further
enjoys as in our country, freedom from pre-censorship
unlike the electronic media."
Public Order
o 30. In Article 19(2) (as it originally stood) this sub-head
was conspicuously absent. Because of its absence,
challenges
made to an order made under Section 7 of the Punjab Maintenance of Public Order Act and to an order made
under Section 9 (1 )(a) of the Madras Maintenance of Public
E Order Act were allowed in two early judgments by this Court.
Thus in Romesh Thappar v. State of Madras, [1950] S.C.R.
594, this Court held that an order made under Section 9(1 )(a)
of the Madras Maintenance of Public Order Act (XXll I of 1949)
was unconstitutional and void in that it could not be justified as
F a measure connected with security of the State. While dealing
with the expression "public order", this Court held that "public
order" is an expression which signifies a state of tranquility
which prevails amongst the members of a political society as
a result of the internal regulations enforced by the Government
G which they have established.
H
31. Similarly, in Brij Bhushan & Anr. v. State of Delhi,
[1950] S.C.R. 605, an order made under Section 7 of the East
Punjab Public Safety Act, 1949, was held to be unconstitutional
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1009
and void for the self-same reason.
32. As an aftermath of these judgments, the Constitution
First Amendment added the words "public order" to Article
19(2).
33. In Superintendent, Central Prison, Fatehgarh
A
B
v. Ram Manohar Lohia, [1960] 2 S.C.R. 821, this Court held
that public order is synonymous with public safety and
tranquility; it is the absence of disorder involving breaches of
local significance in contradistinction to national upheavals, c
such as revolution, civil strife, war, affecting the security of the
State. This definition was further refined in Dr. Ram Manohar
Lohia v. State of Bihar & Ors., (1966] 1 S.C.R. 709, where
this Court held:
"It will thus appear that just as "public order'' in the rulings
of this Court (earlier cited) was said to comprehend
disorders of less gravity than those affecting "security of
State", "law and order" also comprehends disorders of
less gravity than those affecting "public order". One has
to imagine three concentric circles. Law and order
represents the largest circle within which is the next circle
representing public order and the smallest circle
represents security of State. It is then easy to see that an
act may affect law and order but not public order just as
an act may affect public order but not security of the
State." (at page 746)
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34. In Arun Ghosh v. State of West Bengal, [1970] 3
S.C.R. 288, Ram Manohar Lohia's case was referred to with G
approval in the following terms:
"In Dr. Ram Manohar Lohia's case this Court pointed out
the difference between maintenance of law and order
and its disturbance and the maintenance of public order
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1010
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SUPREME COURT REPORTS [2015] 5 S.C.R.
and its disturbance. Public order was said to embrace
more of the community than law and order. Public order
is the even tempo of the life of the community taking the
country as a whole or even a specified locality.
Disturbance of public order is to be distinguished, from
acts directed against individuals which do not disturb the
society to the extent of causing a general disturbance of
public tranquility. It is the degree of disturbance and its
effect upon the life of the community in a locality which
determines whether
the disturbance amounts
only to a
breach of law and order. Take for instance, a man stabs
another. People may be shocked and even disturbed,
but the life of the community keeps moving at an even
tempo, however much one may dislike the act. Take
another case of a town where there is communal tension.
A man stabs a member of the other community. This is
an act of a very different sort. Its implications are deeper
and it affects the even tempo of life and public order is
jeopardized because the repercussions of the act
embrace large Sections of the community and incite them
·to make further breaches of the law and order and to
subvert the public order. An act by itself is not determinant
of
its own gravity.
In its quality it may not differ from
another but in its potentiality it may be very different. Take
the case of assault on girls. A guest at a hotel may kiss
or make advances to half a dozen chamber maids .. He
may annoy them and also the management but he does
not cause disturbance of public order. He may even have
a fracas with the friends of one of the girls but even then
G it would be a case of breach of law and order only. Take
another case of a man who molests women in lonely
places. As a result of his activities girls going to colleges
and schools are in constant danger and fear. Women
going for their ordinary business are afraid of being
H
SHREYASINGHALv. UNION OF INDIA[R. F. NARIMAN, J.] 1011
waylaid and assaulted. The activity of this man in its
essential quality is not different from the act of the other
man but in its potentiality and in its effect upon the public
tranquility there is a vast difference. The act of the man
who molests the girls in lonely places causes a
disturbance
in the even tempo of
living which is the first
requirement of public order. He disturbs the society and
the community. His act makes c;ill the women
apprehensive of their honour
and he can be said to be
causing disturbance of
public order and not merely
committing individual actions which may be taken note
of by the criminal prosecution agencies. It means
therefore that
the question whether a man has
only
committed a breach of law and order or has acted in a
manner likely to cause a disturbance of the public order
is a question of degree and the extent of the reach of the
act upon the society. The French distinguish law and order
and public order by designating the latter as order
publique. The latter expression has been recognised as
meaning something more than ordinary maintenance of
law and order. Justice Ramaswami in Writ Petition No.
179 of 1968 drew a line of demarcation between the
serious and aggravated forms of breaches of public order
which affect the community or endanger the public interest
at large from minor breaches of peace which do not affect
the public at large. He drew an analogy between public
and private crimes. The analogy is useful but not to be
pushed too far. A large number of acts directed against
persons or individuals may total up into a breach of public
order. In Dr. Ram Manohar Lohia's case examples were
given by Sarkar, and Hidayatullah, JJ. They show how
similar acts in different contexts affect differently law and
order on the one hand and public order on the other. It is
always a question of degree of the harm and its effect
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1012 SUPREME COURT REPORTS [2015] 5 S.C.R.
A upon the community. The question to ask is: Does it lead
to disturbance of the current of life of the community so
as to amount to a disturbance of the public order or does
it affect merely an individual leaving the tranquility of the
society undisturbed? This question has to be faced in
B every case on facts. There is no formula by which one
case can be distinguished from another." (at pages 290
and 291).
35. This decision lays down the test that has to be
C formulated in all these cases. We have to ask ourselves the
question: does a particular act lead to disturbance of the current
life of the community or does it merely affect an individual
leaving the tranquility of society undisturbed? Going by this
test, it is clear that Section 66A is intended to punish any
D person who uses the internet to disseminate any information
that falls within the sub-clauses of Section 66A. It will be
immediately noticed that the recipient of the written word that
is sent by the person who is accused of the offence is not of
any importance so far as this Section is concerned. (Save and
E except where under sub-clause (c) the addressee or recipient
is deceived or misled about the origin of a particular message.)
It is clear, therefore, that the information that is disseminated
may be to one individual or several individuals. The Section
F makes no distinction between mass dissemination and
dissemination to one person. Further, the Section does not
require that such message should have a clear tendency to
disrupt public order. Such message need not have any potential
which could disturb the community at large. The nexus between
G the message and action that may be taken based on the
message is conspicuously absent -there is no ingredient in
this offence of inciting anybody to do anything which a
reasonable · ian would then say would have the tendency of
being an immediate threat to public safety or tranquility. On all
H these counts, it is clear that the Section has no proximate
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1013
relationship to public order whatsoever. The example of a guest A
at a hotel 'annoying' girls is telling -this Court has held that
mere 'annoyance' need not cause disturbance of public order.
Under Section 66A, the offence is complete by sending a
message for
the purpose of causing annoyance, either
'persistently' or
otherwise without in any manner impacting B
public order.
Clear and present danger -tendency to affect.
36. It will be remembered that Justice Holmes in c
Schenck v. United States, 63 L. Ed. 470 enunciated the clear
and present danger test as follows:
" ... The most stringent protection of free speech would
not protect a man in falsely shouting fire in a theatre and
causing a panic. It does not even protect a man from an
injunction against uttering words that may have all the
effect of force. Gompers v. Buck's Stove & Range Co.,
221 U.S. 418, 439, 31 Sup. Ct. 492, 55 L. ed. 797, 34 L.
R. A. (N. S.) 87 4. The question in every case is whether
the words used are used in such circumstances and are
of such a nature as to create a clear and present danger
that they will bring about the substantive evils that
Congress
has a right to prevent.
It is a question of
proximity
and degree." (At page 473, 474)
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37. This was further refined in Abrams v.
Unites States
250 U.S. 616 (1919), this time in a Holmesian dissent, to be
clear and imminent danger. However, in most of the subsequent
judgments of the U.S. Supreme Court, the test has been G
understood
to mean to be
"clear and present danger". The
test of "clear and present danger" has been used by the U.S.
Supreme Court in many varying situations and has been
adjusted according to varying fact situations. It appears to
have been repeatedly applied, see-Terminiello v. City of H
1014 SUPREME COURT REPORTS [2015] 5 S.C.R.
A Chicago 93 L Ed. 1131 (1949) at page 1134-1135,
Brandenburg v. Ohio 23 L. Ed. 2d 430 (1969) at 434-435 &
436, Virginiav. Black 155 L. Ed. 2d 535 (2003) at page 551,
552pnd 553
4
B 38. We have echoes of it in our law as well S.
Rangarajan v. P. Jagjivan & Ors., (1989) 2 SCC 574 at
paragraph 45:
"45. The problem of defining the area of freedom of
c expression when it appears to conflict with the various
social interests enumerated under Article 19(2) may
briefly be touched upon here. There does indeed have
to be a compromise between the interest of freedom of
expression and special interests. But we cannot simply
o balance the two interests as if they are of equal weight.
E
Our commitment offreedoro of expression demands that
it cannot be suppressed unless the situations created by
allowing the freedom are pressing and the community
interest is endangered. The anticipated danger should
•· In its present form the clear and present danger test has been reformulated to say
that:
"The constitutional guarantees of free speech and free press do not permit a State to
forbid or proscribe advocacy
of the use of force .or of
law violation except where
such advocacy is directed to inciting or producing imminent lawless action and is likely
F to incite or produce such action.'
Interestingly, the US Courts have gone on to make a further refinement. The State may
ban what is called a 'true threat'.
"True threats' encompass those statements where the speaker means to communicate
a serious expression of
an intent to commit an act of
unlawful violence to a particular
individual or group of individuals."
G 'The speaker need not actually intend to carry out the threat. Rather, a prohibition on
true threats protects individuals from the fear of violence and from the disruption that
fear engenders,
in addition to protecting
people from the possibility that the threatened
violence will occur. Intimidation in the constitutionally proscribable sense of the word
is a type
of true threat, where a speaker directs a threat to a person or group of
persons with the intent of
placing the victim in fear of·bodily harm or death."
H See Virginia v. Black (Supra) and Watts v. United States 22 L. Ed. 2d. 664 at 667
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1015
not be remote, conjectural or far-fetched. It should have A
proximate
and direct nexus with the expression. The
expression of thought
should be intrinsically dangerous
to the public interest. In other words, the expression should
be inseparably locked up with the action contemplated
like the equivalent of a "spark in a powder keg". B
39. This Court has used the expression "tendency" to a
particular act. Thus, in State of Bihar v. Shailabala Devi,
[1952] S.C.R. 654, an early decision of this Court said that an
article, in order to be banned must have a tendency to excite C
persons to acts of violence (at page 662-663). The test laid
down in the said decision was that the article should be
considered as a whole in a fair free liberal spirit and then it
must
be decided what effect it would have on the mind of a reasonable reader. (at pages 664-665) D
40. In Ramji Lal Modi v. The State of U.P., [1957]
S.C.R. 860 at page 867, this court upheld Section 295A of the
Indian Penal Code only because it was read down to mean ,
that aggravated
forms of
insults to religion must have a E
tendency
to disrupt
public order. Similarly, in Kedar Nath
Singh v. State ofBihar, 1962 Supp. (2) S.C.R. 769, Section
124A of the Indian Penal Code was upheld by construing it
narrowly and stating that the offence would only be complete if
the words complained of have a tendency of creating public F
disorder
by
violence. It was added that merely creating
disaffection or creating feelings of enmity in certain people
was not good enough or else it would violate the fundamental
right of free speech under Article 19(1)(a). Again, in Dr. G
Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath
Kunte
&
Ors., 1996 (1) SCC 130, Section 123 (3A) of the
Representation of People Act was upheld only if the enmity or
hatred that was spoken about in the Section would tend to
create immediate public disorder and not otherwise.
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1016 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 41. Vi.ewed at either by the standpoint of the clear and
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present danger test or the tendency to create public disorder,
Section 66A would not pass muster as it has no element of
any tendency to create public disorder which ought to be an
essential ingredient of the offence which it creates.
Defamation
42. Defamation is defined in Section 499 of the Penal .
Code as follows:
"499. Defamation.-Whoever, by words either spoken
or intended to be read, or by signs or by visible
· representations, makes or publishes any imputation
concerning any person intending tu i1arm, or knowing or
having reason to believe that such imputation will harm,
the reputation of such person, is said, except in the cases
hereinafter excepted, to defame that person.
Explanation 1.-lt may amount to defamation to impute
anything to a deceased person, if the imputation would
harm the reputation of that person if living, and is intended
to be hurtful to the feelings of his family or other near
relatives.
Explanation 2.-lt may amount to defamation to make
an imputation concerning a company or an association
or collection of persons as such.
Explanation 3.-An imputation in the form of an
alternative or expressed ironically, may amount to
defamation.
Explanation 4.-No imputation is said to harm a person's
reputation, unless that imputation directly or indirectly, in
the estimation of others, lowers the moral or intellectual
character of that person, or lowers the character of that
. . .
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1017
person in respect of his caste or of his calling, or lowers A
the credit of that person, or causes it to be believed that
the body of that person is in a loathsome state, or in a
state generally considered as disgraceful."
43. It will be noticed that for something to be defamatory, B
injury
to reputation is a basic ingredient.
Section 66A does
not concern itself with injury to reputation. Something may be
grossly offensive and may annoy or be inconvenient to
somebody without at all affecting his reputation. It is clear
therefore that the Section is not aimed at defamatory C
statements at all.
Incitement to an offence:
44. Equally, Section 66A has no proximate connection
0
with incitement to commit an offence. Firstly, the information
disseminated over the internet need not be information which
"incites" anybody at all. Written words may be sent thcij may
be purely in the realm of "discussion" or "advocacy" of a
"particular point of view". Further, the mere causing of E
annoyance, inconvenience, danger etc., or being grossly
offensive or having a menacing character are not offences
under the Penal Code at all. They may be ingredients of certain
offences under the Penal Code but are not offences in
themselves. For these reasons, Section 66A has nothing to F
do
with "incitement to an offence". As Section 66A
severely
curtails information that may be sent on the internet based on
whether it is grossly offensive, annoying, inconvenient, etc. and
being unrelated to any of the eight subject matters under Article
19(2) must, therefore, fall foul of Article 19(1 )(a), and not being G
saved under Article 19(2), is declared as unconstitutional.
Decency or Morality
45. This Court in Ranjit Udeshi v: State of H
1018 SUPREME COURT REPORTS (2015] 5 S.C.R.
A Maharashtra [1965] 1S.C.R.65 took a rather restrictive view
of what would pass muster as not being obscene. The Court
followed the test laid down in the old English judgment in
Hicklin's case which was whether the tendency of the matter
charged as obscene is to deprave and corrupt those whose
B minds are open to such immoral influences and into whose
hands a publication of this sort may fall. Great strides have
been made since this decision in the UK, United States as
well as in our country. Thus, in Director General, Directorate
General of Doordarshan v. Anand Patwardhan, 2006 (8)
C SCC 433, this Court noticed the law in the United States and
said that a material may be regarded as obscene if the
average person applying contemporary community standards
would find that the subject matter taken as a whole appeals to
0
the prurient interest and that taken as a whole it otherwise lacks
serious literary artistic, political, educational or scientific value
(see Para 31).
46. In a recent judgment of this Court, Aveek Sarkar v.
State of West Bengal, 2014 (4) SCC 257, this Court referred
E to English, U.S. and Canadian judgments and moved away
from the Hicklin test and applied the contemporary community
standards test.
4 7. What has been said with regard to public order and
F incitement to an offence equally applies here. Section 66A
cannot possibly be said to create an offence which falls within
the expression 'decency' or 'morality' in that what may be
grossly offensive or annoying under the Section need not be
obscene at all -in fact the word 'obscene' is conspicuous by
G its absence in Section 66A.
48. However, the learned Additional Solicitor General
asked us to read into Section 66A each of the subject matters
contained in Article 19(2) in order to save the constitutionality
H of
the provision. We are afraid that such an exercise is not
SHREYASINGHAL v. UNION OF INDIA[R. F. NARI MAN, J.) 1019
possible for the simple reason that when the legislature A
intended to do so, it provided for some of the subject matters
contained in Article 19(2) in Section 69A. We would be doing
complete violence to the language of_Section 66A if we were
to read into it something that was never intended to be read
into it. Further, he argued that the statute should be made B
workable, and the following should be read into Section 66A:
"(i) Information which would appear highly abusive,
insulting, pejorative, offensive by reasonable person in
general, judged by the standards of an open and just multi-C
caste, multi-religious, multi racial society;
Director of Public Prosecutions v. Collins -
(2006) 1 WLR 2223 @ para 9 and 21
Connolly v. Director of Public Prosecutions
reported in [2008) 1W.L.R.276/2007 [1)All ER
1012
House of Lords Select Committee 1st Report of
Session 2014-2015 on Communications titled
as "Social Media And Criminal Offences" @ pg
260 of compilation of judgments Vol I Part B
(ii) Information which is directed to incite or can produce
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imminent lawless action Brandenburg v. Ohio 395 U.S. F
444 (1969);
(iii)
Information which may constitute credible threats of
violence to the person or damage;
(iv) Information which stirs the public to anger, invites
violent disputes
brings about condition of violent unrest
and disturbances;
Terminiel/o v. Chicago 337
US 1 (1949)
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SUPREME COURT REPORTS [2015) 5 S.C.R.
(v) Information which advocates or teaches the duty,
necessity or proprietary of violence as a means of
accomplishing political, social or religious reform and/or
justifies commissioning of violent acts with an intent to
exemplify glorify such violent means to accomplish
political, social, economical or religious reforms
[Whitney vs. California 27 4 US 357];
(vi) Information which contains fighting or abusive
c material;
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Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
(vii) Information which promotes hate speech i.e.
(a) Information which propagates hatred towards
individual or a groups, on the basis of race, religion,
religion, casteism, ethnicity,
(b) Information which is intended to show the supremacy
of one particular religion/race/caste by making
disparaging, abusive and/or highly inflammatory remarks
against religion/race/caste.
(c) Information depicting religious deities, holy persons,
holy symbols, holy books which are created to insult or to
show contempt or lack of reverence for such religious
deities, holy persons, holy symbols, holy books or towards
something which is considered sacred or inviolable.
(viii) Satirical or iconoclastic cartoon and caricature which
fails the test laid down in Hustler Magazine, Inc. v.
Falwe/1485 U.S. 46 (1988)
(ix) Information which glorifies terrorism and use of drugs;
H (x) Information which infringes right of privacy of the others
SHREYASINGHAL v. UNION OF INDIA[R. F. NARI MAN, J.] 1021
and includes acts of cyber bullying, harassment or A
stalking.
(xi) Information which is obscene and has the tendency
to arouse feeling or revealing an overt sexual desire and
should be suggestive of deprave mind and designed to B
excite sexual passion in persons who are likely to see it.
Aveek Sarkar and Anr. vs. State of West Bengal and
Ors. (2014) 4 sec 257
(xii) Context and background test of obscenity.
Information which is posted in such a context or
background which has a consequential effect of outraging
the modesty of the pictured individual.
Aveek Sarkar and Anr. vs. State of West Bengal and
Ors. (2014) 4 SCC257."
49. What the learned Additional Solicitor General is
asking us to do is not to read down Section 66A-he is asking
c
D
for a wholesale substitution of the provision which is obviously E
not possible.
Vagueness
50. Counsel for the petitioners argued that the language F
used in Section 66A is so vague that neither would an accused
person be put on notice as to what exactly is the offence which
has been committed nor would the authorities administering
the Section be clear as to on which side of a clearly drawn line
a particular communication will fall. G
51. We were given Collin's dictionary, which defined
most of
the terms used in Section 66A, as
follows:
"Offensive:-
1. Unpleasant or disgusting, as to the senses H
1022 SUPREME COURT REPORTS [2015) 5 S.C.R.
A 2. Causing anger or annoyance; insulting .
3. For the purpose of attack rather than defence.
Menace:-
1. To threaten with violence, danger, etc.
B 2. A threat of the act of threatening
3. Something menacing; a source of danger
4. A nuisance
Annoy:-
C 1. To irritate or displease
2. To harass with repeated attacks
Annoyance
1. The feeling of being annoyed
D 2. The act of annoying.
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Inconvenience
1. The state of quality of being inconvenient
2. Something inconvenient; a hindrance, trouble, or
difficulty
Danger:-
1. The state of being vulnerable to injury, loss, or evil
risk
2. A person or a thing that may cause injury pain etc.
Obstruct:-
1. To block (a road a passageway, etc.) with an obstacle
2. To make (progress or activity) difficult.
3. To impede or block a clear view of.
Obstruction:-a person or a thing that obstructs.
lnsult:-
1. To treat, mention, or speak to rudely; offend; affront
2. To assault; attack
3. An offensive or contemptuous remark or action;
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1023
affront; slight .A
4. A person or thing producing the effect of an affront=
some television is an insult to intelligence
5. An injuryortrauma."
52. The U.S. Supreme Court has repeatedly held in a B
series of judgments that where no reasonable standards are
laid down to define guilt in a Section which creates an offence,
and where no clear guidance is given to either law abiding .
citizens ot to authorities and courts, a Section which creates
an offence and which is vague must be struck down as being C
arbitrary and unreasonable. Thus, in Musser v. Utah, 92 L.
Ed. 562, a Utah statute which outlawed conspiracy to commit
acts injurious to public morals was struck down.
53. In Winters v. People of State of New York, 92 L. D
Ed. 840, a New York Penal Law read as follows:-
"1141. Obscene prints and articles
1. A person ...... who,
2. Prints, utters, publishes, sells, lends, gives away,
distributes or shows, or has in his possession with intent
to sell, lend, give away, distribute or show, or otherwise
offers for sale, loan, gift or distribution, any book,
· . pamphlet, magazine, newspaper or other printed paper
devoted to the publication, and principally made up of
criminal
news, police reports, or accounts of criminal · ·cieeds, or pictures, or stories of deeds of bloodshed, lust
orcrime; .................................................... .
'Is guilty of a misdemeanor, ......... (at page 846}
The court in striking down the said statute held:
'The impossibility of defining the precise line between
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SUPREMECOURTREPORTS [2015] 5 S.C.R.
permissible uncertainty in statutes caused by describing
crimes by words well understood through long use in the
criminal law -obscene, lewd, lascivious, filthy, indecent
or disgusting-and the unconstitutional vagueness that
leaves a person uncertain as to the kind of prohibited
conduct-massing stories to incite crime-has resulted
in three arguments of this case in this Court. The
legislative bodies in draftsmanship obviously have the
same difficulty as do the judicial in interpretation.
Nevertheless despite the difficulties, courts must do their
best to determine whether or not the vagueness is of such
a character 'that men of common intelligence must
necessarily guess at its meaning.' Connally v. General
Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70
L.Ed. 322. The entire text of the statute or the subjects
dealt with may furnish an adequate standard. The present
case as to a vague statute abridging free speech involves
the circulation of only vulgar magazines. The next may
call for decision as to free expression of political views
. in the light of a statute intended to punish subversive
activities.
The subsection of the New York Penal Law, as now
interpreted by the Court of Appeals prohibits distribution
of a magazine principally made up of criminal news or
stories of deeds of bloodshed, or lust, so massed as to
become vehicles for inciting violent and depraved crimes
against the person. But even considering the gloss put
upon the literal meaning by the Court of Appeals'
restriction of the statute to collections of stories 'so
massed as to become vehicles for inciting violent and
depraved crimes against the person • • • not necessarily
• • • sexual passion,' we find the specification of
publications, prohibited from distribution, too uncertain
and indefinite to justify the conviction of this petitioner.
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1025
Even though all detective tales and treatises on
criminology are not forbidden, and though publications
made up of criminal deeds not characterized by
bloodshed or lust are omitted from the interpretation of
the Court of Appeals, we think fair use of collections of
pictures
and stories
would be interdicted because of the
utter impossibility of the actor or the trier to know where
this
new standard of
guilt would draw the line between
the allowable and the forbidden publications. No intent
or purpose
is required-no indecency or obscenity in
any sense heretofore known to the
law. 'So massed as
to incite to crime' can become meaningful only by
concrete instances. This one example is not enough. The
clause proposes to punish the printing and circulation of
publications that courts or juries may think influence
generally persons to commit crime of violence against
the person. No conspiracy to commit a crime is required.
See Musser v. State of Utah, 68 S.Ct. 397, this Term. It is
not an effective notice of new crime. The clause has no
technical or common law meaning. Nor can light as to
the meaning be gained from the section as a whole or
the Article of the Penal Law under which it appears. As
said in the Cohen Grocery Co. case, supra, 255 U.S. at
page 89, 41 S.Ct. at page 300, 65 L.Ed. 516, 14A.L.R.
1045:
'It leaves open, therefore, the widest conceivable inquiry,
the scope of which no one can foresee and the result of
which
no one can foreshadow or adequately guard
against.'
The statute
as construed by the
Court of Appeals does
not limit punishment to the indecent and obscene, as
formerly understood. When stories of deeds of
bloodshed, such as many in the accused magazines, are
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massed so as to incite to violent crimes, the statute is
violated. it does not seem to us that an honest distributor
of publications could know when he might be held to have
ignored such a prohibition. Collections of tales of war
horrors, otherwise unexceptionable, might well be found
to be 'massed' so as to become 'vehicles for inciting
violent and depraved crimes.' Where a statute is so
vague as to make criminal an innocent act, a conviction
under it cannot be sustained. Herndon v. Lowry, 301 U.S.
242, 259, 57 S.Ct. 732, 739, 81 L.Ed. 1066." (at page
851-852)
54. In Burstyn v. Wilson, 96 L. Ed. 1098, sacrilegious
writings and utterances were outlawed. Here again, the U.S.
Supreme Court stepped in to strike down the offending Section
D stating:
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"It is not a sufficient answer to say that 'sacrilegious' is
definite, because all subjects that in any way might be
interpreted as offending the religious beliefs of any one
of the 300 sects of the United States are banned in New
York. To allow such vague, undefinable powers of
censorship
to be exercised is bound to have
stultifying
consequences on the creative process of literature and
art-for the films are derived largely from literature.
History does not encourage reliance on the wisdom and
moderation of the censor as a safeguard in the exercise
of such drastic power over the minds of men. We not
only do not know but cannot know what is condemnable
by 'sacrilegious.' And if we cannot tell, how are those to
be governed by the statute to tell? (at page 1121)
55. In City of Chicago v. Morales et al, 527 U.S. 41
(1999), a Chicago Gang Congregation Ordinance prohibited
criminal street gang members from loitering with one another
H or
with other persons in any
public place for no apparent
SHREYASINGHALv. UNION OF INDIA[R. F. NARIMAN, J.] 1027
purpose. The Court referred to an earlier judgment in United A
States v. Reese 92 U.S. 214 (1875) at 221 in which it was
stated that the Constitution does not permit a legislature to set
a net large enough to catch all possible offenders and leave it
to the Court to step in and say who could be rightfully detained
and who should be set at liberty. It was held that the broad B
sweep of the Ordinance violated the requirement that a
legislature needs to meet: to establish minimum guidelines to
govern law enforcement. f".s the impugned Ordinance did not
have any such guidelines, a substantial amount of innocent
conduct would also be brought within its net, leading to its C
unconstitutionality.
56. It was further held that a penal law is void for
. vagueness if it fails to define the criminal offence with sufficient
definiteness. Ordinary people should be able to understand D
what conduct is prohibited and what is permitted. Also, those
who administer the law must know what offence has been
committed so that arbitrary and discriminatory enforcement of
the law does not take place.
57. Similarly, in Grayned v. City of Rockford, 33 L.Ed.
2d. 222, the State of Illinois provided in an anti noise ordinance
as follows:
E
"'(N)o person, while on public or private grounds adjacent F
to any building in which a school or any class thereof is in
session, shall willfully make or assist in the making of
any noise or diversion which disturbs or tends to disturb
the peace or good order of such school session or class
thereof ... .'Code of Ordinances, c. 28, § 19.2(a)." G
The law on the subject of vagueness was clearly stated thus:
"It is a basic principle of due process that an enactment
is void for vagueness if its prohibitions are not clearly
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defined. Vague laws offend several important values.
First, because we assume that man is free to steer
between lawful and unlawful conduct, we insist that laws
give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may
act accordingly. Vague laws may trap the innocent by not
providing fair warning. Second, if arbitrary and
discriminatory enforcement is to be prevented, laws must
provide explicit standards for those who apply them. A
vague law impermissibly delegates basic policy matters
to policemen, judges, and juries for resolution on an ad
hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application. Third, but related,
where a vague statute 'abut(s) upon sensitive areas
of basic First Amendment freedoms,-it 'operates to inhibit
the exercise of (those) freedoms.' Uncertain meanings
inevitably lead citizens to "steer far wider of the unlawful
zone' ... than if the boundaries of the forbidden areas
were clearly marked.'"(at page 227-228)
58. The anti noise ordinance was upheld on facts in
that case because it fixed the time at which noise disrupts
school activity-while the school is in session -and at a fixed
place -'adjacent' to the school.
F 59. Secondly, there had to be demonstrated a causality
between disturbance that occurs and the noise or diversion.
Thirdly, acts have to be willfully done. It is important to notice
that the Supreme Court specifically held that "undesirables" or
their "annoying conduct" may not be punished. It is only on these
G limited grounds that the said Ordinance was considered not
to be impermissibly vague.
60. In Reno, Attorney General of the United States,
etal.
v. American
Civil Liberties Union et al., 521U.S.844
H (1997), two provisions of the Communications Decency Act
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1029
of 1996 which sought to protect minors from harmful material A
on the internet were adjudged unconstitutional. This judgment
is a little important for two basic reasons -that it deals with a
penal offence created for persons who use the internet as also
for the reason that the statute which was adjudged
unconstitutional uses the expression "patently offensive" which B
comes extremely close to the expression "grossly offensive"
used by the impugned Section 66A. Section 223(d), which
was adjudged unconstitutional, is set out hereinbelow:-
"223 (d) Whoever-
"(1) in interstate or foreign communications knowingly
(A) uses an interactive computer service to send to a
specific
person or persons under 18 years of age, or
(8) uses any interactive computer service to
display in a
manner available to a person under 18 years of age, "any
comment, request, suggestion, proposal, image, or other
communication that, in context, depicts or describes, in
terms patently offensive as measured by contemporary
community standards, sexual or excretory activities or
organs, regardless of whether the user of such service
placed the call or initiated the communication; or
(2) knowingly permits any telecommunications facility
under
such person's
control to be used for an activity
prohibited by paragraph (1) with the intent that it be used
for such activity,
shall be fined under Title 18, or imprisoned not more than
two years, or both." (at page 860)
Interestingly, the District Court Judge writing of th~
internet said:
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"[i]t is no exaggeration to conclude that the Internet has
achieved, and continues to achieve, the most participatory
marketplace of mass speech that this country -and
indeed the world -as yet seen. The plaintiffs in these
actions correctly describe the 'democratizing' effects of
Internet communication: individual citizens of limited
means can speak to a worldwide audience on issues of
concern to them. Federalists and Anti-federalists may
debate the structure of their government nightly, but these
debates occur in newsgroups or chat rooms rather than
in pamphlets. Modern-day Luthers still post their theses,
but to electronic bulletins boards rather than the door of
the Wittenberg Schlosskirche. More rnundane (but from
a constitutional perspective, equally important) dialogue
occurs between aspiring artists, or French cooks, or dog
lovers, or fly fishermen." 929 F. Supp. At 881. (at page
425).
61. The Supreme Court held that the impugned statute
lacked the precision that the first amendment required when a
E
statute regulates the content of speech.
In order to deny minors
access to potentially harmful speech, the impugned Act
effectively
suppresses a large amount of speech that adults
have a constitutional right to receive and to address to one
F another.
62.
Such a burden on adult speech is unacceptable if
less restrictive alternatives would be as effective in achieving
the legitimate purpose that the statute was enacted to serve.
It was held that the general undefined term "patently offensive"
G covers large amounts of non-pornographic material with
serious educational or other value and was both vague and
over broad.
It was, thus, held that the impugned statute was not
H narrowly tailored and would fall foul of the first amendment.
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1031
63. In Federal Communications Commission v. Fox A
Television Stations, 132 S.Ct. 2307, it was held:
"A fundamental principle in our legal system is that laws
which regulate persons or entities must give fair notice
of conduct that
is forbidden or required.
See Connally
v. General Constr. Co., 269 U.S. 385, 391 (1926) ("[A]
statute which either forbids or requires the doing of an
act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to
its application, violates the first essential of due process
of law"); Papachristou v. Jacksonville, 405 U. S. 156,
162 (1972) ("living under a rule of law entails various
suppositions, one of which is that '[all persons] are entitled
to be informed as to what the State commands or
forbids"' (quoting Lanzetta v. New Jersey, 306 U.S. 451,
453 (1939) (alteration in original))). This requirement of
clarity
in
regulation is essential to the protections
provided
by the Due
Process Clause of the Fifth
Amendment. See United States v. Williams, 553 U. S.
285, 304 (2008). It requires the invalidation of laws that
are impermissibly vague. A conviction or punishment fails
to comply with due process if the statute or regulation
under which it is obtained "fails to provide a person of
ordinary intelligence fair
notice of what is prohibited, or
is so
standardless that it authorizes or encourages
seriously discriminatory enforcement." Ibid. As this Court
has explained, a regulation is not vague because it may
at times be difficult to prove an incriminating fact but rather
because it is unclear as to what fact must be proved.
See id., at 306.
Even when speech is not at issue, the void for vagueness
doctrine addresses at least two connected but discrete
due process concerns: first, that regulated parties should
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know what is required of them so they may act
accordingly; second, precision and guidance are
necessary
so that those enforcing the
law do not act in
an arbitrary or discriminatory way. See Grayned v. City
of Rockford, 408 U. S. 104, 108-109 (1972). When
speech is involved, rigorous adherence to those
requirements is necessary to ensure that ambiguity does
not chill protected speech."(at page 2317)
64. Coming to this Court's judgments, in State of
C Madhya Pradesh v. Baldeo Prasad, [1961] 1 S.C.R. 970
an inclusive definition of the word "goonda" was held to be
vagua and the offence created by Section 4A of the Goondas
Act
was, therefore,
violative cf Art:c!(: ~ 8{1 )(d) and ( e) of the
Constitution. It was stated:
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"Incidentally it would also be relevant to point cut that the
definition of the word "goonda" affords no assistance in
deciding which citizen can be put under that category. It
is an inclusive definition and it does not indicate which
tests have to be applied in deciding whether a person
falls in the first part of the definition. Recourse to the
dictionary
meaning of the word would
hardly be of any
assistance in this matter. After all it must be borne in mind
that the Act authorises the District Magistrate to deprive
a
citizen of his
fundamental right under Art. 19(1 )(d) and
(e ), and though the object of the Act and its purpose would
undoubtedly attract the provisions of Art 19(5) care must
always be taken in passing such acts that they provide
sufficient
safeguards against casual, capricious or even
malicious exercise of the powers conferred by them.
It is
well known that the relevant provisions of the Act are
initially put in motion against a person at a lower level
than the District magistrate, and so it is always necessary
that sufficient safeguards should be provided by the Act
to protect the fundamental rights of innocent citizens and
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1033
to save them from unnecessary harassment. That is why
we think the definition of the word "goonda" should have
given necessary assistance to the District Magistrate in
deciding whether a particular citizen falls under the
category of goonda
or not; that is another infirmity in the
Act. As we have already pointed outs. 4-A suffers from
the
same infirmities ass. 4.
Having regard to the two infirmities in Sections 4, 4-A
respectively we do not think it would be possible to
accede to the argument of the Learned Advocate
General that the operative portion of the Act can fall under
Art. 19(5) of the Constitution. The person against whom
action can be taken under the Act is not entitled to know
the source of the information received by the District
Magistrate;
he is
only told about his prejudicial activities
on which the satisfaction of the District Magistrate is
based that action should be taken against him under
s.4 or s. 4-A. In such a case it is absolutely essential
that the Act must clearly indicate by a proper definition or
otherwise when and under what circumstances a person
can be called a goonda, and it must impose an obligation
on the District Magistrate to apply his mind to the question
as to whether the person against whom complaints are
received is such a goonda or not. It has been urged before
us that such an obligation is implicit in Sections 4 and 4-
A. We are, however, not impressed by this argument.
Where a statute empowers the specified authorities
to
take preventive action against the citizens it is
essential
that it should expressly make it a part of the duty of the
said authorities to satisfy themselves about the existence
of what the statute regards as conditions precedent to
the exercise of the said authority. If the statute is silent in
respect of one of such conditions precedent it
undoubtedly constitutes a
serious infirmity which
would
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inevitably take it out of the provisions of Art. 19(5). The
result of this infirmity is that it has left to the unguided and
unfettered discretion of the authority concerned to treat
any citizen as a goonda. In other words, the restrictions
which it allows to be imposed on the exercise of the
fundamental right of a citizen guaranteed by Art.
19(1)(d) and (e) must in the circumstances be held to be
unreasonable. That is the view taken by the High court
and we see no reason to differ from it." (at pages 979,
980)
· 65. At one time this Court seemed to suggest that the
doctrine of vagueness was no part of the Constitutional Law
of India. That was dispelled in no uncertain terms in K.A.
Abbas v. The Union of India & Another, [1971) 2 S.C.R.
D 446:
"This brings us to the manner of the exercise of control
and restriction by the directions. Here the argument is
that most of the regulations are vague and further that
E
they leave no scope for the exercise of creative genius
in the field of art. This poses the first question before us
whether the 'void for vagueness' doctrine is applicable.
Reliance in this connection is placed on Municipal
Committee Amritsar and Anr. v. The State of Rajasthan .
F
In that case a Division Bench of this Court lays down that
an Indian Act cannot be declared invalid on the ground
that it violates the due process clause or that it is
vague ...... " (at page 469)
G "These observations which are clearly obiter are apt to
be too generally applied and need to be explained. While
it is true that the principles evolved by the Supreme Court
of the United States of America in the application of the
Fourteenth Amendment were eschewed
in our
H
Constitution and instead the limits of restrictions on each
SHREYASINGHALv. UNION OF INDIA[R. F. NARIMAN, J.] 1035
fundamental right were indicated in the clauses that
follow the first clause of the nineteenth article, it cannot
be said as an absolute principle that no law will be
considered bad for sheer vagueness. There is ample
authority for the proposition that a law affecting
fundamental rights
may be so considered. A very
pertinent example
is to be found in
State of Madhya
Pradesh and Anr. v. Baldeo Prasad, 1961 (1) SCR 970
where the Central Provinces and Berar Goondas Act
1946 was declared void for uncertainty. The condition
for
the application of
Sections 4 and 4A was that the
person sought to be proceeded against must be a
goonda but the definition of goonda in the Act indicated
no tests for deciding which person fell within the definition.
The provisions were therefore held to be uncertain and
vague.
The real rule is that if a law is vague or appears to be so,
the court must try to construe it, as far as may be, and
language permitting, the construction sought to be placed
on it, must be in accordance with the intention of the
legislature. Thus if the law is open to diverse construction,
that construction which accords best with the intention of
the legislature and advances the purpose of legislation,
is to be preferred. Where however the law admits of no
such construction and the persons applying it are in a
boundless sea of uncertainty and the law prima facie
takes away a guaranteed freedom. the law must be held
to offend the Constitution as was done in the case of the
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GoondaAct. This is not application of the doctrine of due G
process. The invalidity arises from the probability of the
misuse of the law to the detriment of the individual. If
possible, the Court instead of striking down the la'l,lf may
itself draw the line of demarcation where possible but
this effort should be sparingly made and only in the H
1036 SUPREME COURT REPORTS [2015] 5 S.C.R.
A clearest of cases." (at pages 470, 471)
66. Similarly, in Harakchand Ratanchand Banthia
& Ors. v. Union of India & Ors., 1969 (2) SCC 166, Section
27 of the Gold Control Act was struck down on the ground that
B
the conditions imposed by it for the grant of renewal of
licences
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are uncertain, vague and
unintelligible. The Court held:
"21. We now come to Section 27 of the Act which relates
to licensing of dealers. It was stated on behalf of the
petitioners that
the conditions imposed by sub-section
(6) of Section 27 for the grant
or renewal of licences are
uncertain, vague and unintelligible and consequently wide
and unfettered power was conferred upon the statutory
authorities
in the matter of grant or
renewal of licence. In
our opinion this contention is well founded and must be
accepted as correct. Section 27(6)(a) states that in the
matter of issue
or
renewal of licences the Administrator
shall have regard to "the number of dealers existing in
the region in which the applicant intends to carry on
business as a dealer". But the word "region" is nowhere
defined
in the Act.
Similarly Section 27(6)(b) requires
the Administrator
to have regard to
"the anticipated
demand,
as estimated by him, for ornaments in that region." The expression "anticipated demand" is a vague
expression which is not capable of objective assessment
and is bound to lead to a great deal of uncertainty.
Similarly the expression "suitability of the applicant" in
Section 27(6)(e) and "public interest" in Section 27(6)(g)
do not provide any objective standard or norm or
guidance. For these reasons it must be
held that clauses
(a),(d),(e) and (g) of Section 27(6) impose unreasonable
restrictions
on the
fundamental right of the petitioner to
carry on business and are constitutionally invalid. It was
also contended that there was no reason why the
conditions for renewal of licence should be as rigorous
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1037
as the conditions for initial grant of licence .. The
requirement of strict conditions for the renewal of licence
renders the entire future of the business of the dealer
uncertain and subjects it to the caprice and arbitrary will
of the administrative authorities. There is justification for
this argument
and the requirement of Section 26 of the
Act imposing the same conditions for the
renewal of the
licence as for the initial grant appears to be unreasonable.
In our opinion clauses (a), (b), (e) and (g) are inextricably
bound up with the other clauses of Section 27(6) and
form part of a single scheme. The result is that clauses
(a), (b), (c), (e) and (g) are not severable and the entire
Section
27(6) of the Act must be
held invalid. Section
27(2)(d) of the Act states that a valid licence issued by
the Administrator "may contain such conditions,
limitations and restrictions as the Administrator may think
fit to impose and different conditions, limitations and
restrictions may be imposed for different classes of
dealers". On the face of it, this sub-section confers such
wide and vague power upon the Administrator that it is
difficult to limit its scope. In our opinion Section 27(2)(d)
of the Act must be struck down as an unreasonable
restriction on the fundamental right of the petitioners to
carry on business. It appears, however, to us that if Section
27(2)(d) and Section 27(6) of the Act are invalid the
licensing scheme contemplated by the rest of Section
27 of the Act cannot be worked in practice. It is, therefore,
necessary for Parliament to enact fresh legislation
imposing appropriate conditions and restrictions for the
grant and renewal of licences to dealers. In the alternative
the Central Government may make appropriate rules for
the same purpose in exercise of its rule-making power
under Section 114 of the Act."
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67.
In A.K. Roy & Ors. v. Union of India & Ors., [1982] H
1038 SUPREME COURT REPORTS (2015] 5 S.C.R.
A 2 S.C.R. 272, a part of Section 3 of the National Security
Ordinance was read down on the ground that "acting in any
manner prejudicial to the maintenance of supplies and services
essential to the community" is an expression so vague that it
is capable of wanton abuse. The Court held:
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"What we have said above in regard to the expressions
'defence of
India', 'security of India', 'security of the State'
and 'relations of India with foreign powers' cannot apply
to the expression "acting in any manner prejudicial to the
maintenance of supplies and services essential to the
community" which occurs in Section 3(2) of the Act. Which
supplies and services are essential to the community can
easily be defined by the legislature and indeed,
legislations which regulate the prices and possession of
essential commodities either enumerate those
commodities or confer upon the appropriate Government
the power to do so. In the absence of a definition of
'supplies and services essential to the community', the
detaining authority will be free to extend the application
of this clause of sub-section (2) to any commodities or
services the maintenance of supply of which, according
· to him, is essential to the community.
But that is not all. The Explanation to sub-section (2) gives
to the particular phrase in that sub-section a meaning
which is not only uncertain but which, at any given point
of
time,
will be difficult to ascertain or fasten upon.
According to the Explanation, no order of detention can
be mad13 under the National Security Act on any ground
on which an order of detention may be made under the
Prevention of Blackmarketing and Maintenance of
Supplies of Essential Commodities Act, 1980. The reason
for this, which is stated in the Explanation itself, is that for
the purposes of sub-section (2), "acting in any manner
prejudicial to the maintenance of supplies esser.tial to
SHREYASINGHALv. UNION OF INDIA[R. F. NARIMAN, J.) 1039
the community" does not include "acting in any manner
prejudicial to the maintenance of supplies of commodities
essential to the community" as defined in the Explanation
to sub-section (1) of Section 3oftheActof1980. Clauses
(a) and (b) of the Explanation to Section 3(1) of the Act of
1980 exhaust almost the entire range of essential
commodities. Clause (a) relates to committing or
instigating any person to commit any offence punishable
under the Essential Commodities Act, 10 of 1955, or
under any other law for the time being in force relating to
the control of the production, supply or distribution of, or
trade and commerce in, any commodity essential to the
community. Clause (b) of the Explanation to Section 3(1)
of the Act of 1980 relates to dealing in any commodity
which is an essential commodity as defined in the
Essential Commodities Act, 1955, or with respect to
which provisions have been made in any such other law
as is referred to in clause (a). We find it quite difficult to
understand as to which are the remaining commodities
outside the scope of the Act of 1980, in respect of which
it can be said that the maintenance of their supplies is
essential to the community. The particular clause in sub
section (2) of Section 3 of the National Security Act is,
therefore, capable of wanton abuse in that, the detaining
authority can place under detention any person for
possession of
any commodity on the basis that the
authority is of the opinion that the maintenance of
supply
of that commodity is essential to the community. We
consider the particular clause not. only vague and
uncertain but, in the context of the Explanation, capable
of being extended cavalierly to supplies, the maintenance
of which is not essential to the community. To allow the
personal liberty of the people to be taken away by the
application of that clause would be a flagrant violation of
the fairness
and justness of procedure which is
implicit
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68. Similarly, in Kartar Singh v. State of Punjab,
( 1994) 3 sec 569 at para 130-131, it was held:
"130. It is the basic principle of legal jurisprudence that
an enactment is void for vagueness if its prohibitions are
not clearly defined. Vague laws offend several important
values. It is insisted or emphasized that laws should give
the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may
act accordingly. Vague laws may trap the innocent by not
providing fair warning. Such a law impermissibly
delegates basic policy matters to policemen and also
judges for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discriminatory
application. More so uncertain and undefined words
deployed inevitably lead citizens to "steer far wider of
the unlawful zone ... than if the boundaries of the
forbidden areas were clearly marked.
131. Let us examine clause (1) of Section 2(1)(a). This
section
is shown to be
blissfully and impermissibly vague
and imprecise. As rightly pointed out by the learned
counsel, even an innocent person who ingenuously and
F undefiledly communicates or associates without any
knowledge or having no reason to believe or suspect
that the person or class of persons with whom he has
communicated or associated
is engaged in assisting in
any manner terrorists or disruptionists, can be arrested
G and prosecuted by abusing or misusing or
misapplying
this definition. In ultimate consummation of the
proceedings, perhaps that guiltless and innoxious
innocent person may also be convicted."
H
69. Judged by the standards
laid down in the aforesaid
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1041
judgments, it is quite clear that the expressions used
in 66A A
are completely open-ended and undefined. Section 66
in stark
contrast to Section 66A states:
"66. Computer related offences.-lf any person,
dishonestly or fraudulently, does any act referred to in 8
Section 43, he shall be punishable with imprisonment
for a term which may extend to three years or with fine
which may extend to five lakh rupees or with both.
Explanation.-For the purposes of this section,- c
(a) the word "dishonestly" shall have the meaning
assigned to
it in Section 24 of the
Indian Penal Code (45
of 1860);
(b) the word "fraudulently" shall have the meaning D
assigned to
it in Section 25 of the
Indian Penal Code (45
of1860)."
70. It will be clear that in all computer related offences
that are spoken
of by Section
66, mens rea is an ingredient E
and the expression "dishonestly" and "fraudulently" are defined
with some degree
of specificity,
unlik~ the expressions used
in Section 66A.
71. The provisions contained
in Sections 668 up to F
Section
678
also provide for various punishments for offences
that are clearly made out. For example, under Section 668,
whoever dishonestly receives or retains any stolen computer
resource or communication device is punished with
imprisonment. Under Section 66C, whoever fraudulently or G
dishonestly makes use of any identification feature of another
person is liable to punishment with imprisonment. Under
Section 660, whoever cheats by personating becomes liable
to punishment with imprisonment. Section 66F again is a
narrowly drawn section which inflicts punishment which may H
1042 SUPREME COURT REPORTS [2015] 5 S.C.R.
A extend to imprisonment for life for persons who threaten the
·unity, integrity, security or sovereignty of India. Sections 67 to
678 deal with punishment for offences for publishing or
transmitting obscene material including depicting child,ren in
B
sexually explicit acts in electronic form.
72. In the Indian Penal Code, a number of the
expressions that occur in Section 66A occur in Section 268.
"268. Public nuisance.-A person is guilty of a public
c nuisance who does any act or is guilty of an illegal
omission, which causes any common injury, danger or
annoyance to the public or to the people in general who
dwell or occupy property in the vicinity, or which must
necessarily cause injury, obstruction, danger or
o annoyance to persons who may have occasion to use
any public right.
E
A common nuisance is not excused on the ground that it
causes some convenience or advantage."
73. It is important to notice the distinction between the
Sections 268 and 66A. Whereas, in Section 268 the various
expressions "6sed are ingredients for the offence of a public
nuisance, these ingredients now become offences in
F themselve~· when it comes to Section 66A. Further, under
Section 268, the person should be guilty of an act or omission
which is illegal in nature -legal acts are not within its net. A
further
ingredient is that injury, danger or annoyance must be
to the
public in general. Injury, danger or annoyance are not
G offences by themselves howsoever made and to whomsoever
made. The expression "annoyance" appears also in Sections
294 and 510 of the IPC:
H
"294. Ob.scene acts and songs.-Whoever, to the
annoyance of others,
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.) 1043
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene songs, ballad or
words, in or near any public place,
shall be punished with imprisonment of either description
for a term which may extend to three months, or with fine,
or with both.
510. Misconduct in public by a drunken person.
Whoever, in a state of intoxication, appears in any public
place, or in any place which it is a trespass in him to
enter, and there conducts himself in such a manner as to
cause annoyance to any person, shall be punished with
simple imprisonment for a term which may extend to
twenty-four hours, or with fine which may extend to ten
rupees, or with both."
A
B
c
D
7 4. If one looks at Section 294, the annoyance that is
spoken of is clearly defined -that is, it has to be caused by
obscene utterances· or acts. Equally, under Section 510, the
annoyance that is caused to a person must only be by another E
person who is in a state of intoxication and who annoys such
person only in a public place or in a place for which it is a
trespass for him to enter. Such narrowly and closely defined
contours of offences made out under the Penal Code are F
conspicuous
by their absence in
Section 66A which in stark
contrast uses completely open ended, undefined and vague
language.
75. Incidentally, none ofthe expressions used in Section
66A are defined. Even "criminal intimidation" is not defined - G
and the definition clause of the Information Technology Act,
Section 2 does not say that words and expressions that are
defined in the Penal Code will apply to this Act.
76. Quite apart from this, as has been pointed out above, H
1044 SUPREME COURT REPORTS [2015] 5 S.C.R.
A every expression used is nebulous in meaning. What may be
offensive to one may not be offensive to another. What may
cause annoyance or inconvenience to one may not cause
annoyance or inconvenience to another. Even the expression
"persistently" is completely imprecise -suppose a message
B
is sent thrice, can it be said that it was sent
"persistently"?
Does a message have to be sent (say) at least eight times,
before it can be said that such message is "persistently" sent?
There is no demarcating line conveyed by any of these
expressions -
and that is what renders the Section C unconstitutionally vague.
77. However, the learned Additional Solicitor General
argued before us that expressions that are used in Section
66A may be incapable of any precise definition but for that
D
reason they are not constitutionally vulnerable. He cited a large
number of judgments in support of this submission. None of
the cited judgments dealt with a Section creating an offence
which is saved despite its being vague and in capable of any
precise definition.
In fact, most of the judgments cited before
E
us did not
deal with criminal law at all. The few that did are
dealt with hereinbelow. For instance, Madan Singh v. State
of Bihar, (2004) 4 SCC 622 was cited before us. The passage
cited from the aforesaid judgment is contained in para 19 of
F
the judgment. The cited passage is not in the context of an
argument that the word
"terrorism" not being separately defined
would, therefore, be struck down on the ground of vagueness.
The cited passage was only in the co11text of upholding the
conviction of the accused in that case. Similarly, in Zameer
G Ahmed Latifur Rehman Sheikh v. State of Maharashtra &
Ors., (2010) 5 SCC 246, the expression "insurgency" was said
to be undefined and would defy a precise definition, yet it could
be underst 'Jd to mean break down of peace and tranquility
as also a grave disturbance of public order so as to endanger
H
the security of the
State and its sovereignty. This again was
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1045
said in the context of a challenge on the ground of legislative A
competence.
The provisions of the Maharashtra
Control of
Organised Crime Act were challenged on the ground that they
were outside the expression "public order" contained in Entry
1 of
List
I of the 7in Schedule of the Constitution of India. This
contention was repelled by saying that the expression "public B
order" was wide enough to encompass cases of "insurgency".
This case again had nothing to do with a challenge raised on
the ground of vagueness.
78. Similarly, in State of M.P. v. Kedia Leather & C
Liquor Limited, (2003) 7 sec 389, paragraph 8 was cited
·to
show that the expression
"nuisance" appearing in Section
133 of the Code of Criminal Procedure was also not capable
of precise definition. This again was said in the context of an
argument that Section 133 of the Code of Criminal Procedure D
was impliedly repealed by the Water (Prevention and Control
of Pollution) Act, 197 4. This contention was repelled by saying
that the areas of operation of the two provisions were
completely different and th~y existed side by side being
mutually exclusive. This case again did not contain any E
argument that
the provision contained in Section 133 was
vague and, therefore,
unconstitutional. Similarly, in State of
Karnataka v. Appa Balu lngale, 1995 Supp. (4) SCC 469,
the word "untouchability" was said not to be capable of precise F
definition.
Here again, there was no constitutional
challenge
on the ground of vagueness.
79. In fact, two English judgments cited by the learned
Additional Solicitor General would demonstrate how vague the
words used in Section 66A are. In Director of Public G
Prosecutions v. Collins, (2006) 1 WLR 2223, the very
expression "grossly offensive" is contained in Section 127(1 )(1)
of the U.K. Communications Act, 2003. A 61 year old man
made a number of telephone calls over two years to the office H
1046 SUPREME COURT REPORTS [2015] 5 S.C.R.
A of a Member of Parliament. In these telephone calls and
recorded messages Mr. Collins who held strong views on
immigration made a reference to "Wogs", "Pakis", "Black
bastards" and "Niggers". Mr. Collins was charged with sending
messages which were grossly offensive. The Leicestershire
B
Justices dismissed the case against Mr.
Collins on the ground
that the telephone calls were offensive but not grossly offensive.
A reasonable person would not so find the calls to be grossly
offensive. The Queen's Bench agreed and dismissed the
appeal filed by the Director of Public Prosecutions. The House
C of Lords reversed the Queen's Bench stating:
D
E
F
G
H
"9. The parties agreed with the rulings of the Divisional
Court that it is for the Justices to determine as a question
of fact whether a message is grossly offensive, that in
making this determination the Justices must apply the
standards of an open and just multi-racial society, and
that the words must be judged taking account of their
context and all relevant circumstances. I would agree also.
Usages and sensitivities may change over time.
Language otherwise insulting may be used in an
unpejorative, even affectionate, way, or may be adopted
as a badge of honour ("Old Contemptibles"). There can
be no yardstick of gross offensiveness otherwise than
by the application of reasonably enlightened, but not
perfectionist, contemporary standards to the particular
message sent in its particular context. The test is whether
a message is couched in terms liable to cause gross
offence to those to whom it relates.
10. In contrast with section 127(2)(a) and its predecessor
subsections, which require proof of an unlawful purpose
and a degree of knowledge, section 127(1 )(a) provides
no explicit guidance on the state of mind which must be
proved against a defendant to establish an offence
against the subsection."
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1047
80. Similarly in Chambers v. Director of Public A
Prosecutions, [2013] 1 W.L.R. 1833, the Queen's Bench was
faced with the following facts:
"Following an alert on the Internet social network, Twitter,
the defendant became aware that, due to adverse
weather
conditions, an airport from which he was due to travel nine days later was closed. He responded by
posting several "tweets" on Twitter in his own name,
including the following: "Crap1 Robin Hood Airport is
closed. You've got a week and a bit to get your shit
together otherwise I am blowing the airport sky high1"
None of the defendant's "followers" who read the posting
was alarmed by it at the time. Some five days after its
posting the defendant's tweet was read by the duty ·
manager responsible for security at the airport on a
general Internet search for tweets relating to the airport.
Though not believed to be a credible threat the matter
was reported to the police. In interview the defendant
asserted that
the tweet was a joke and not intended to
be menacing. The defendant was charged with sending
by a
public electronic communications network a
message of a
menacing character contrary to section
127(1)(a) of
the Communications Act
2003. He was
convicted in a magistrates' court and, on appeal, the
Crown Court upheld the conviction, being satisfied that
the message was "menacing per se" and that the
defendant
was, at the very
least, aware that his message
was of a menacing character."
B
c
D
E
F
81. The Crown Court was satisfied that the message G
in question was "menacing" stating that an ordinary person
seeing the tweet would be alarmed and, therefore, such
message would be "menacing". The Queen's Bench Division
reversed the Crown Court stating:
H
1048
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F
G
H
SUPREME COURT REPORTS [2015) 5 S.C.R.
"31. Before concluding that a message is criminal on the
basis that it represents a menace, its precise terms, and
any inferences to be drawn from its precise terms, need
to be examined in the context in and the means by which
the message was sent. The Crown Court was
understandably
concerned that this message was sent
at a time when, as we all know, there is
public concern
about acts of terrorism and the continuing threat to the
security of the country from possible further terrorist
attacks. That is plainly relevant to context, but the offence
is not directed to the inconvenience which may be caused
by the message. In any event, the more one reflects on
it, the clearer it becomes th<::t thio. message did not
represent a terrorist threat, or indeed any other form of
threat. It was posted on "Twitter" for widespread reading,
a conversation piece for the defendant's followers,
drawing attention to himself and his predicament. Much
more significantly, although it purports to address "you",
meaning those responsible for the airport, it was not sent
to anyone at the airport or anyone responsible for airport
security, or indeed any form of public security. The
grievance addressed by the message is that the airport
is closed when the writer wants it to be open. The
language and punctuation are inconsistent with the writer
intending it to be or it to be taken as a serious warning.
Moreover, as Mr. Armson noted, it is unusual for a threat
of a terrorist
nature to invite the person making it to be
readily identified, as this message did. Finally, although
we are accustomed to very brief messages by terrorists
to indicate that a bomb or explosive device has been put
in place and will detonate shortly, it is difficult to imagine
a serious threat in which warning of it is given to a large
number of tweet
"followers" in ample time for the threat
to be reported and extinguished."
SHREYA SINGHAL v. UNION OF INDIA [R. F. NARI MAN, J.] 1049
82. These two cases illustrate how judicially trained A
minds would find a person guilty or not guilty depending upon
the Judge's notion of what is "grossly offensive" or "menacing".
In Collins' case, both the Leicestershire Justices and two
Judges of the Queen's Bench would have acquitted Collins
whereas the House of Lords convicted him. Similarly, in the B
Chambers
case, the Crown Court
would have convicted
Chambers whereas
the Queen's Bench acquitted him.
If
judicially trained minds can come to diametrically opposite
conclusions on the same set of facts it is obvious that
c
expressions such as "grossly offensive" or "menacing" are so
vague that there is no manageable standard by which a person
can be said to have committed an offence or not to have
committed an offence. Quite obviously, a prospective offender
of Section 66A and the authorities who are to enforce Section
0
66A have absolutely no manageable standard by which to book
a person for an offence under Section 66A. This being the
case, having regard also to the two English precedents cited
by the learned Additional Solicitor General, it is clear that
Section 66A is unconstitutionally vague. E
Ultimately, applying the tests referred to in Chintaman
Rao and V.G. Row's case, referred to earlier in the judgment,
it
is
clear that Section 66A arbitrarily, excessively and
disproportionately invades the right of free speech and upsets F
the balance between such right and the reasonable restrictions
that may be imposed on such right.
Chilling Effect And Overbreadth
· 83. Information that may be grossly offensive or which G
causes annoyance or inconvenience
are undefined terms
which take into the net a very
large amount of protected and
innocent speech. A person may discuss or even advocate by
means of writing disseminated over the internet information
that
may be a view or point of view pertaining to
governmental, H
1050 SUPREME COURT REPORTS [2015] 5 S.C.R.
A literary, scientific or other matters which may be unpalatable
to certain sections of society. It is obvious that an expression
of a
view on any matter may cause annoyance, inconvenience
or may be
grossly offensive to some. A few examples will
suffice. A certain section of a particular community may be
B grossly offended or annoyed by communications over the
internet by "liberal views" -such as the emancipation of women
or the abolition of the caste system or whether certain members
of a non proselytizing religion should be allowed to bring
persons within their fold who are otherwise outside the fold.
C Each one of these things may be grossly offensive, annoying,
inconvenient, insulting or injurious to large sections of particular
communities and would fall within the net cast by Section 66A.
In point of fact, Section 66A is cast so widely that virtually any
0
opinion on any subject would be covered by it, as any serious
opinion dissenting with the mores of the day would be caught
within its net. Such is the reach of the Section and if it is to
withstand the test of constitutionality, the chilling effect on free
speech would be total.
E
F
G
H
84.
Incidentally, some of our judgments have recognized
this chilling effect of free speech. In R. Rajagopal v. State of
T.N., (1994) 6 SCC 632, this Court held:
"19. The principle of Sullivan [376 US 254 : 11 L Ed 2d
686 (1964)] was carried forward -and this is relevant
to the second question arising in this case - in
Derbyshire County Council v. Times Newspapers
Ltd. [(1993) 2 WLR 449 : (1993) 1 All ER 1011, HL] , a
decision rendered by the House of Lords. The plaintiff, a
local authority brought an action for damages for libel
against the defendants in respect of two articles
published in Sunday Times questioning the propriety of
investments
made for its superannuation fund. The articles were headed "Revealed: Socialist tycoon deals
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1051
with Labour Chief' and "Bizarre deals of a council leader
and
the media tycoon". A
preliminary issue was raised
whether the plaintiff has a cause of action against the
defendant. The trial Judge held that such an action was
maintainable but on appeal the Court of Appeal held to
the contrary. When the matter reached the House of
Lords, it affirmed the decision of the Court of Appeal but
on a different ground. Lord Keith delivered the judgment
agreed to by all other learned Law Lords. In his opinion,
Lord Keith recalled that in Attorney General v. Guardian
Newspapers Ltd. (No. 2)[(1990) 1AC109: (1988) 3All
ER 545: (1988) 3 WLR 776, HL] popularly known as
"Spycatchercase", the House of Lords had opined that
"there are rights available to private citizens which
institutions of... Government are not in a position to
exercise unless they can show that it is in the public
interest to do so". It was also held therein that not only
was there no public interest in allowing governmental
institutions to sue for libel, it was "contrary to the public
interest because to admit such actions would place an
undesirable fetter on freedom of speech" and further that
action for defamation or threat of such action "inevitably
have an inhibiting effect on freedom of speech". The
learned Law Lord referred to the decision of the United
States Supreme Court in New York
Times v. Sullivan [376 US 254 : 11 L Ed 2d 686 (1964 )]
and certain other decisions of American Courts and
observed -and this is significant for our purposes-
A
B
c
D
E
F
"while these decisions were related most directly to the G
provisions of the American Constitution concerned with
securing freedom of speech' the public interest
considerations
which underlaid them are no less valid
in
this country. What has been described as 'the chilling
effecf induced by the threat of civil actions for libel is H
1052 SUPREME COURT REPORTS [2015] 5 S.C.R.
A very important. Quite often the facts which would justify a
defamatory publication are known to be true, but
admissible evidence capable of proving those facts is
not available."
B Accordingly, it was held that the action was not
maintainable in law."
c
D
E
85.
Also in S. Khushboo v. Kanniammal, (2010) 5
SCC 600, this Court said:
"4 7. In the present case, the substance of the controversy
does not really touch on whether premarital sex is socially
acceptable. Instead, the real issue of concern is the
disproportionate response to the appellant's remarks. If
the complainants vehemently disagreed with the
appellant's views, then they should have contested her
views through the news media or any other public
platform. The law should not be used in a manner that
has chilling effects on the "freedom of speech and
expression".
86. That the content of the right under Article 19(1 )(a)
remains the same whatever the means of communication
including internet communication is clearly established by
F Reno's case (supra) and by The Secretary, Ministry of
Information &
Broadcasting v. Cricket Association of
Bengal &Anr., (1995)
SCC 2 161 at Para 78 already referred
to. It is thus clear that not only are the expressions used in
Section 66A expressions of inexactitude but they are also
G over broad and would fall foul of the repeated injunctions of
this Court that restrictions on the freedom of speech must be
couched in the narrowest possible terms. For example, see,
Kedar Nath Singh v. State of Bihar, [1962) Supp. 2 S.C.R.
769 at 808-809. In point of fact, judgments of the Constitution
H Bench of this Court have struck down sections which are similar
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1053
in nature. A prime example is the section struck down in the A
first
Ram Manohar Lohia case,
namely, Section 3 of the U.P.
Special Powers Act, where the persons who "instigated"
expressly or by implication any person or class of persons not
to pay or to defer payment of any liability were punishable.'
This Court specifically held that under the Section a wide net B
was cast to catch a variety of acts of instigation ranging from
friendly advice to systematic propaganda. It was held that in
its wide amplitude, the Section takes in the innocent as well
as the guilty, bonafide and malafide advice and whether the
person be a legal adviser, a friend or a well wisher of the person C
instigated, he cannot escape the tentacles of the Section. The
Court held that it was not possible to predicate with some kind
of precision the different categories of instigation falling within
or without the field of constitutional prohibitions. It further held
0
that the Section must be declared unconstitutional as the
offence made out would depend upon factors which are
uncertain.
87. In Kameshwar Prasad & Ors. v. The State of
Bihar&Anr., [1962] Supp. 3 S.C.R. 369, Rule4-Aofthe Bihar E
Government
Servants
Co11duct Rules, 1956 was challenged.
The rule states "No government servant shall participate in any
demonstration or resort to any form bf strike in connection with
any matter pertaining to his conditions of service."
F
88. The aforesaid rule was challenged under Articles
19 (1 )(a) and (b) of the Constitution. The Court followed the·
law laid down in Ram Manohar Lohia's case [1960] 2 S.C.R.
821 and accepted the challenge. It first held that
demonstrations
are a form of speech and then
held: G
"The approach to the question regarding the
constitutionality of the rule should be whether the ban that
it imposes on demonstrations would be covered by the
limitation of the guaranteed rights contained in Art. 19 H
1054
A
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SUPREME COURT REPORTS [2015] 5 S.C.R.
(2) and 19(3). In regard to both these clauses the only
relevant criteria which has been suggested by the
respondent-State is that the rule is framed "in the interest
of public order''. A demonstration may be defined as "an
expression of one's feelings by outward signs." A
demonstration such as is prohibited by, the rule may be
of the most innocent type -peaceful orderly such as the
mere wearing of a badge by a Government servant or
even by a silent assembly say outside office hours -
demonstrations
which
could in no sense be suggested
to involve any breach of tranquility, or of a type involving
incitement to or capable of leading to disorder. If the rule
had confined itself to demonstrations of type which would
lead to disorder then the validity of that rule could have
been susta.ined but what the rule does is the imposition
of a blanket-pan _on all demonstrations of whatever type -
innocent
as
well as otherwise -and in consequence its
validity cannot be upheld." (at page 374)
89. The Court further went on to hold that remote
E disturbances of public order by demonstration would fall
outside Article 19(2). The connection with public order has to
be intimate, real and rational and should arise directly from
the demonstration that is sought to be prohibited. Finally, the
F Court held:
G
''The vice of the rule, in our opinion, consists in this that it
lays a ban on every type of demonstration -be the same
however innocent and however incapable of causing a
breach of public tranquility and does not confine itself to
those forms of demonstrations which might lead to that
result." (at page 384)
90. These two Constitution Bench decisions bind us
and would apply directly on Section 66A. We, therefore, hold
H that the Section is unconstitutional also on the ground that it
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1055
takes within its sweep protected speech and speech that is A
innocent
in nature and is
liable therefore to be used in such a
way
as to have a
chilling effect on free speech and would,
therefore, have to be struck down on the ground of overbreadth.
Possibility of an act being abused is not a ground to test B
its validity:
91. The learned Additional Solicitor General cited a
large number of judgments on the proposition that the fact that
Section 66A is capable of being abused by the persons who c
administered it is not a ground to test its validity if it is otherwise
valid. He further assured us that this Government was
committed
to free speech and that
Section 66A would not be
used to curb free speech, but would be used only when
excesses are perpetrated
by persons on the rights of others. o In The Collector of Customs, Madras v. Nathella
Sampathu Chetty & Anr., [1962] 3 S.C.R. 786, this Court
observed:
" .... This Court has held in numerous rulings, to which it is
unnecessary to refer, that the possibility of the abuse of
the
powers under the provisions contained in any statute
is no ground for
declaring the provision to be
unreasonable or void. Commenting on a passage in the
judgment of
the Court of
Appeal of Northern Ireland which
stated:
"If such powers are capable of being exercised
reasonably it is impossible to say that they may not also
be exercised unreasonably"
and treating this as a ground for holding the statute invalid
Viscount Simonds observed in Belfast
Corporation v. 0.0. Commission [ 1960AC 490 at pp.
520-521):
E
F
G
H
1056 SUPREME COURT REPORTS [2015] 5 S.C.R.
A "It appears to me that the short answer to this contention
(and I hope its shortness will not be regarded as
disrespect) is that the validity of a measure is not to be
determined by its application to particular cases .... If it
is not so exercised (i.e. if the powers are abused) it is
B open to challenge and there is no need for express
provision for
its
challenge in the statute."
The possibility of abuse of a statute otherwise valid does
not impart
to it any
element of invalidity. The converse
C must also follow that a statute which is otherwise invalid
as being unreasonable cannot be saved by its being
administered in a reasonable manner. The constitutional
'validity of the statute would have to be determined on the
D
E
basis of its provisions and on the ambit of its operation
as reasonably construed. If so judged it passes the test
of reasonableness, possibility of the powers conferred
. being improperly used is no ground for pronouncing the
law itself invalid and similarly if the law properly interpreted
and tested in the light of the requirements set out in Part
Ill of the Constitution does not pass the test it cannot be
pronounced valid merely because it is administered in a
manner
which might not
conflict with the constitutional
requirements." (at page 825)
F 92. In this case, it is the converse proposition which
would really apply if the learned Additional Solicitor General's
argument is to be accepted. If Section 66A is otherwise invalid,
it cannot be saved by an assurance from the learned Additional
Solicitor General that it will be administered in a reasonable
G
manner. Governments may come and Governments may go
but Section 66A goes on forever. An assurance from the
present Government even if carried out
faithfully would not bind
any successor Government. It must, therefore, be held that
H Section 66A must
be judged on its own merits without any
reference
to how
well it may be administered.
SHREYASINGHAL v. UNION OF INDIA[R. F. NARI MAN, J.] 1057
Severability:
93. The argument of the learned Additional Solicitor
General on this score is reproduced by us verbatim from one
of his written submissions:
·"Furthermore it is respectfully submitted that in the event
of Hon'ble Court not being satisfied about the
constitutional validity of either any expression or a part
of
the provision, the Doctrine of
Severability as enshrined
under Article 13 may be resorted to."
A
B
c
94. The submission is vague: the learned Additional
Solicitor General does not indicate which part or parts of
Section 66A can possibly be saved. This Court in Romesh
Thapparv.
The
State of Madras, [1950] S.C.R. 594 repelled
0
a contention of severability when it came to the courts enforcing
the fundamental right under Article 19(1)(a) in the following
terms:
"It was, however, argued that Section 9(1-A) could not
be considered wholly void, as, under Article 13(1), an
existing law inconsistent with a fundamental right is void
only to the extent of the inconsistency and no more. Insofar
as the securing of the public safety or the maintenance
of public order
would
include the security of the State,
the impugned provision, as applied to the latter purpose,
was covered by clause (2) of Article 19 and must, it was
said, be held to be valid. We are unable to accede to
this contention. Where a law purports to authorise the
imposition of restrictions on a fundamental right in
language wide enough to cover restrictions both within
and without the limits of constitutionally permissible
legislative action affecting such right, it is not possible to
uphold it even so far as it may be applied within the
constitutional limits, as it is not severable. So long as the
E
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1058
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SUPREME COURT REPORTS [2015] 5 S.C.R.
possibility of its being applied for purposes not
sanctioned by the Constitution cannot be ruled out, it must
be held to be wholly unconstitutional and void. In other
words, clause (2) of Article 19 having allowed the
· imposition of restrictions on the freedom of speech and
expression only in cases where danger to the State is
involved, an enactment, which is capable of being applied
to cases where no such danger could arise, cannot be
held to be constitutional and valid to any extent." (At page
603)
95. It has been held by us that Section 66A purports to
authorize the imposition of restrictions on the fundamental right
contained in Article 19(1)(a) in language wide enough to cover
restrictions both within and without the limits of constitutionally
D permissible legislative action. We have held following K.A.
Abbas' case (Supra) that the possibility of Section 66A being
applied for purposes not sanctioned by the Constitution cannot
be ruled out. It must, therefore, be held to be wholly
unconstitutional and void. Romesh Thappar's Case was
E distinguished in R.M.D. Chamarbaugwalla v. The Union of
India, [1957] S.C.R. 930 in the context of a right under Article
19(1 )(g) as follows:
F
G
H
"20. In Ramesh Thappar v. State of Madras [ (1950)
SCR 594] , the question was as to the validity of Section
9(1-A) of the Madras Maintenance of Public Order Act,
23 of 1949. That section authorised the Provincial
Government to prohibit the entry and circulation within
the
State of a newspaper
"for the purpose of securing
the public safety or the maintenance of public order."
Subsequent to the enactment of this statute, the
Constitution
came into force, and the
validity of the
impugned provision depended on whether it was
protected
by
Article 19(2), which saved "existing law
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1059
insofar as it relates to any matter which undermines the
security of or tends to overthrow the State." It was held by
this Court that as the purposes mentioned in Section 9( 1-
A) of the Madras Act were wider in amplitude than those
specified
in
Article 19(2), and as it was not possible to
split up Section 9(1-A) into what was within and what
was without the protection of Article 19(2), the provision
must fail in its entirety. That is really a decision that the
impugned provision was on its own contents inseverable.
It is not an authority for the position that even when a
,provision is severable, it must be struck down on the
ground that the principle of severability is inadmissible
when the invalidity of a statute arises by reason of its
contravening constitutional prohibitions. It should be
mentioned that the decision in Ramesh Thappar v. State
of Madras [ (1950) SCR 594] was referred to in State of
Bombay v. F.N. Balsara [ (1951) SCR 682) and State of
Bombay v. United Motors (India) Ltd. [ (1953) SCR 1069
at 1098-99] and distinguished."
A
B
c
D
96. The present being a case of an Article 19(1)(a) E
violation,
Romesh Thappar's judgment
would apply on all
fours. In an Article 19(1 )(g) challenge, there is no question of
a law being applied for purposes not sanctioned by the
Constitution for the simple reason that the eight subject matters F
of Article
19(2) are conspicuous by their absence in
Article
19(6) which only speaks of reasonable restrictions in the
interests of the general public. The present is a case where,
as has been held above, Section 66A does not fall within any
of the subject matters contained in Article 19(2) and the G
possibility of its being applied for purposes outside those
subject matters
is
clear. We therefore hold that no part of
Section 66A is severable and the provision as a whole must
be declared unconstitutional.
H
1060 SUPREME COURT REPORTS [2015] 5 S.C.R.
A Article 14
97. Counsel forthe petitioners have argued thatArticle
14 is also infringed in that an offence whose ingredients are
vague in nature is arbitrary and unreasonable and would result
B in arbitrary and discriminatory application of the criminal law.
Further, there is no intelligible differentia between the medium
of print, broadcast, and real live speech as opposed to speech
on the internet and, therefore, new categories of criminal
offences
cannot be made.on this ground.
Similar offences
C which are committed on the internet have a three year
maximum sentence under Section 66A as opposed to
defamation
which has a two year maximum sentence.
Also,
defamation is a non-cognizable offence whereas under Section
D
66A the offence is cognizable.
98. We have already held that Section 66A creates an
offence which is vague and overbroad, and, therefore,
unconstitutional under Article 19(1 )(a) and not saved by Article
19(2). We have also held that the wider range of circulation
E
over the internet cannot restrict the content of the right under Article 19(1 )(a) nor can it justify its denial. However, when we
come to discrimination under Article 14, we are unable to agree
with counsel for the petitioners that there is no intelligible
differentia between the medium of print, broadcast and real
F live speech as opposed to speech on the internet. The
intelligible differentia is clear-the internet gives any individual
a platform which requires very little or no payment through which
to air his views. The learned Additional Solicitor General has
correctly said that something posted on a site or website travels
G like lightning and can reach millions of persons all over the
world. If the petitioners were right, this Article 14 argument
would apply equally to all other offences created by the
Information Technology Act which are not the subject matter of
H challenge in these petitions. We make it clear that there is an
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1061
intelligible differentia between speech on the internet and other A
mediums of communication for which separate offences can
certainly be created by legislation. We find, therefore, that the
challenge on the ground of Article 14 must fail.
Procedural Unreasonableness B
99. One other argument must now be considered.
According
to the petitioners, Section 66A also suffers from
the vice of procedural unreasonableness.
In that, if, for example,
criminal defamation is alleged, the safeguards available under c ·
Section 199 Cr.P.C. would not be available for a like offence
committed under Section
66A.
Such safeguards are that no
court shall take cognizance of such an offence except upon a
complaint
made by some person aggrieved by the offence
and that such complaint
will have to be made within six months o
from the date on which the offence is alleged to have been
committed. Further, safeguards that are to be found in Sections
95 and 96 of the Cr.P.C. are also absent when it comes to
Section 66A. For example, where any newspaper book or
document wherever
printed appears to contain matter which E
is obscene, hurts the religious feelings of some community, is
seditious in nature, causes enmity or hatred to a certain
section of the
public, or is against national integration, such
book, newspaper or document may be seized but under
Section 96 any person having any interest in such newspaper, F
book or document
may within two months from the
date of a
publication
seizing such documents, books or newspapers
apply
to the High court to set aside such declaration.
Such
· matter is to be heard by a Bench consisting of at least three
Judges or
in High Courts which consist of less than three G
Judges,
such special Bench as may be composed of all the
Judges of that High Court.
100. It is clear that Sections 95 and 96 of the Criminal
Procedure Code reveal a certain degree of sensitivity to the H
1062 SUPREME COURT REPORTS [2015] 5 S.C.R.
A fundamental right to free speech and expression. If matter is
to be seized on specific grounds which are relatable to the
subject matters contained in Article 19(2), it would be open for
persons affected
by such seizure to get a declaration from a
High Court consisting of at least three Judges that in fact
B publication of
the
so-called offensive matter does not in fact
relate to any of the specified subjects contained in Article 19(2).
Further, Section 196 of the Cr.P.C. states:
"196. Prosecution for offences against the State and
c
for criminal conspiracy to commit such offence.-
(1) No Court shall take cognizance of-
(a) any offence punishable under Chapter VI or under
Section
153-A, [Section
295-.1 or sub-section ( 1) of
D
Section 505] of the Indian Penal Code, 1860 (45 of
1860), or
(b) a criminal conspiracy to commit such offence, or
( c) any such abetment, as is described in Section 108-A
E
of the Indian Penal Code (45of1860),
except with the previous sanction of the Central
Government or of the
State Government.
[(1-A)
F No Court shall take cognizance of-·
(a) any offence punishable under Section 153-B or sub-
section (2) or sub-section (3) of Section 505 of the Indian
Penal Code, 1860 (45of1860), or
G (b) a criminal conspiracy to commit such offence,
except with the previous sanction of the Central
Government or of the State Government or of the District
Magistrate.]
H (2) No court shall take cognizance of the offence of any
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.) 1063
criminal conspiracy punishable under Section 120-B of
the Indian Penal Code (45of1860), other than a criminal
conspiracy to commit [an offence) punishable with death,
imprisonment for life or rigorous imprisonment for a term
of two years or upwards, unless the State Government or
the District Magistrate
has consented in writing to the
initiation of the proceedings:
Provided that where the criminal conspiracy is one to
which the provisions of Section 195 apply, no such
consent shall be necessary.
(3) The Central Government or the State Government
may, before according sanction [under sub-section (1)
or sub-section (1-A) and the District Magistrate may,
before according sanction under sub-section (1-A)] and
the State Government or the District Magistrate may,
before giving consent under sub-section (2), order a
preliminary investigation
by a police officer not being
below the
rank of
Inspector, in which. case such police
officer shall have the powers referred to in sub-section
(3) of Section 155."
101. Again, for offences in the nature of promoting
enmity
between different groups on grounds of
religion etc. or
offences relatable to deliberate and malicious acts intending
A
B
c
D
E
to outrage religious feelings or statements that create or F
promote
enmity, hatred or
ill-will between classes can only be
taken cognizance of by courts with the previous sanction of
the Central Government or the State Government. This
procedural safeguard does not apply even when a similar
offence may be committed over the internet where a person is G
booked under Section 66A instead of the aforesaid Sections.
Having struck down Section 66A on substantive
grounds, we need not decide the procedural
unreasonableness aspect of
the
Section. H
1064 SUPREME COURT REPORTS [2015] 5 S.C.R.
A Section 118 of the Kerala Police Act.
102. Learned counsel for the Petitioner in Writ Petition
No. 196 of 2014 assailed sub-section {d) of Section 118 which
is set out hereinbelow:
B "118. Penalty for causing grave violation of public order
or danger.-Any
person who,-
(d) Causes annoyance to any person in an indecent
manner by statements or verbal or comments or C telephone calls or calls of any type or by chasing or
sending messages or mails by any means;
D
shall, on conviction be punishable with imprisonment for
a term which may extend to three years or with fine not
exceeding ten thousand rupees or with both."
103. Learned counsel first assailed the Section on
the ground of legislative competence stating that this being a
Kera la Act, it would fall outside Entries 1 and 2 of List 11 and fall
within Entry 31 of List I. In order to appreciate the argument we
E set out the relevant entries:
F
G
"List-I
31. Posts and telegraphs; telephones, wireless,
broadcasting and other like forms of communication.
List-II
1. Public order (but not including the use of any naval,
military or air force or any other armed force of the Union
or of any other force subject to the control of the Union or
of any contingent or unit thereof in aid of the civil power).
2. Police (including railway and village police) subject to
the provisions of entry 2A of List I."
The Kerala Police Act as a whole would necessarily
H fall under Entry 2 of Listi!. In addition, Section 118 would also
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1065
. fall within Entry 1 of List II in that as its marginal note tells us it A
deals with penalties for causing grave violation of public order
or danger.
104. It is well settled that a statute cannot be dissected
and then examined as to under what field of legislation each B
part would separately fall. In A.S. Krishna v. State of Madras,
[1957] S. C.R. 399, the law is stated thus:
"The position, then, might thus be summed up : When a
law is impugned on the ground that it is ultra vires the c
powers of the legislature which enacted it, what has to
be ascertained is the true character of the legislation. To
do that, one must have regard to the enactment as a
whole, to its objects and to the scope and effect of its
provisions. If on such examination it is found that the o
legislation is in substance one on a matter assigned to
the legislature, then it must be held to be valid in its
entirety, even though it might incidentally trench on matters
which are beyond its competence. It would be quite an
erroneous approach to the question to view such a statute E
not as an organic whole; but as a mere collection of
sections,
then disintegrate it into parts, examine under
what heads of
legislation those parts would severally fall,
and by that process determine what portions thereof are
intra vires, and what are not." (at page 410) F
105. It is, therefore, clear that the Kerala Police Act as
a whole and Section 118 as part thereof falls in pith and
substance within Entry 2 List II, notwithstanding a.ny incidental
encroachment that it may have made on any other Entry in List G
I. Even otherwise, the penalty created for causing annoyance
in an indecent manner in pith and substance would fall within
Entry 1 List Ill which speaks of criminal law and would thus be
within the competence of the State Legislature in any case.
H
1066 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 106. However, what has been said about Section 66A
would apply directly to Section 118(d) of the Kerala Police Act,
as causing annoyance in an indecent manner suffers from the
same type of vagueness and over breadth, that led to the
invalidity of Section 66A, and for the reasons given for striking
B down Section 66A, Section 118(d) also violates Article
19(1)(a) and not being a reasonable restriction on the said
right and not being saved under any of the subject matters
contained in Article 19(2) is hereby declared to be
unconstitutional.
c
Section 69A and the Information Technology (Procedure
and Safeguards
for
Blocking for Access of Information
by Public) Rules, 2009.
D 107. Section 69Aofthe Information Technology Act has
already been set out in paragraph 2 of the judgment. Under
sub-section (2) thereof, the 2009 Rules have been framed.
Under Rule 3, the Central Government shall designate by
notification in the official gazette an officer of the Central
. E Government not below the rank of a Joint Secretary as the
Designated Officer for the purpose of issuing direction for
blocking for access by the public any information referable to
Section 69A of the Act. Under Rule 4, every organization as
defined under Rule 2(g), (which refers to the Government of
F India, State Governments, Union Territories and agencies of
the Central Government as may be notified in the Official
Gazette by the Central Government)-is to designate one of
its officers as the "Nodal Officer". Under Rule 6, any person
may send their complaint to the "Nodal Officer" of the concerned
G Organization for blocking, which complaint will then have to be
examined by the concerned Organization regard being had to
the parameters laid down in Section 69A(1) and after being
so satisfied, shall transmit such complaint through its Nodal
H Officer to the Designated Officer in a format specified by the
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1067
Rules. The Designated Officer is not to entertain any complaint A
or request for blocking directly from any person. Under Rule
5, the Designated Officer may on receiving any such request
or complaint from the Nodal Officer of an Organization or from
a competent court, by order direct any intermediary or agency
of the Government to block any information or part thereof for B
the reasons specified
in 69A(1).
Under Rule 7 thereof, the
request/complaint shall then be examined by a Committee of
Government Personnel who under Rule 8 are first to make all
reasonable efforts to identify the originator or intermediary who
has hosted the information. If so identified, a notice shall issue C
to appear and submit their reply at a specified date and time
which shall not be less than 48 hours from the date and time of
receipt
of notice by such person or intermediary. The Committee then examines the request and is to consider D
whether
the request is covered by 69A(1) and is then to give a
specific
recommendation in writing to the
Nodal Officer of the
concerned Organization. It is only thereafter that the Designated
Officer is to submit the Committee's recommendation to the
Secretary, Department of Information Technology who is to E
approve
such requests or
complaints. Upon such approval,
the Designated Officer shall then direct any agency of
Government or intermediary to block the offending information.
Rule 9 provides for blockirg of information in cases of
emergency
where
delay caused would be fatal in which case F
the blocking may take place without any opportunity of hearing.
The Designated Officer shall then, not later than 48 hours of
the
issue of the interim direction, bring the request before the
Committee referred to
earlier, and only on the recommendation
of the Committee, is the Secretary Department of Information G
Technology to pass the final order. Under Rule 10, in the case
of an order of a competent court in India, the Designated
Officer shall, on receipt of a certified copy of a court order,
submit it to the Secretary, Department of Information
Technology and then initiate action as directed by the Court. H
1068 SUPREME COURT REPORTS [2015] 5 S.C.R.
A In addition to the above sateguards, under Rule 14 a Review
Committee shall meet at least once in two months and record
its findings as to whether directions·issued are in accordance
with Section 69A(1) and if it is of the contrary opinion, the
Review Committee may set aside such directions and issue
B orders to unblock the said information. Under Rule 16, strict
confidentiality shall be maintained regarding all the requests
and complaints received and actions taken thereof.
108. Learned counsel for the petitioners assailed the
C constitutional validity of Section 69A, and assailed the validity
of the 2009 Rules. According to learned counsel, there is no
pre-decisional hearing afforded by the Rules particularly to the
"originator" of information, which is defined under Section 2(za)
of the Act to mean a person who sends, generates, stores or
D transmits any electronic message; or causes any electronic
message to be sent, generated, stored or transmitted to any
other person. Further, procedural safeguards such as which
are provided under Section 95 and 96 of the Code of Criminal
Procedure are not available here. Also, the confidentiality
E
provision was
assailed stating that it affects the fundamental
rights of the petitioners.
109. It will be noticed that Section 69A unlike Section
66A is a narrowly drawn provision with several safeguards.
F First and foremost, blocking can only be resorted to where the
Central Government is satisfied that it is necessary so to do.
Secondly, such necessity is relatable only to some of the
subjects set out in Article 19(2). Thirdly, reasons have to be
recorded in writing in such blocking order so that they may be
G assailed in a writ petition under Article 226 of the Constitution.
110. The Rules further provide for a hearing before the
Committee set up -which Committee then looks into whether
or not it is necessary to block such information. It is only when
H the Committee finds that there is such a necessity that a
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1069
blocking order is made. It is also clear from an examination of A
Rule 8 that it is not merely the intermediary who may be heard.
If the "person" i.e. the originator is identified he is also to be
heard before a blocking order is passed. Above all, it is only
after these procedural safeguards are met that blocking orders
are made and in case there is a certified copy of a court order, B
only then can such blocking order also be made. It is only an
intermediary who finally fails to comply with the directions
issued who is punishable under sub-section (3) of Section 69A.
111. Merely because certain additional safeguards C
such as those found· in Section 95 and 96 CrPC are not
available does not make the Rules constitutionally infirm. We
are of the view that the Rules are not constitutionally infirm in
any manner.
Section 79 and the Information Technology (Intermediary
Guidelines) Rules, 2011.
D
112. Section 79 belongs to Chapter XII of the Act in
which intermediaries are exempt from liability if they fulfill the E
conditions of
the Section. Section 79 states:
"79. Exemption from liability of intermediary in certain
cases.-(1)
Notwithstanding anything contained in any law for the time being in force but subject to the provisions
of sub-sections (2) and (3), an intermediary shall not be
liable for any third party information, data, or
communication link made available or hosted by him.
(2) The provisions of sub-section ( 1) shall apply if-,
(a) the function of the intermediary is limited to providing
access to a communication system over which
information made available by third parties is transmitted
or temporarily stored or hosted; or
(b) the intermediary does not-
F
G
H
1070 SUPREME COURT REPORTS [2015] 5 S.C.R.
A (i) initiate the transmission,
B
c
D
E
F
(ii)
select the receiver of the transmission, and
(iii) select or modify the information contained in the
transmission;
(c) the intermediary observes due diligence while
discharging his duties under this Act and also observes
such other guidelines as the Central Government may
prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if-
(a) the intermediary has conspired or abetted or aided
or induced, whether by threats or promise or otherwise
in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified
by the appropriate Government or its agency that any
information, data or communication link residing in or
connected to a computer resource controlled by the
intermediary is being used to commit the unlawful act,
the intermediary fails to expeditiously remove or disable
access to that material on that resource without vitiating
the evidence in any manner.
Explanation.-For the purposes of this section, the
expression "third party information" means any
information dealt with by an intermediary in his capacity
as an intermediary.]"
113. Under the 2011 Rules, by Rule 3 an intermediary
has not only to publish the rules and regulations, privacy policy
G and user agreement for access or usage of the intermediary's
computer resource but he has also to inform all users of the
various matters set out in Rule 3(2). Since Rule 3(2) and 3(4)
are important, they are set out hereinbelow:-
H "3. Due diligence to be observed by intermediary.-
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1071
The intermediary shall observe following due diligence
while discharging his duties,
namely:-
(2)
Such rules and regulations, terms and conditions or
user agreement shall inform the users of computer
· resource not to host, display, upload, modify, publish,
transmit, update or share any information
that-
( a)
belongs to another person and to which the user does
not have any right to;
(b} is
grossly harmful, harassing, blasphemous
defamatory, obscene, pornographic, paedophilic,
libellous, invasive of another's privacy, hateful, or racially,
ethnically objectionable, disparaging, relating or
encouraging money laundering or gambling, or otherwise
unlawful in any manner whatever;
(c) harm minors
in anyway;
(d) infringes any patent, trademark, copyright
or other
proprietary rights;
A
B
c
D
( e) violates any law for the time being in force; E
·
(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; F
(h) contains software viruses or any other computer code,
files or programs designed to interrupt, destroy or limit
the functionality
of any computer resource;
(i) threatens the unity, integrity, defence, security or
sovereignty of
India, friendly relations with foreign states,
or public order or causes incitement to the commission
of any cognisable offence or prevents investigation of
any offence or is insulting any other nation.
(4) The intermediary, on whose computer system the
G
H
1072
A
B
c
SUPREME COURT REPORTS [2015] 5 S.C.R.
information is stored or hosted or published, upon
obtaining knowledge by itself or been brought to actual
knowledge by an affected person in writing or through e
mail signed with electronic signature about any such
information as mentioned in sub-rule (2) above, shall act
within thirty-six hours and where applicable, work with
user or owner of such information to disable such
information that is in contravention of sub-rule (2). Further
the intermediary shall preserve such information and
associated records for at least ninety days for
investigation purposes."
114. Learned counsel forthe petitioners assailed Rules
3(2) and 3(4) on two basic grounds. Firstly, the intermediary
is called upon to exercise its own judgment under sub-rule (4)
D and then disable information that is in contravention of sub
rule (2), when intermediaries by their very definition are only
persons who offer a neutral platform through which persons
may interact with each other over the internet. Further, no
safeguards are provided as in the 2009 Rules made under
E Section 69A. Also, for the very reasons that Section 66A is
bad, the petitioners assailed sub-rule (2) of Rule 3 saying that
it is vague and over broad and has no relation with the subjects
specified under Article 19(2).
F 115. One of the petitioners' counsel also assailed
Section 79(3)(b) to the extent that it makes the intermediary
exercise its own judgment upon receiving actual knowledge
that any information is being used to commit unlawful acts.
Further, the expression "unlawful acts" also goes way beyond
G the specified subjects delineated in Article 19(2).
116. It must first be appreciated that Section 79 is an
exemption provision. Being an exemption provision, it is
closely related to provisions which provide for offences
H including Section 69A. We have seen how under Section 69A
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 1073
blocking can take place only by a reasoned order after A
complying with several procedural safeguards including a
hearing to the originator and intermediary. We have also seen
how there are only two ways in which a blocking order can be
passed - one by the Designated Officer after complying with
the 2009 Rules and the other by the Designated Officer when B
he has to follow an order passed by a competent court. The
intermediary applying its own mind to whether information
should or should not be blocked is noticeably absent in Section
69A read with 2009 Rules.
117. Section 79(3)(b) has to be read down to mean
that the intermediary upon receiving actual knowledge that a
court order has been passed asking it to expeditiously remove
c
or disable access to certain material must then fail to
expeditiously
remove or
disable access to that material. This D
is for the reason that otherwise it would be very difficult for
intermediaries like Google, Facebook etc. to act when millions
of requests are made and the intermediary is then to judge as
to which of such requests are legitimate and which are not.
We have been informed that in other countries worldwide this E
view has gained acceptance, Argentina being in the forefront.
Also, the Court order and/or the notification by the appropriate
Government or its agency must strictly conform to the subject
matters laid down in Article 19(2). Unlawful acts beyond what F
is laid down in Article 19(2) obviously cannot form any part of
Section 79. With these two caveats, we refrain from striking
down Section 79(3)(b).
118. The learned Additional Solicitor General informed
us that it is a common practice worldwide for intermediaries G
to have user agreements containing what is stated in Rule 3(2).
However, Rule 3(4) needs to be read down in the same manner
as Section 79(3)(b). The knowledge spoken of in the said
sub-rule must only be through the medium of a court order. H
Subject to this, the Information Technology (Intermediaries
1074 SUPREME COURT REPORTS [2015) 5 S.C.R.
A Guidelines) Rules, 2011 are valid ..
B
c
D
E
F
119.
In conclusion, we may summarise what has been
held by us above:
(a) Section 66Aofthe Information Technology Act, 2000 is
struck down in its entirety being violative of Article
19(1 )(a) and not saved under Article 19(2).
(b) Section 69A and the Information Technology
(Procedure & Safeguards for Blocking for Access of
Information
by
Public) Rules 2009 are constitutionally
valid.
(c) Section 79 is valid subject to Section 79(3)(b) being
read down to mean that an intermediary upon receiving ·
actual knowledge from a court order or on being notified
by the appropriate government or ~s agency that unlawful
acts relatable to Article 19(2) are going to be committed
then fails to expeditiously remove or disable access to
such material. Similarly, the Information Technology
"Intermediary Guidelines" Rules, 2011 are valid subject
to Rule 3 sub-rule (4) being read down in the same
manner as indicated in the judgment.
( d) Section 118( d) of the Kera la Police Act is struck down
being violative of Article 19(1 )(a) and not saved by Article
19(2).
All th.e writ petitions are disposed in the above terms.
G Kalpana K. Tripathy Petitions disposed of.
Legal Notes
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