Tuesday, 24 March 2015

section-66-A- IT Act Strikes down by Supreme Court of India.

                                                           


The Supreme Court on Tuesday declared Section 66A of Information Technology Act as unconstitutional and struck it down.

This section had been widely misused by police in various states to arrest innocent persons for posting critical comments about social and political issues and political leaders on social networking sites.
The court said such a law hit at the root of liberty and freedom of expression, the two cardinal pillars of democracy. The court said the section has to be erased from the law books as it has gone much beyond the reasonable restrictions put by the Constitution on freedom of speech. The Supreme Court said section 66A was vaguely worded and allowed its misuse by police


-----------------------------------------------------------------------------------------------------------------------



[pic]REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                    CRIMINAL/CIVIL ORIGINAL JURISDICTION

                   WRIT PETITION (CRIMINAL) NO.167 OF 2012



SHREYA SINGHAL                                ... PETITIONER

                                   VERSUS

UNION OF INDIA                               ... RESPONDENT

                                    WITH



                     WRIT PETITION (CIVIL) NO.21 OF 2013

                     WRIT PETITION (CIVIL) NO.23 OF 2013

                    WRIT PETITION (CIVIL) NO. 97 OF 2013

                   WRIT PETITION (CRIMINAL) NO.199 OF 2013

                    WRIT PETITION (CIVIL) NO. 217 OF 2013

                   WRIT PETITION (CRIMINAL) NO.222 OF 2013

                   WRIT PETITION (CRIMINAL) NO.225 OF 2013

                    WRIT PETITION (CIVIL) NO.758 OF 2014

                   WRIT PETITION (CRIMINAL) NO.196 OF 2014



                               J U D G M E N T

R.F. NARIMAN, J.

1.         This batch of writ  petitions  filed  under  Article  32  of  the
Constitution of India  raises  very  important  and  far-reaching  questions
relatable primarily to the fundamental right of free speech  and  expression
guaranteed by Article 19(1)(a) of the Constitution of India.  The  immediate
cause for concern in these petitions  is  Section  66A  of  the  Information
Technology Act of 2000.  This Section was  not  in  the  Act  as  originally
enacted, but came into force by virtue of an  Amendment  Act  of  2009  with
effect from 27.10.2009.  Since all the arguments raised by  several  counsel
for the petitioners deal with the unconstitutionality of this Section it  is
set out hereinbelow:

"66-A. Punishment  for  sending  offensive  messages  through  communication
service, etc.-Any person who sends, by means of a  computer  resource  or  a
communication device,-


(a) any information that is grossly offensive or has menacing character; or


(b) any information which he knows to be  false,  but  for  the  purpose  of
causing  annoyance,  inconvenience,  danger,  obstruction,  insult,  injury,
criminal intimidation, enmity, hatred or ill will,  persistently  by  making
use of such computer resource or a communication device; or


(c) any electronic mail or  electronic  mail  message  for  the  purpose  of
causing  annoyance  or  inconvenience  or  to  deceive  or  to  mislead  the
addressee or recipient about the origin of such messages,


shall be punishable with imprisonment for a term which may extend  to  three
years and with fine.

Explanation.- For the purposes of this section, terms "electronic mail"  and
"electronic  mail  message"  means  a  message  or  information  created  or
transmitted or received on a computer, computer  system,  computer  resource
or communication device including attachments in text, image,  audio,  video
and  any  other  electronic  record,  which  may  be  transmitted  with  the
message."[1]

2.    A related challenge is also made to  Section  69A  introduced  by  the
same amendment which reads as follows:-


"69-A. Power to issue directions for  blocking  for  public  access  of  any
information through any computer resource.-(1) Where the Central  Government
or any of its  officers  specially  authorised  by  it  in  this  behalf  is
satisfied that it is necessary or expedient so to do,  in  the  interest  of
sovereignty and integrity of  India,  defence  of  India,  security  of  the
State, friendly relations  with  foreign  States  or  public  order  or  for
preventing incitement to the commission of any cognizable  offence  relating
to above, it may subject to the provisions of sub-section (2),  for  reasons
to be recorded in writing, by order, direct any agency of the Government  or
intermediary to block for access by the public or cause to  be  blocked  for
access by the  public  any  information  generated,  transmitted,  received,
stored or hosted in any computer resource.


(2) The procedure and safeguards subject to which such blocking  for  access
by the public may be carried out, shall be such as may be prescribed.


(3) The intermediary who fails to comply with  the  direction  issued  under
sub-section (1) shall be punished with an imprisonment for a term which  may
extend to seven years and shall also be liable to fine."

3.    The Statement of Objects  and  Reasons  appended  to  the  Bill  which
introduced the Amendment Act stated in paragraph 3 that:

"3. A rapid increase in the use of computer and internet has given  rise  to
new  forms  of  crimes  like  publishing  sexually  explicit  materials   in
electronic form, video voyeurism and breach of confidentiality  and  leakage
of data by intermediary, e-commerce frauds like personation  commonly  known
as Phishing, identity theft and  offensive  messages  through  communication
services.   So,  penal  provisions  are  required  to  be  included  in  the
Information Technology Act, the Indian Penal code, the Indian  Evidence  Act
and the code of Criminal Procedure to prevent such crimes."



4.    The petitioners contend that the very basis of Section 66A -  that  it
has given rise to new forms of crimes - is incorrect, and that Sections  66B
to 67C and various  Sections  of  the  Indian  Penal  Code  (which  will  be
referred to hereinafter) are good enough to deal with all these crimes.



5.    The petitioners' various counsel raised a large number  of  points  as
to the constitutionality of Section  66A.   According  to  them,  first  and
foremost Section 66A infringes the fundamental  right  to  free  speech  and
expression and is not saved by any of the eight subjects covered in  Article
19(2).  According to them, the causing of annoyance, inconvenience,  danger,
obstruction, insult, injury, criminal intimidation, enmity, hatred  or  ill-
will are all outside the purview of Article 19(2).  Further, in creating  an
offence, Section 66A suffers from the vice of vagueness because  unlike  the
offence created by Section 66 of the same Act, none of the  aforesaid  terms
are even attempted to be defined and cannot be  defined,  the  result  being
that innocent persons are roped in as  well  as  those  who  are  not.  Such
persons are not told clearly on which side of the line  they  fall;  and  it
would be open to the authorities to be as arbitrary and  whimsical  as  they
like in booking such persons under the  said  Section.   In  fact,  a  large
number of innocent persons have been booked and  many  instances  have  been
given in the form of a note to the  Court.   The  enforcement  of  the  said
Section would really be an insidious form  of  censorship  which  impairs  a
core value contained in Article 19(1)(a).  In  addition,  the  said  Section
has a chilling effect on the freedom of speech and  expression.   Also,  the
right of viewers is infringed as such chilling effect would  not  give  them
the benefit of many shades of grey in terms of various points of  view  that
could be viewed over the internet.

The petitioners also contend that their rights under Articles 14 and 21  are
breached inasmuch there is no intelligible  differentia  between  those  who
use the internet and those who by words spoken or written use other  mediums
of communication. To punish somebody because he uses a particular medium  of
communication is itself a discriminatory  object  and  would  fall  foul  of
Article 14 in any case.



6.    In reply, Mr.  Tushar  Mehta,  learned  Additional  Solicitor  General
defended  the  constitutionality  of  Section  66A.  He  argued   that   the
legislature is in the best position to understand and appreciate  the  needs
of the people.  The Court will, therefore, interfere  with  the  legislative
process only when a statute is clearly violative of the rights conferred  on
the citizen under Part-III of the Constitution.   There is a presumption  in
favour of the constitutionality of an enactment.  Further, the  Court  would
so construe a statute to make it workable and in doing so can read  into  it
or read down the provisions that are impugned.  The  Constitution  does  not
impose impossible standards of determining validity.   Mere  possibility  of
abuse of a provision cannot be a ground  to  declare  a  provision  invalid.
Loose language may have been used in Section 66A to deal with novel  methods
of disturbing other people's rights by using the internet as a  tool  to  do
so.   Further,  vagueness  is  not   a   ground   to   declare   a   statute
unconstitutional if the statute is  otherwise  legislatively  competent  and
non-arbitrary.  He cited a large number of judgments  before  us  both  from
this Court and from overseas to buttress his submissions.

Freedom of Speech and Expression

Article 19(1)(a) of the Constitution of India states as follows:

"Article 19. Protection of certain rights regarding freedom of speech, etc.-
(1) All citizens shall have the right-

(a) to freedom of speech and expression;"



7.    Article 19(2) states:

"Article 19. Protection of certain rights regarding freedom of speech, etc.-
(2) Nothing in sub-clause (a) of clause (1) shall affect  the  operation  of
any existing law, or prevent the State from making any law,  in  so  far  as
such law imposes reasonable  restrictions  on  the  exercise  of  the  right
conferred by the said sub-clause in the interests  of  the  sovereignty  and
integrity of India, the security  of  the  State,  friendly  relations  with
foreign States,  public  order,  decency  or  morality  or  in  relation  to
contempt of court, defamation or incitement to an offence."



8.    The Preamble of  the  Constitution  of  India  inter  alia  speaks  of
liberty of thought, expression, belief, faith and  worship.   It  also  says
that India is a sovereign democratic republic. It cannot be over  emphasized
that when it comes to democracy, liberty of  thought  and  expression  is  a
cardinal value that is of paramount significance  under  our  constitutional
scheme.



9.    Various judgments of this Court have referred  to  the  importance  of
freedom of speech and expression both from the point of view of the  liberty
of the individual and from the point of  view  of  our  democratic  form  of
government.  For example, in the early case of Romesh Thappar  v.  State  of
Madras, [1950] S.C.R. 594 at 602, this Court stated that freedom  of  speech
lay at the foundation of all democratic organizations.  In Sakal Papers  (P)
Ltd. & Ors. v. Union of India, [1962] 3 S.C.R. 842 at  866,  a  Constitution
Bench of this Court said freedom of speech and expression of opinion  is  of
paramount  importance  under  a  democratic  constitution  which   envisages
changes in the composition of  legislatures  and  governments  and  must  be
preserved.  In a  separate  concurring  judgment  Beg,J.  said,  in  Bennett
Coleman & Co. & Ors. v. Union of India & Ors., [1973] 2 S.C.R. 757  at  829,
that the freedom of speech and of the press is the Ark of  the  Covenant  of
Democracy because public criticism  is  essential  to  the  working  of  its
institutions.[2]



10.   Equally, in S. Khushboo v. Kanniamal & Anr., (2010)  5  SCC  600  this
Court stated, in paragraph 45 that the importance of freedom of  speech  and
expression though  not  absolute  was  necessary  as  we  need  to  tolerate
unpopular views. This right requires the free flow  of  opinions  and  ideas
essential to  sustain  the  collective  life  of  the  citizenry.  While  an
informed  citizenry  is  a  pre-condition  for  meaningful  governance,  the
culture of open dialogue is generally of great societal importance.

11.   This last judgment is important in  that  it  refers  to  the  "market
place of ideas" concept that has permeated American Law.  This  was  put  in
the felicitous words of Justice Holmes in his famous dissent  in  Abrams  v.
United States, 250 US 616 (1919), thus:

"But when men have realized that time has upset many fighting  faiths,  they
may come to believe even more than they  believe  the  very  foundations  of
their own conduct that the ultimate good desired is better reached  by  free
trade in ideas-that the best test of truth is the power of  thought  to  get
itself accepted in the competition of the market,  and  that  truth  is  the
only ground upon which their wishes safely can be carried out. That  at  any
rate is the theory of our Constitution."



12.   Justice Brandeis in his  famous  concurring  judgment  in  Whitney  v.
California, 71 L. Ed. 1095 said:


"Those who won our independence believed that the final  end  of  the  state
was to make men free to develop their faculties, and that in its  government
the deliberative forces should  prevail  over  the  arbitrary.  They  valued
liberty both as an end and as a means.  They  believed  liberty  to  be  the
secret of happiness and courage to be the secret of liberty.  They  believed
that freedom to think as you will and  to  speak  as  you  think  are  means
indispensable to the discovery and spread of political truth;  that  without
free speech and  assembly  discussion  would  be  futile;  that  with  them,
discussion affords ordinarily adequate protection against the  dissemination
of noxious doctrine; that  the  greatest  menace  to  freedom  is  an  inert
people; that public discussion is a political duty; and that this should  be
a fundamental principle of the  American  government.  They  recognized  the
risks to which all human institutions are subject. But they knew that  order
cannot be secured merely through fear  of  punishment  for  its  infraction;
that it is hazardous to discourage thought, hope and imagination; that  fear
breeds repression; that repression breeds hate;  that  hate  menaces  stable
government; that the path of safety  lies  in  the  opportunity  to  discuss
freely supposed grievances and  proposed  remedies;  and  that  the  fitting
remedy for evil counsels is good ones. Believing in the power of  reason  as
applied through public discussion, they eschewed silence coerced by  law-the
argument of force in its worst form. Recognizing  the  occasional  tyrannies
of governing majorities, they amended the Constitution so that  free  speech
and assembly should be guaranteed.


Fear of serious injury cannot alone justify suppression of free  speech  and
assembly. Men feared witches and burnt women. It is the function  of  speech
to free men from the bondage of irrational fears. To justify suppression  of
free speech there must be reasonable ground to fear that serious  evil  will
result if free speech is practiced.  There  must  be  reasonable  ground  to
believe that the danger apprehended is imminent. There  must  be  reasonable
ground to believe that the evil to be prevented  is  a  serious  one.  Every
denunciation  of  existing  law  tends  in  some  measure  to  increase  the
probability that there will be violation  of  it. Condonation  of  a  breach
enhances the probability. Expressions of approval add  to  the  probability.
Propagation of the criminal state of mind by teaching syndicalism  increases
it. Advocacy of lawbreaking heightens it still further.  But  even  advocacy
of violation, however reprehensible morally,  is  not  a  justification  for
denying free speech where the advocacy falls short of incitement  and  there
is nothing to indicate that the advocacy would be immediately acted on.  The
wide difference between advocacy and  incitement,  between  preparation  and
attempt, between assembling and conspiracy, must be borne in mind. In  order
to support a finding of clear and present danger it  must  be  shown  either
that immediate serious violence was to be  expected  or  was  advocated,  or
that the past conduct furnished reason to believe  that  such  advocacy  was
then contemplated." (at page 1105, 1106)



13.   This leads  us  to  a  discussion  of  what  is  the  content  of  the
expression "freedom of speech and expression".   There  are  three  concepts
which are fundamental in understanding the  reach  of  this  most  basic  of
human rights.  The first is discussion, the  second  is  advocacy,  and  the
third is incitement.  Mere discussion  or  even  advocacy  of  a  particular
cause howsoever unpopular is at the heart of Article 19(1)(a).  It  is  only
when such discussion or  advocacy  reaches  the  level  of  incitement  that
Article 19(2) kicks in.[3]  It is at this stage  that  a  law  may  be  made
curtailing the speech or expression that leads inexorably  to  or  tends  to
cause public disorder or tends to cause or tends to affect  the  sovereignty
& integrity of India, the security of the  State,  friendly  relations  with
foreign States, etc. Why it is important to have  these  three  concepts  in
mind is because most of the arguments of both  petitioners  and  respondents
tended to veer around the expression "public order".

14.   It is at this point that a word needs to be  said  about  the  use  of
American judgments in the context of Article 19(1)(a).  In  virtually  every
significant judgment of this Court, reference has  been  made  to  judgments
from across the Atlantic.  Is it safe to do so?



15.   It is significant to notice  first  the  differences  between  the  US
First Amendment and Article 19(1)(a) read with  Article  19(2).   The  first
important difference is the absoluteness  of  the  U.S.  first  Amendment  -
Congress shall make no law which abridges the freedom  of  speech.   Second,
whereas the U.S. First Amendment speaks of freedom  of  speech  and  of  the
press, without any reference to "expression",  Article  19(1)(a)  speaks  of
freedom of speech and expression  without  any  reference  to  "the  press".
Third, under the US Constitution, speech may be abridged, whereas under  our
Constitution, reasonable restrictions may  be  imposed.  Fourth,  under  our
Constitution  such  restrictions  have  to  be  in  the  interest  of  eight
designated  subject  matters  -  that  is  any  law  seeking  to  impose   a
restriction on the  freedom  of  speech  can  only  pass  muster  if  it  is
proximately related to any of the eight subject matters set out  in  Article
19(2).



16.   Insofar as the  first  apparent  difference  is  concerned,  the  U.S.
Supreme Court has  never  given  literal  effect  to  the  declaration  that
Congress shall make no law abridging the freedom of  speech.   The  approach
of the Court which is succinctly stated in one of  the  early  U.S.  Supreme
Court Judgments, continues even today.  In Chaplinsky v. New  Hampshire,  86
L. Ed. 1031, Justice Murphy who delivered the opinion of the  Court  put  it
thus:-

"Allowing the broadest scope to the language and purpose of  the  Fourteenth
Amendment, it is well understood that  the  right  of  free  speech  is  not
absolute at all times and under all circumstances. There are  certain  well-
defined  and  narrowly  limited  classes  of  speech,  the  prevention   and
punishment of which has never  been  thought  to  raise  any  Constitutional
problem. These include the lewd and obscene, the profane, the libelous,  and
the insulting or  'fighting'  words-those  which  by  their  very  utterance
inflict injury or tend to incite an immediate breach of  the  peace. It  has
been well observed that  such  utterances  are  no  essential  part  of  any
exposition of ideas, and are of such slight social value as a step to  truth
that any benefit that may be derived from them is clearly outweighed by  the
social interest in order  and  morality. 'Resort  to  epithets  or  personal
abuse is not in any proper sense communication  of  information  or  opinion
safeguarded by the Constitution, and its punishment as a criminal act  would
raise no question under that instrument.' Cantwell v. Connecticut, 310  U.S.
296, 309, 310, 60 S.Ct. 900, 906, 84  L.Ed.1213,  128  A.L.R.  1352."    (at
page 1035)



17.   So far as the second apparent difference is  concerned,  the  American
Supreme Court has included "expression" as part of  freedom  of  speech  and
this  Court  has  included  "the  press"  as  being  covered  under  Article
19(1)(a), so that, as a matter of judicial interpretation, both the  US  and
India protect the  freedom  of  speech  and  expression  as  well  as  press
freedom.  Insofar as abridgement and reasonable restrictions are  concerned,
both the U.S. Supreme Court and this Court have held that a  restriction  in
order to be reasonable must be narrowly tailored or narrowly interpreted  so
as to abridge or restrict only what is  absolutely  necessary.  It  is  only
when it comes to the eight subject matters that there is a vast  difference.
 In the U.S., if there is a compelling necessity  to  achieve  an  important
governmental or societal goal, a law abridging freedom of  speech  may  pass
muster.  But in India, such law cannot pass muster if it is in the  interest
of the general public.  Such law has to be  covered  by  one  of  the  eight
subject matters set out under  Article  19(2).   If  it  does  not,  and  is
outside the pale of 19(2), Indian courts will strike down such law.

18.   Viewed from the  above  perspective,  American  judgments  have  great
persuasive value on the content of freedom of speech and expression and  the
tests laid down for its infringement.  It is only  when  it  comes  to  sub-
serving  the  general  public  interest  that  there  is  the  world  of   a
difference. This is perhaps why in Kameshwar Prasad & Ors. v. The  State  of
Bihar & Anr., 1962 Supp. (3) S.C.R. 369, this Court held:

"As regards these decisions of the American Courts, it should  be  borne  in
mind that though the First Amendment  to  the  Constitution  of  the  United
State reading "Congress shall make  no  law....  abridging  the  freedom  of
speech..." appears to  confer  no  power  on  the  Congress  to  impose  any
restriction on the exercise of the guaranteed right,  still  it  has  always
been understood that the freedom guaranteed is subject to the  police  power
- the scope of  which  however  has  not  been  defined  with  precision  or
uniformly. It is on the basis of the police power to  abridge  that  freedom
that the constitutional  validity  of  laws  penalising  libels,  and  those
relating to sedition, or to obscene publications etc., has  been  sustained.
The resultant flexibility of the restrictions that could be validly  imposed
renders the American decisions inapplicable to  and  without  much  use  for
resolving  the  questions  arising  under  Art. 19(1) (a)  or  (b)  of   our
Constitution wherein the grounds on which limitations  might  be  placed  on
the guaranteed right are set out with  definiteness  and  precision."  (  At
page 378)



19.   But when it comes to understanding the impact and content  of  freedom
of speech, in Indian Express Newspapers (Bombay) Private Limited &  Ors.  v.
Union of India & Ors., (1985) 2 SCR 287, Venkataramiah,J. stated:

 "While examining the  constitutionality  of  a  law  which  is  alleged  to
contravene Article 19 (1) (a) of the Constitution, we cannot, no  doubt,  be
solely guided by the decisions of the Supreme Court of the United States  of
America. But in order to understand  the  basic  principles  of  freedom  of
speech and expression  and  the  need  for  that  freedom  in  a  democratic
country, we may take them into consideration. The pattern of Article 19  (1)
(a) and of Article 19 (1) (g) of our  constitution  is  different  from  the
pattern of the First Amendment to the American Constitution which is  almost
absolute in its terms. The rights guaranteed under Article 19  (1)  (a)  and
Article 19 (1) (g) of the Constitution are to be  read  along  with  clauses
(2) and (6) of Article 19 which carve out areas in respect  of  which  valid
legislation can be made." (at page 324)



20.   With these prefatory remarks, we will now go to the other  aspects  of
the challenge made in these writ petitions and argued before us.

A. Article 19(1)(a) -

Section 66A has been challenged on the ground that it  casts  the  net  very
wide - "all information" that is disseminated over the internet is  included
within its  reach.   It  will  be  useful  to  note  that  Section  2(v)  of
Information Technology Act, 2000 defines information as follows:

"2. Definitions.-(1) In this Act, unless the context otherwise requires,-
(v)  "Information"  includes data,  message,  text,  images,  sound,  voice,
codes,  computer  programmes,  software  and  databases  or  micro  film  or
computer generated micro fiche."


Two things will  be  noticed.  The  first  is  that  the  definition  is  an
inclusive one.  Second, the definition does not refer to  what  the  content
of information can be.  In fact, it refers only to the medium through  which
such  information  is  disseminated.   It  is  clear,  therefore,  that  the
petitioners are correct in  saying  that  the  public's  right  to  know  is
directly affected by Section 66A.  Information of all kinds is  roped  in  -
such information may have scientific, literary or  artistic  value,  it  may
refer to  current  events,  it  may  be  obscene  or  seditious.  That  such
information may cause annoyance or inconvenience to some is how the  offence
is made out.  It is clear that the right of the people to know - the  market
place of ideas - which the internet provides to  persons  of  all  kinds  is
what attracts Section 66A.  That the information sent has  to  be  annoying,
inconvenient, grossly offensive etc., also  shows  that  no  distinction  is
made between mere discussion or advocacy  of  a  particular  point  of  view
which may be annoying or inconvenient  or  grossly  offensive  to  some  and
incitement by which such words lead to an imminent  causal  connection  with
public disorder, security of  State  etc.   The  petitioners  are  right  in
saying that Section 66A in creating an offence against persons who  use  the
internet and annoy or cause inconvenience to  others  very  clearly  affects
the freedom of speech and expression of the citizenry of India at  large  in
that such speech or expression is directly curbed by  the  creation  of  the
offence contained in Section 66A.

In  this  regard,  the  observations  of   Justice   Jackson   in   American
Communications Association v. Douds, 94 L. Ed. 925 are apposite:

"Thought control is a copyright of totalitarianism, and we have no claim  to
it.  It is not the function of our  Government  to  keep  the  citizen  from
falling into  error;  it  is  the  function  of  the  citizen  to  keep  the
Government from falling into error.  We could justify  any  censorship  only
when the censors are better shielded against error than the censored."



Article 19(2)

One challenge to Section 66A made by the petitioners' counsel  is  that  the
offence created by the said Section has no proximate relation  with  any  of
the eight subject matters contained in Article 19(2).  We  may  incidentally
mention that the State has claimed that the said Section  can  be  supported
under the heads of public order, defamation, incitement to  an  offence  and
decency or morality.



21.   Under our constitutional scheme, as stated earlier, it is not open  to
the State to curtail  freedom  of  speech  to  promote  the  general  public
interest.  In Sakal Papers (P) Ltd. & Ors.  v.  Union  of  India,  [1962]  3
S.C.R. 842, this Court said:

"It may well be within the power of the State to place, in the  interest  of
the general public, restrictions upon the right of a  citizen  to  carry  on
business but it is not open to the State to achieve this object by  directly
and immediately curtailing any other freedom of that citizen  guaranteed  by
the Constitution and which is not susceptible  of  abridgment  on  the  same
grounds as are set out in clause (6) of Article 19. Therefore, the right  of
freedom  of  speech  cannot  be  taken  away  with  the  object  of  placing
restrictions on the business activities of a citizen. Freedom of speech  can
be restricted only in the interests of the security of the  State,  friendly
relations with foreign State,  public  order,  decency  or  morality  or  in
relation to contempt of court, defamation or incitement to  an  offence.  It
cannot, like the freedom to carry on business, be curtailed in the  interest
of the general public. If a law directly affecting it is challenged,  it  is
no answer that the restrictions enacted by it are justifiable under  clauses
(3) to (6). For,  the  scheme  of  Article  19  is  to  enumerate  different
freedoms separately and then to specify the extent of restrictions to  which
they may be subjected and the objects  for  securing  which  this  could  be
done. A citizen is entitled to enjoy each and  every  one  of  the  freedoms
together and clause (1) does not prefer one freedom to another. That is  the
plain meaning of this clause. It follows from this  that  the  State  cannot
make a law which directly  restricts  one  freedom  even  for  securing  the
better enjoyment of another freedom. All the greater reason,  therefore  for
holding that the State cannot directly restrict one freedom  by  placing  an
otherwise permissible restriction on another freedom." (at page 863)



22.   Before we come to each of these expressions, we must  understand  what
is meant by the expression "in the interests of".   In  The  Superintendent,
Central Prison, Fatehgarh v. Ram Manohar Lohia, [1960] 2  S.C.R.  821,  this
Court laid down:

"We do not understand the observations of the Chief  Justice  to  mean  that
any remote or fanciful connection between the impugned Act  and  the  public
order would be  sufficient  to  sustain  its  validity.  The  learned  Chief
Justice was only making a distinction between an  Act  which  expressly  and
directly purported to maintain public order and one which did not  expressly
state the said purpose but left it to be implied there from; and between  an
Act that directly maintained public order and that indirectly brought  about
the same result. The distinction does not ignore the necessity for  intimate
connection between the Act and the public order sought to be  maintained  by
the Act." (at pages 834, 835)

"The restriction made "in the interests of  public  order"  must  also  have
reasonable relation to the object to be achieved, i.e.,  the  public  order.
If the restriction has no  proximate  relationship  to  the  achievement  of
public order, it cannot  be  said  that  the  restriction  is  a  reasonable
restriction within the meaning of the said clause." (at page 835)



"The decision, in our view, lays  down  the  correct  test.  The  limitation
imposed in the interests of public order to  be  a  reasonable  restriction,
should be one which has a proximate connection or nexus with  public  order,
but not one far-fetched, hypothetical or problematical or too remote in  the
chain of its relation with the public order..........There is  no  proximate
or even foreseeable connection  between  such  instigation  and  the  public
order sought to be protected under section. We cannot  accept  the  argument
of the learned Advocate General that instigation of a single individual  not
to pay tax or  dues  is  a  spark  which  may  in  the  long  run  ignite  a
revolutionary movement destroying public order" (at page 836).





Reasonable Restrictions:

23.   This Court has laid  down  what  "reasonable  restrictions"  means  in
several cases.  In Chintaman Rao v. The  State  of  Madhya  Pradesh,  [1950]
S.C.R. 759, this Court said:
"The phrase "reasonable restriction" connotes that  the  limitation  imposed
on a person in enjoyment of the right should  not  be  arbitrary  or  of  an
excessive nature, beyond what is required in the interests  of  the  public.
The word "reasonable" implies intelligent care and  deliberation,  that  is,
the choice of a course which reason dictates. Legislation which  arbitrarily
or excessively invades the right cannot be said to contain  the  quality  of
reasonableness and unless it strikes a proper balance  between  the  freedom
guaranteed in article 19(1)(g) and the social control  permitted  by  clause
(6) of article 19, it must be held to be  wanting  in  that  quality."   (at
page 763)



24.   In State of Madras v. V.G. Row, [1952] S.C.R. 597, this Court said:

"This Court had occasion in Dr. Khare's case (1950)  S.C.R.  519  to  define
the scope of the judicial review under clause  (5)  of  Article19 where  the
phrase "imposing reasonable restriction on the exercise of the  right"  also
occurs and four out  of  the  five  Judges  participating  in  the  decision
expressed the view (the other Judge leaving the  question  open)  that  both
the substantive and the procedural aspects of the impugned  restrictive  law
should be examined from the point of view  of  reasonableness;  that  is  to
say, the Court should consider not only factors such  as  the  duration  and
the extent of the restrictions, but also the circumstances under  which  and
the manner in which their imposition has been authorised.  It  is  important
in this context to bear in mind that the test of reasonableness, where  ever
prescribed, should be applied to each, individual statute  impugned  and  no
abstract standard, or general pattern of reasonableness can be laid down  as
applicable to all cases. The nature  of  the  right  alleged  to  have  been
infringed, the underlying purpose of the  restriction  imposed,  the  extent
and urgency of the evil sought to be remedied thereby, the disproportion  of
the imposition, the prevailing conditions at  the  time,  should  all  enter
into the judicial verdict. In evaluating such elusive  factors  and  forming
their own conception of what is reasonable, in all the  circumstances  of  a
given case, it is inevitable that the social philosophy  and  the  scale  of
values of the judges participating in the decision should play an  important
part, and the limit to their interference with legislative judgment in  such
cases can only be dictated  by  their  sense  of  responsibility  and  self-
restraint and the sobering reflection that the  Constitution  is  meant  not
only for people of their way of thinking but for all, and that the  majority
of the elected representatives  of  the  people  have,  in  authorising  the
imposition of the restrictions, considered them to be reasonable." (at  page
606-607)




25.   Similarly, in Mohd. Faruk v. State of Madhya Pradesh & Ors., [1970]  1
S.C.R. 156, this Court said:

"The Court must in considering the validity of the impugned law  imposing  a
prohibition on the carrying on of  a  business  or  profession,  attempt  an
evaluation of its direct and immediate impact upon  the  fundamental  rights
of the citizens affected thereby and the larger public  interest  sought  to
be ensured in the light of the object sought to be achieved,  the  necessity
to restrict the citizen's freedom, the inherent  pernicious  nature  of  the
act prohibited or its capacity or tendency to  be  harmful  to  the  general
public, the possibility of achieving the object by imposing a  less  drastic
restraint, and  in  the  absence  of  exceptional  situations  such  as  the
prevalence of a state of emergency-national or  local-or  the  necessity  to
maintain essential supplies, or the necessity to stop activities  inherently
dangerous, the existence  of  a  machinery  to  satisfy  the  administrative
authority that no case for imposing the restriction is made out  or  that  a
less drastic restriction may ensure the object  intended  to  be  achieved."
(at page 161)




26.   In  Dr.  N.  B.  Khare  v.  State  of  Delhi,  [1950]  S.C.R.  519,  a
Constitution Bench also spoke of reasonable restrictions when  it  comes  to
procedure.  It said:

"While the reasonableness of the restrictions  has  to  be  considered  with
regard to the exercise of the right, it does not  necessarily  exclude  from
the consideration of  the  Court  the  question  of  reasonableness  of  the
procedural part of the law. It is obvious that if the  law  prescribes  five
years externment or ten years externment, the question whether  such  period
of externment is reasonable, being the substantive part, is necessarily  for
the consideration of the court under  clause  (5).  Similarly,  if  the  law
provides the procedure  under  which  the  exercise  of  the  right  may  be
restricted, the same is also for the consideration of the Court, as  it  has
to determine if the exercise of the right has been  reasonably  restricted."
(at page 524)





27.   It was argued by the  learned  Additional  Solicitor  General  that  a
relaxed standard of reasonableness of restriction should apply regard  being
had to the fact that the medium of speech being the  internet  differs  from
other mediums on several grounds.  To appreciate the width and scope of  his
submissions, we are setting out his written submission verbatim:

"(i)  the reach of print media is restricted to one state  or  at  the  most
one country while internet has no boundaries and its reach is global;



(ii)  the recipient of the free speech and expression used in a print  media
can only be literate persons while internet can be accessed by literate  and
illiterate both since one click is needed to download an objectionable  post
or a video;



(iii) In case of televisions serials [except live shows] and  movies,  there
is a permitted pre- censorship'  which  ensures  right  of  viewers  not  to
receive any information which is dangerous to or not in conformity with  the
social interest. While in the case of an internet,  no  such  pre-censorship
is possible and each individual is publisher,  printer,  producer,  director
and broadcaster of the content without any statutory regulation;



In case of print media or medium of television and films whatever  is  truly
recorded can only be published or broadcasted I televised  I  viewed.  While
in case of an internet, morphing of images, change of voices and many  other
technologically advance methods to create serious potential social  disorder
can be applied.



 By the medium of internet, rumors having a serious potential of creating  a
serious  social disorder can be spread to trillions of  people  without  any
check which is not possible in case of other mediums.



 In case of mediums like print media, television and films,  it  is  broadly
not possible to invade privacy of unwilling persons. While  in  case  of  an
internet, it is very easy to invade upon the privacy of any  individual  and
thereby violating his right under Article 21 of the Constitution of India.



 By its very nature, in the mediums like newspaper, magazine, television  or
a movie, it is not possible to sexually harass someone, outrage the  modesty
of anyone, use unacceptable filthy language and evoke communal frenzy  which
would lead to serious social disorder. While in the case of an internet,  it
is easily possible to do so  by  a  mere  click  of  a  button  without  any
geographical  limitations and almost in all cases while ensuring   anonymity
of the offender.



 By the very nature of the medium,  the  width  and  reach  of  internet  is
manifold as against newspaper and  films.  The  said  mediums  have  inbuilt
limitations i.e. a person will have to buy / borrow a  newspaper  and  /  or
will have to go to a theater to watch  a  movie.  For  television  also  one
needs at least a room where a television is placed and can only watch  those
channels which he has subscribed and that too only at a  time  where  it  is
being telecast. While in case of an internet a person abusing the  internet,
can commit  an  offence  at  any  place  at  the  time  of  his  choice  and
maintaining his anonymity in almost all cases.

(ix)  In case of other mediums, it is impossible to maintain anonymity as  a
result of which speech  ideal opinions films  having  serious  potential  of
creating a social disorder never gets generated since its  origin  is  bound
to be known. While in case of an  internet  mostly  its  abuse  takes  place
under the garb of anonymity  which  can  be  unveiled  only  after  thorough
investigation.

(x)   In case of other mediums like newspapers,  television  or  films,  the
approach is always institutionalized approach governed by industry  specific
ethical norms of self conduct. Each newspaper / magazine / movie  production
house / TV Channel will have their own institutionalized policies  in  house
which would generally obviate any possibility of the  medium  being  abused.
As against that  use  of  internet  is  solely  based  upon  individualistic
approach of  each  individual  without  any  check,  balance  or  regulatory
ethical norms for exercising freedom of speech and expression under  Article
19[ 1] [a].

(xi)   In the era limited to print media and cinematograph; or even in  case
of publication  through  airwaves,  the  chances  of  abuse  of  freedom  of
expression  was  less  due  to  inherent  infrastructural   and   logistical
constrains. In the case of said mediums, it was  almost  impossible  for  an
individual to create and publish an abusive content and  make  it  available
to trillions of people. Whereas,  in  the  present  internet  age  the  said
infrastructural  and  logistical  constrains   have   disappeared   as   any
individual using even a smart mobile phone or  a  portable  computer  device
can create and publish abusive material on its own, without seeking help  of
anyone else and make it  available  to  trillions  of  people  by  just  one
click."



28.   As stated, all the above factors may make a  distinction  between  the
print and other media as opposed to the internet  and  the  legislature  may
well, therefore, provide for separate offences so far as  free  speech  over
the  internet  is  concerned.   There   is,   therefore,   an   intelligible
differentia having a rational relation to the object sought to  be  achieved
- that there can be creation of offences which are applied  to  free  speech
over the internet alone  as  opposed  to  other  mediums  of  communication.
Thus, an Article 14 challenge has been repelled by us on this  ground  later
in this judgment.  But we do not find anything in the features  outlined  by
the learned Additional Solicitor General to relax the  Court's  scrutiny  of
the curbing of the content of free speech over the internet.  While  it  may
be possible to narrowly draw a Section  creating  a  new  offence,  such  as
Section 69A for instance, relatable only to speech over  the  internet,  yet
the validity of such a law will have to be tested on the touchstone  of  the
tests already indicated above.



29.    In  fact,  this  aspect  was  considered  in  Secretary  Ministry  of
Information & Broadcasting, Government of India v.  Cricket  Association  of
Bengal, (1995) 2 SCC 161 in  para  37,  where  the  following  question  was
posed:

"The next question which is required to be answered is whether there is  any
distinction between  the  freedom  of  the  print  media  and  that  of  the
electronic media such as  radio  and  television,  and  if  so,  whether  it
necessitates more restrictions on the latter media."



This question was answered in para 78 thus:

"There is  no  doubt  that  since  the  airwaves/frequencies  are  a  public
property and are also limited, they have to be used in the best interest  of
the society  and  this  can  be  done  either  by  a  central  authority  by
establishing its  own  broadcasting  network  or  regulating  the  grant  of
licences  to  other  agencies,  including  the  private  agencies.  What  is
further, the electronic media is the most powerful  media  both  because  of
its audio-visual impact and its widest reach covering  the  section  of  the
society where the print media does not reach. The right to use the  airwaves
and  the  content  of  the  programmes,  therefore,  needs  regulation   for
balancing it and as well as to prevent monopoly  of  information  and  views
relayed, which is a potential danger flowing from the concentration  of  the
right to broadcast/telecast in the hands either of a central  agency  or  of
few private affluent broadcasters. That is why the need to  have  a  central
agency representative of all sections of the society free from control  both
of the Government and the dominant  influential  sections  of  the  society.
This is not disputed. But to contend that on that account  the  restrictions
to be imposed on the right under Article 19(1)(a) should be in  addition  to
those permissible under Article 19(2) and dictated  by  the  use  of  public
resources in the best interests of the society at large, is  to  misconceive
both the content of the freedom of speech and expression  and  the  problems
posed by the element of public property in, and  the  alleged  scarcity  of,
the frequencies as well as by the wider reach of the media. If the right  to
freedom  of  speech  and  expression  includes  the  right  to   disseminate
information to as wide a section of  the  population  as  is  possible,  the
access which enables the right to be so exercised is also an  integral  part
of the said right. The wider range of  circulation  of  information  or  its
greater impact cannot restrict the content of the right nor can  it  justify
its denial. The virtues of the electronic media cannot become  its  enemies.
It  may  warrant  a  greater  regulation  over  licensing  and  control  and
vigilance on the content of the programme telecast.  However,  this  control
can only be  exercised  within  the  framework  of  Article  19(2)  and  the
dictates of public interests. To plead for other grounds  is  to  plead  for
unconstitutional measures.  It  is  further  difficult  to  appreciate  such
contention on the part of the Government in this country when  they  have  a
complete control over the frequencies and the content of  the  programme  to
be telecast. They control the sole agency  of  telecasting.  They  are  also
armed with the provisions of Article 19(2) and the powers of  pre-censorship
under the Cinematograph Act and Rules.  The  only  limitation  on  the  said
right is, therefore, the limitation of resources and the need  to  use  them
for the benefit of all.  When,  however,  there  are  surplus  or  unlimited
resources and the public interests so demand or in any case do  not  prevent
telecasting, the validity of the argument based on limitation  of  resources
disappears. It is  true  that  to  own  a  frequency  for  the  purposes  of
broadcasting is  a  costly  affair  and  even  when  there  are  surplus  or
unlimited frequencies, only the affluent few will own them and will be in  a
position to use it to subserve their own interest by manipulating  news  and
views. That also poses a danger to the freedom of speech and  expression  of
the have-nots by denying them the truthful information on all  sides  of  an
issue which is so necessary to form a sound view on  any  subject.  That  is
why the doctrine of fairness has been evolved in the US in  the  context  of
the private broadcasters licensed to share the limited frequencies with  the
central  agency  like  the  FCC  to  regulate  the  programming.  But   this
phenomenon occurs even in the case of the print media of all the  countries.
Hence the body like the  Press  Council  of  India  which  is  empowered  to
enforce, however imperfectly, the right to reply. The  print  media  further
enjoys as in our country, freedom from pre-censorship unlike the  electronic
media."


Public Order

30.    In  Article  19(2)  (as  it  originally  stood)  this  sub-head   was
conspicuously absent.  Because of its absence, challenges made to  an  order
made under Section 7 of the Punjab Maintenance of Public Order  Act  and  to
an order made under Section 9 (1)(a) of the  Madras  Maintenance  of  Public
Order Act were allowed in two  early  judgments  by  this  Court.   Thus  in
Romesh Thappar v. State of Madras, [1950] S.C.R. 594, this Court  held  that
an order made under Section 9(1)(a) of  the  Madras  Maintenance  of  Public
Order Act (XXIII of 1949) was unconstitutional and void  in  that  it  could
not be justified as a measure connected with security of  the  State.  While
dealing with the expression "public order", this  Court  held  that  "public
order" is an  expression  which  signifies  a  state  of  tranquility  which
prevails amongst the members of a political  society  as  a  result  of  the
internal  regulations  enforced  by   the   Government   which   they   have
established.



31.   Similarly, in Brij Bhushan & Anr. v. State  of  Delhi,  [1950]  S.C.R.
605, an order made under Section 7 of the East  Punjab  Public  Safety  Act,
1949, was held to be unconstitutional and void for the self-same reason.



32.   As an aftermath of these judgments, the Constitution  First  Amendment
added the words "public order" to Article 19(2).



33.   In Superintendent, Central Prison, Fatehgarh  v.  Ram  Manohar  Lohia,
[1960] 2 S.C.R. 821, this Court held that public order  is  synonymous  with
public safety and tranquility; it  is  the  absence  of  disorder  involving
breaches of local significance in contradistinction to national   upheavals,
such as revolution, civil strife, war, affecting the security of the  State.
This definition was further refined in Dr. Ram Manohar  Lohia  v.  State  of
Bihar & Ors., [1966] 1 S.C.R. 709, where this Court held:

"It will thus appear that just as "public order"  in  the  rulings  of  this
Court (earlier cited) was said to comprehend disorders of less gravity  than
those affecting "security  of  State",  "law  and  order"  also  comprehends
disorders of less gravity than those affecting "public order".  One  has  to
imagine three concentric circles.  Law  and  order  represents  the  largest
circle within which is the next circle representing  public  order  and  the
smallest circle represents security of State. It is then easy  to  see  that
an act may affect law and order but not public order  just  as  an  act  may
affect public order but not security of the State." (at page 746)



34.   In Arun Ghosh v. State of  West  Bengal,  [1970]  3  S.C.R.  288,  Ram
Manohar Lohia's case was referred to with approval in the following terms:

"In Dr. Ram Manohar Lohia's case  this  Court  pointed  out  the  difference
between  maintenance  of  law  and  order  and  its  disturbance   and   the
maintenance of public order and its disturbance. Public order  was  said  to
embrace more of the community than law and order. Public order is  the  even
tempo of the life of the community taking the country as a whole or  even  a
specified locality. Disturbance of public  order  is  to  be  distinguished,
from acts directed against individuals which do not disturb the  society  to
the extent of causing a general disturbance of  public  tranquility.  It  is
the degree of disturbance and its effect upon the life of the  community  in
a locality which determines  whether  the  disturbance  amounts  only  to  a
breach of law and order. Take for instance, a man stabs another. People  may
be shocked and even disturbed, but the life of the  community  keeps  moving
at an even tempo, however much one may dislike the act.  Take  another  case
of a town where there is communal tension. A  man  stabs  a  member  of  the
other community. This is an act of a very different sort.  Its  implications
are deeper and it affects the  even  tempo  of  life  and  public  order  is
jeopardized because the repercussions of the act embrace large  Sections  of
the community and incite them to make further breaches of the law and  order
and to subvert the public order. An act by itself is not determinant of  its
own gravity. In its quality it may  not  differ  from  another  but  in  its
potentiality it may be very different. Take the case of assault on girls.  A
guest at a hotel may kiss or make advances to half a  dozen  chamber  maids.
He may annoy them and also the management but he does not cause  disturbance
of public order. He may even have a fracas with the friends of  one  of  the
girls but even then it would be a case of breach  of  law  and  order  only.
Take another case of a man who molests women in lonely places. As  a  result
of his activities girls going  to  colleges  and  schools  are  in  constant
danger and fear. Women going for  their  ordinary  business  are  afraid  of
being waylaid and assaulted. The activity  of  this  man  in  its  essential
quality is not  different  from  the  act  of  the  other  man  but  in  its
potentiality and in its effect upon the public tranquility there is  a  vast
difference. The act of the man  who  molests  the  girls  in  lonely  places
causes a disturbance in  the  even  tempo  of  living  which  is  the  first
requirement of public order. He disturbs the society and the community.  His
act makes all the women apprehensive of their honour and he can be  said  to
be causing disturbance of public order and not merely committing  individual
actions which may be taken note of by the criminal prosecution agencies.  It
means therefore that the question whether a man has only committed a  breach
of law and order or has acted in a manner likely to cause a  disturbance  of
the public order is a question of degree and the extent of the reach of  the
act upon the society. The French distinguish law and order and public  order
by designating the latter as order publique. The latter expression has  been
recognised as meaning something more than ordinary maintenance  of  law  and
order. Justice Ramaswami in Writ Petition No. 179 of 1968  drew  a  line  of
demarcation between the serious and aggravated forms of breaches  of  public
order which affect the community or endanger the public  interest  at  large
from minor breaches of peace which do not affect the  public  at  large.  He
drew an analogy between public and private crimes.  The  analogy  is  useful
but not to be pushed too far.  A  large  number  of  acts  directed  against
persons or individuals may total up into a breach of public  order.  In  Dr.
Ram Manohar Lohia's case examples were given by  Sarkar,  and  Hidayatullah,
JJ. They show how similar acts in different contexts affect differently  law
and order on the one hand and public order on the  other.  It  is  always  a
question of degree of the harm  and  its  effect  upon  the  community.  The
question to ask is: Does it lead to disturbance of the current  of  life  of
the community so as to amount to a disturbance of the public order  or  does
it affect merely an  individual  leaving  the  tranquility  of  the  society
undisturbed? This question has to be faced in every case on facts. There  is
no formula by which one case can be distinguished from another."  (at  pages
290 and 291).



35.   This decision lays down the test that has  to  be  formulated  in  all
these cases.  We have to ask ourselves the question: does a  particular  act
lead to disturbance of the current life of the community or does  it  merely
affect an individual leaving the tranquility of society undisturbed?   Going
by this test, it is clear that Section 66A is intended to punish any  person
who uses the internet to disseminate any information that falls  within  the
sub-clauses of Section  66A.   It  will  be  immediately  noticed  that  the
recipient of the written word that is sent by the person who is  accused  of
the offence is not of any importance so far as this  Section  is  concerned.
(Save and except where under sub-clause (c) the addressee  or  recipient  is
deceived or misled about the origin of a particular message.) It  is  clear,
therefore,  that  the  information  that  is  disseminated  may  be  to  one
individual  or  several  individuals.   The  Section  makes  no  distinction
between mass dissemination and dissemination to one  person.   Further,  the
Section does not require that such message should have a clear  tendency  to
disrupt public order. Such message need not have any potential  which  could
disturb the community at large.  The nexus between the  message  and  action
that may be taken based on the message is conspicuously absent  -  there  is
no ingredient in this offence of inciting anybody to  do  anything  which  a
reasonable man would then say would have the tendency of being an  immediate
threat to public safety or tranquility.  On all these counts,  it  is  clear
that the Section has no proximate relationship to public  order  whatsoever.
The example of a guest at a hotel `annoying' girls is telling -  this  Court
has held that mere `annoyance' need not cause disturbance of  public  order.
Under Section 66A, the offence is complete by  sending  a  message  for  the
purpose of causing annoyance, either `persistently' or otherwise without  in
any manner impacting public order.

Clear and present danger - tendency to affect.

36.   It will be  remembered  that  Justice  Holmes  in  Schenck  v.  United
States, 63 L. Ed. 470 enunciated  the  clear  and  present  danger  test  as
follows:

"...The most stringent protection of free speech would not protect a man  in
falsely shouting fire in a theatre and causing a panic.  It  does  not  even
protect a man from an injunction against uttering words that  may  have  all
the effect of force. Gompers v. Buck's Stove & Range Co.,  221  U.  S.  418,
439, 31 Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874.  The  question
in every case is whether the words used are used in such  circumstances  and
are of such a nature as to create a clear and present danger that they  will
bring about the substantive evils that Congress has a right to  prevent.  It
is a question of proximity and degree." (At page 473, 474)

37.   This was further refined in Abrams  v.  Unites  States  250  U.S.  616
(1919), this time in a Holmesian dissent, to be clear and  imminent  danger.
However, in most of the subsequent judgments of the U.S. Supreme Court,  the
test has been understood to mean to be "clear and present danger". The  test
of "clear and present danger" has been used by the  U.S.  Supreme  Court  in
many varying situations and has been  adjusted  according  to  varying  fact
situations.  It appears to have been repeatedly applied,  see-   Terminiello
v. City of Chicago 93 L. Ed. 1131 (1949) at page 1134-1135,  Brandenburg  v.
Ohio 23 L. Ed. 2d 430 (1969) at 434-435 & 436, Virginia v. Black 155 L.  Ed.
2d 535 (2003) at page 551, 552 and 553[4].



38.   We have echoes of it in our law as well S. Rangarajan v.  P.  Jagjivan
& Ors., (1989) 2 SCC 574 at paragraph 45:

"45. The problem of defining the area  of  freedom  of  expression  when  it
appears to conflict with  the  various  social  interests  enumerated  under
Article 19(2) may briefly be touched upon here. There does  indeed  have  to
be a compromise between the interest of freedom of  expression  and  special
interests. But we cannot simply balance the two interests as if they are  of
equal weight. Our commitment  of  freedom  of  expression  demands  that  it
cannot be suppressed unless the situations created by allowing  the  freedom
are pressing and the  community  interest  is  endangered.  The  anticipated
danger should not be remote, conjectural  or  far-fetched.  It  should  have
proximate and direct nexus with the expression. The  expression  of  thought
should be intrinsically dangerous to the public interest.  In  other  words,
the expression should be inseparably locked up with the action  contemplated
like the equivalent of a "spark in a powder keg".



39.   This Court has used the expression "tendency"  to  a  particular  act.
Thus, in State of Bihar v. Shailabala Devi,  [1952]  S.C.R.  654,  an  early
decision of this Court said that an article, in  order  to  be  banned  must
have a tendency to excite persons to acts of  violence  (at  page  662-663).
The test laid down in the said decision  was  that  the  article  should  be
considered as a whole in a fair free liberal spirit  and  then  it  must  be
decided what effect it would have on the mind of a  reasonable  reader.  (at
pages 664-665)



40.   In Ramji Lal Modi v. The State of U.P.,  [1957]  S.C.R.  860  at  page
867, this court upheld Section 295A of the Indian Penal  Code  only  because
it was read down to mean that aggravated forms of insults to  religion  must
have a tendency to disrupt public order.  Similarly, in Kedar Nath Singh  v.
State of Bihar, 1962 Supp. (2) S.C.R. 769, Section 124A of the Indian  Penal
Code was upheld by construing it  narrowly  and  stating  that  the  offence
would only be complete if  the  words  complained  of  have  a  tendency  of
creating public disorder by violence.  It was  added  that  merely  creating
disaffection or creating feelings of enmity in certain people was  not  good
enough or else it would violate the fundamental right of free  speech  under
Article 19(1)(a).  Again,  in  Dr.  Ramesh  Yeshwant  Prabhoo  v.  Prabhakar
Kashinath Kunte &  Ors.,  1996  (1)  SCC   130,  Section  123  (3A)  of  the
Representation of People Act was upheld only if the enmity  or  hatred  that
was spoken about in the  Section  would  tend  to  create  immediate  public
disorder and not otherwise.



41.   Viewed at either by the standpoint of the  clear  and  present  danger
test or the tendency to create public disorder, Section 66A would  not  pass
muster as it has no element of any tendency to create public disorder  which
ought to be an essential ingredient of the offence which it creates.



Defamation

42.   Defamation is defined in Section 499 of the Penal Code as follows:


"499. Defamation.-Whoever, by words either spoken or intended  to  be  read,
or  by  signs  or  by  visible  representations,  makes  or  publishes   any
imputation concerning any person intending to harm,  or  knowing  or  having
reason to believe that such imputation will harm,  the  reputation  of  such
person, is said, except in the cases hereinafter excepted,  to  defame  that
person.


Explanation 1.-It may amount to defamation to impute anything to a  deceased
person, if the imputation would  harm  the  reputation  of  that  person  if
living, and is intended to be hurtful to  the  feelings  of  his  family  or
other near relatives.


Explanation 2.-It may amount to defamation to make an imputation  concerning
a company or an association or collection of persons as such.


Explanation 3.-An imputation in the form  of  an  alternative  or  expressed
ironically, may amount to defamation.


Explanation 4.-No imputation is said to harm a person's  reputation,  unless
that imputation directly or indirectly, in the estimation of others,  lowers
the moral or intellectual character of that person, or lowers the  character
of that person in respect of his caste or of  his  calling,  or  lowers  the
credit of that person, or causes it to be believed that  the  body  of  that
person is in a loathsome state,  or  in  a  state  generally  considered  as
disgraceful."



43.   It will be noticed that for something  to  be  defamatory,  injury  to
reputation is a basic ingredient.  Section 66A does not concern itself  with
injury to reputation. Something may be grossly offensive and  may  annoy  or
be inconvenient to somebody without at all affecting his reputation.  It  is
clear therefore that the Section is not aimed at  defamatory  statements  at
all.



Incitement to an offence:

44.   Equally, Section 66A has no proximate connection  with  incitement  to
commit  an  offence.    Firstly,  the  information  disseminated  over   the
internet need not be information which "incites" anybody  at  all.   Written
words may be sent that may  be  purely  in  the  realm  of  "discussion"  or
"advocacy" of a "particular point of view".  Further, the  mere  causing  of
annoyance, inconvenience, danger etc., or being grossly offensive or  having
a menacing character are not offences under the Penal  Code  at  all.   They
may be ingredients of certain offences under the  Penal  Code  but  are  not
offences in themselves.  For these reasons, Section 66A has  nothing  to  do
with  "incitement  to  an  offence".  As  Section  66A   severely   curtails
information that may be sent on the internet based on whether it is  grossly
offensive, annoying, inconvenient, etc. and being unrelated to  any  of  the
eight subject matters under Article 19(2)  must,  therefore,  fall  foul  of
Article 19(1)(a), and not being saved under Article 19(2),  is  declared  as
unconstitutional.



Decency or Morality

45.   This Court in Ranjit Udeshi v. State of Maharashtra  [1965]  1  S.C.R.
65 took a rather restrictive view of what would pass  muster  as  not  being
obscene. The Court followed the test laid down in the old  English  judgment
in Hicklin's case which was whether the tendency of the  matter  charged  as
obscene is to deprave and  corrupt  those  whose  minds  are  open  to  such
immoral influences and into whose hands  a  publication  of  this  sort  may
fall. Great strides have been made since this decision  in  the  UK,  United
States as well as in our country.  Thus, in  Director  General,  Directorate
General of Doordarshan  v. Anand Patwardhan, 2006 (8) SCC  433,  this  Court
noticed the law in the United  States  and  said  that  a  material  may  be
regarded as obscene if the average person  applying  contemporary  community
standards would find that the subject matter taken as  a  whole  appeals  to
the prurient interest and that taken as a whole it otherwise  lacks  serious
literary artistic, political, educational  or  scientific  value  (see  Para
31).



46.   In a recent judgment of this Court, Aveek  Sarkar  v.  State  of  West
Bengal, 2014 (4) SCC 257, this Court referred to English, U.S. and  Canadian
judgments and moved away from the Hicklin test and applied the  contemporary
community standards test.



47.   What has been said with regard to public order and  incitement  to  an
offence equally applies here.   Section  66A  cannot  possibly  be  said  to
create an offence which falls within the expression 'decency' or  'morality'
in that what may be grossly offensive or annoying  under  the  Section  need
not be obscene at all - in fact the word 'obscene'  is  conspicuous  by  its
absence in Section 66A.



48.   However, the learned Additional Solicitor General  asked  us  to  read
into Section 66A each of the subject matters contained in Article  19(2)  in
order to save the constitutionality of the provision.  We  are  afraid  that
such an exercise is not  possible  for  the  simple  reason  that  when  the
legislature intended to do so, it provided for some of the  subject  matters
contained in Article 19(2) in Section  69A.   We  would  be  doing  complete
violence to the language  of  Section  66A  if  we  were  to  read  into  it
something that was never intended to be read into it.   Further,  he  argued
that the statute should be made workable, and the following should  be  read
into Section 66A:

"(i)  Information which would appear highly abusive, insulting,  pejorative,
offensive by reasonable person in general, judged by  the  standards  of  an
open and just multi-caste, multi-religious, multi racial society;

Director of Public Prosecutions v. Collins - (2006) 1 WLR 2223 @ para 9  and
21

Connolly v. Director of Public Prosecutions  reported  in  [2008]  1  W.L.R.
276/2007 [1] All ER 1012

House  of  Lords  Select  Committee  1st  Report  of  Session  2014-2015  on
Communications titled as "Social Media And Criminal Offences" @  pg  260  of
compilation of judgments Vol I Part B



(ii)  Information which is  directed  to  incite  or  can  produce  imminent
lawless action Brandenburg v. Ohio 395 U.S. 444 (1969);



(iii) Information which may constitute credible threats of violence  to  the
person or damage;



(iv) Information which stirs the public to anger, invites  violent  disputes
brings about condition of violent unrest and disturbances;

Terminiello v. Chicago 337 US 1 (1949)



(v)  Information  which  advocates  or  teaches  the  duty,   necessity   or
proprietary of violence as a means of  accomplishing  political,  social  or
religious reform and/or justifies commissioning  of  violent  acts  with  an
intent to exemplify glorify such  violent  means  to  accomplish  political,
social, economical or religious reforms

[Whitney vs. California 274 US 357];



(vi) Information which contains fighting or abusive material;

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)



(vii) Information which promotes hate speech i.e.



Information which propagates hatred towards individual or a groups,  on  the
basis of race, religion, religion, casteism, ethnicity,



Information which is intended  to  show  the  supremacy  of  one  particular
religion/race/caste   by   making   disparaging,   abusive   and/or   highly
inflammatory remarks against religion/race/caste.



Information depicting religious deities, holy persons,  holy  symbols,  holy
books which are created to insult or to show contempt or lack  of  reverence
for such religious deities,  holy  persons,  holy  symbols,  holy  books  or
towards something which is considered sacred or inviolable.



(viii) Satirical or iconoclastic cartoon  and  caricature  which  fails  the
test laid down in Hustler Magazine, Inc. v. Falwell 485 U.S. 46 (1988)



(ix) Information which glorifies terrorism and use of drugs;



(x) Information which infringes right of privacy of the others and  includes
acts of cyber bullying, harassment or stalking.



(xi) Information which is obscene and has the tendency to arouse feeling  or
revealing an overt sexual desire and should be suggestive  of  deprave  mind
and designed to excite sexual passion in persons who are likely to see it.

Aveek Sarkar and Anr. vs. State of West Bengal and Ors. (2014) 4 SCC 257.



(xii) Context and  background  test  of  obscenity.   Information  which  is
posted in such a context or background which has a consequential  effect  of
outraging the modesty of the pictured individual.

Aveek Sarkar and Anr. vs. State of West Bengal and Ors. (2014) 4 SCC 257."



49.   What the learned Additional Solicitor General is asking us  to  do  is
not to read down Section 66A - he is asking for a wholesale substitution  of
the provision which is obviously not possible.



Vagueness

50.   Counsel for the petitioners argued that the language used  in  Section
66A is so vague that neither would an accused person be put on notice as  to
what exactly  is  the  offence  which  has  been  committed  nor  would  the
authorities administering the Section be clear as to  on  which  side  of  a
clearly drawn line a particular communication will fall.



51.   We were given Collin's dictionary, which defined  most  of  the  terms
used in Section 66A, as follows:

"Offensive:-

Unpleasant or disgusting, as to the senses

Causing anger or annoyance; insulting

For the purpose of attack rather than defence.

Menace:-

To threaten with violence, danger, etc.

A threat of the act of threatening

Something menacing; a source of danger

A nuisance

Annoy:-

To irritate or displease

To harass with repeated attacks

Annoyance

The feeling of being annoyed

The act of annoying.

Inconvenience

The state of quality of being inconvenient

Something inconvenient; a hindrance, trouble, or difficulty

Danger:-

The state of being vulnerable to injury, loss, or evil risk

A person or a thing that may cause injury pain etc.

Obstruct:-

To block (a road a passageway, etc.) with an obstacle

To make (progress or activity) difficult.

To impede or block a clear view of.

Obstruction:- a person or a thing that obstructs.

Insult:-

To treat, mention, or speak to rudely; offend; affront

To assault; attack

An offensive or contemptuous remark or action; affront; slight

A person or thing producing the effect of an affront =  some  television  is
an insult to intelligence

An injury or trauma."



52.   The U.S. Supreme Court has repeatedly held in a  series  of  judgments
that where no reasonable standards are  laid  down  to  define  guilt  in  a
Section which creates an offence, and where no clear guidance  is  given  to
either law abiding citizens or to authorities and courts,  a  Section  which
creates an offence  and  which  is  vague  must  be  struck  down  as  being
arbitrary and unreasonable.  Thus, in Musser v. Utah, 92 L. Ed. 562, a  Utah
statute which outlawed conspiracy to commit acts injurious to public  morals
was struck down.



53.   In Winters v. People of State of New York, 92 L. Ed. 840, a  New  York
Penal Law read as follows:-


"1141. Obscene prints and articles


1. A person......who,


2. Prints, utters, publishes,  sells,  lends,  gives  away,  distributes  or
shows, or has in his possession  with  intent  to  sell,  lend,  give  away,
distribute  or  show,  or  otherwise  offers  for  sale,   loan,   gift   or
distribution, any book,  pamphlet,  magazine,  newspaper  or  other  printed
paper devoted to the publication, and principally made up of criminal  news,
police reports, or accounts of criminal deeds, or pictures,  or  stories  of
deeds             of             bloodshed,             lust              or
crime;.....................................................


'Is guilty of a misdemeanor, .....'" (at page 846)




The court in striking down the said statute held:


"The  impossibility  of  defining  the  precise  line  between   permissible
uncertainty  in  statutes  caused  by  describing  crimes  by   words   well
understood  through  long  use  in  the  criminal  law  -   obscene,   lewd,
lascivious,  filthy,  indecent  or   disgusting-and   the   unconstitutional
vagueness that leaves a person  uncertain  as  to  the  kind  of  prohibited
conduct-massing stories to incite crime-has resulted in three  arguments  of
this case in this Court. The legislative bodies in  draftsmanship  obviously
have the same difficulty as do the judicial in interpretation.  Nevertheless
despite the difficulties, courts must do their best to determine whether  or
not the vagueness is of such a character 'that men  of  common  intelligence
must necessarily guess at its meaning.' Connally  v.  General  Constr.  Co.,
269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322. The entire text  of  the
statute or the subjects dealt with may furnish  an  adequate  standard.  The
present case as to a  vague  statute  abridging  free  speech  involves  the
circulation of only vulgar magazines. The next may call for decision  as  to
free expression of political views in the light of  a  statute  intended  to
punish subversive activities.


The subsection of the New York Penal Law, as now interpreted  by  the  Court
of Appeals prohibits distribution of  a  magazine  principally  made  up  of
criminal news or stories of deeds of bloodshed, or lust,  so  massed  as  to
become vehicles  for  inciting  violent  and  depraved  crimes  against  the
person. But even considering the gloss put upon the literal meaning  by  the
Court of Appeals' restriction of the statute to collections of  stories  'so
massed as to become  vehicles  for  inciting  violent  and  depraved  crimes
against the person * * * not necessarily * * * sexual passion,' we find  the
specification of publications, prohibited from distribution,  too  uncertain
and indefinite to justify the conviction of  this  petitioner.  Even  though
all detective tales and treatises on  criminology  are  not  forbidden,  and
though  publications  made  up  of  criminal  deeds  not  characterized   by
bloodshed or lust are omitted  from  the  interpretation  of  the  Court  of
Appeals, we think fair use of collections of pictures and stories  would  be
interdicted because of the utter impossibility of the actor or the trier  to
know where this new standard of  guilt  would  draw  the  line  between  the
allowable and the forbidden publications. No intent or purpose is  required-
no indecency or obscenity in any sense heretofore  known  to  the  law.  'So
massed as to incite  to  crime'  can  become  meaningful  only  by  concrete
instances. This one example is not enough. The  clause  proposes  to  punish
the printing and circulation of  publications  that  courts  or  juries  may
think influence generally persons to commit crime of  violence  against  the
person. No conspiracy to commit a crime is required. See Musser v. State  of
Utah, 68 S.Ct. 397, this Term. It is not an effective notice of  new  crime.
The clause has no technical or common law meaning. Nor can light as  to  the
meaning be gained from the section as a whole or the Article  of  the  Penal
Law under which it appears. As said in the Cohen Grocery  Co.  case,  supra,
255 U.S. at page 89, 41 S.Ct. at page 300, 65 L.Ed. 516, 14 A.L.R. 1045:


'It leaves open, therefore, the widest conceivable  inquiry,  the  scope  of
which no one can foresee and the result of which no one  can  foreshadow  or
adequately guard against.'


The statute as construed by the Court of Appeals does not  limit  punishment
to the indecent and obscene, as formerly understood. When stories  of  deeds
of bloodshed, such as many in the accused magazines, are  massed  so  as  to
incite to violent crimes, the statute is violated. it does not  seem  to  us
that an honest distributor of publications could know when he might be  held
to have ignored such a prohibition. Collections of  tales  of  war  horrors,
otherwise unexceptionable, might well be found  to  be  'massed'  so  as  to
become 'vehicles for inciting violent and depraved crimes.' Where a  statute
is so vague as to make criminal an  innocent  act,  a  conviction  under  it
cannot be sustained. Herndon v. Lowry, 301 U.S.  242,  259,  57  S.Ct.  732,
739, 81 L.Ed. 1066." (at page 851-852)



54.   In Burstyn v. Wilson,  96  L.  Ed.  1098,  sacrilegious  writings  and
utterances were outlawed. Here again, the U.S. Supreme Court stepped  in  to
strike down the offending Section stating:

"It is not a sufficient answer  to  say  that  'sacrilegious'  is  definite,
because all subjects that in any way might be interpreted as  offending  the
religious beliefs of any one of the 300  sects  of  the  United  States  are
banned in New York. To allow such vague, undefinable  powers  of  censorship
to be exercised is bound to have stultifying consequences  on  the  creative
process of literature  and  art-for  the  films  are  derived  largely  from
literature.  History  does  not  encourage  reliance  on  the   wisdom   and
moderation of the censor as a safeguard in  the  exercise  of  such  drastic
power over the minds of men. We not only do not know but  cannot  know  what
is condemnable by 'sacrilegious.' And if we cannot tell, how  are  those  to
be governed by the statute to tell? (at page 1121)



55.   In City of Chicago v. Morales et al, 527 U.S.  41  (1999),  a  Chicago
Gang Congregation Ordinance prohibited criminal  street  gang  members  from
loitering with one another or with other persons in any public place for  no
apparent purpose.  The Court referred  to  an  earlier  judgment  in  United
States v. Reese 92 U.S. 214 (1875) at 221 in which it was  stated  that  the
Constitution does not permit a legislature to set  a  net  large  enough  to
catch all possible offenders and leave it to the Court to step  in  and  say
who could be rightfully detained and who should be set at  liberty.  It  was
held that the broad sweep of the Ordinance violated the requirement  that  a
legislature needs to meet: to establish minimum  guidelines  to  govern  law
enforcement. As the impugned Ordinance did not have any such  guidelines,  a
substantial amount of innocent conduct would  also  be  brought  within  its
net, leading to its unconstitutionality.



56.   It was further held that a penal law  is  void  for  vagueness  if  it
fails to define the criminal offence with sufficient definiteness.  Ordinary
people should be able to understand what conduct is prohibited and  what  is
permitted. Also, those who administer the law must  know  what  offence  has
been committed so that arbitrary and discriminatory enforcement of  the  law
does not take place.



57.   Similarly, in Grayned v. City of  Rockford,  33  L.Ed.  2d.  222,  the
State of Illinois provided in an anti noise ordinance as follows:

"'(N)o person, while on public or private grounds adjacent to  any  building
in which a school or any class thereof is in session, shall  willfully  make
or assist in the making of any noise or diversion which  disturbs  or  tends
to disturb the peace or good order of such school session or class  thereof.
. . .' Code of Ordinances, c. 28,  19.2(a)."



The law on the subject of vagueness was clearly stated thus:

"It is a basic principle of due  process  that  an  enactment  is  void  for
vagueness if its prohibitions are not clearly  defined.  Vague  laws  offend
several important values. First, because we  assume  that  man  is  free  to
steer between lawful and unlawful conduct, we  insist  that  laws  give  the
person of ordinary intelligence a reasonable opportunity  to  know  what  is
prohibited, so that  he  may  act  accordingly.  Vague  laws  may  trap  the
innocent  by  not  providing  fair  warning.  Second,   if   arbitrary   and
discriminatory enforcement is to be prevented, laws  must  provide  explicit
standards for those who apply them.  A  vague  law  impermissibly  delegates
basic policy matters to policemen, judges, and juries for resolution  on  an
ad hoc and subjective basis, with the attendant  dangers  of  arbitrary  and
discriminatory  application. Third,  but  related,  where  a  vague  statute
'abut(s)  upon  sensitive  areas  of basic  First  Amendment  freedoms,   it
'operates to inhibit the exercise of (those) freedoms.'  Uncertain  meanings
inevitably lead citizens to "steer far wider of the unlawful  zone'  .  .  .
than if the boundaries of the  forbidden  areas  were  clearly  marked.'"(at
page 227-228)



58.   The anti noise ordinance was upheld on facts in that case  because  it
fixed the time at which noise disrupts school activity -  while  the  school
is in session - and at a fixed place - 'adjacent' to the school.



59.    Secondly,  there  had  to  be  demonstrated   a   causality   between
disturbance that occurs and the noise or diversion.  Thirdly, acts  have  to
be willfully done.  It  is  important  to  notice  that  the  Supreme  Court
specifically held that "undesirables" or their "annoying  conduct"  may  not
be punished. It is only on these limited grounds  that  the  said  Ordinance
was considered not to be impermissibly vague.




60.   In Reno, Attorney General of the United States,  et  al.  v.  American
Civil Liberties Union et al., 521 U.S. 844 (1997),  two  provisions  of  the
Communications Decency Act of 1996  which  sought  to  protect  minors  from
harmful material on  the  internet  were  adjudged  unconstitutional.   This
judgment is a little important for two basic reasons - that it deals with  a
penal offence created for persons who use  the  internet  as  also  for  the
reason that  the  statute  which  was  adjudged  unconstitutional  uses  the
expression  "patently  offensive"  which  comes  extremely  close   to   the
expression "grossly offensive" used by the impugned  Section  66A.   Section
223(d), which was adjudged unconstitutional, is set out hereinbelow:-


"223 (d) Whoever-


"(1) in interstate or foreign communications knowingly-


(A) uses an interactive computer service to send to  a  specific  person  or
persons under 18 years of age, or


(B) uses any interactive computer service to display in a  manner  available
to a person under 18  years  of  age,  "any  comment,  request,  suggestion,
proposal, image,  or  other  communication  that,  in  context,  depicts  or
describes,  in  terms  patently  offensive  as  measured   by   contemporary
community standards, sexual or excretory activities  or  organs,  regardless
of whether the user of  such  service  placed  the  call  or  initiated  the
communication; or


(2) knowingly permits any telecommunications facility  under  such  person's
control to be used for an activity prohibited  by  paragraph  (1)  with  the
intent that it be used for such activity,


shall be fined under Title 18, or imprisoned not more  than  two  years,  or
both." (at page 860)



Interestingly, the District Court Judge writing of the internet said:

"[i]t is no exaggeration to conclude that the  Internet  has  achieved,  and
continues to achieve, the most  participatory  marketplace  of  mass  speech
that this country - and indeed the world - as yet seen.  The  plaintiffs  in
these actions correctly describe the  'democratizing'  effects  of  Internet
communication:  individual  citizens  of  limited  means  can  speak  to   a
worldwide audience on issues of concern  to  them.   Federalists  and  Anti-
federalists may debate the structure of their government nightly, but  these
debates occur in newsgroups or chat rooms rather than in pamphlets.  Modern-
day Luthers still post their theses,  but  to  electronic  bulletins  boards
rather than the door of the Wittenberg  Schlosskirche.   More  mundane  (but
from  a  constitutional  perspective,  equally  important)  dialogue  occurs
between  aspiring  artists,  or  French  cooks,  or  dog  lovers,   or   fly
fishermen." 929 F. Supp. At 881. (at page 425)



61.   The Supreme Court held that the impugned statute lacked the  precision
that the first amendment required when a statute regulates  the  content  of
speech.  In order to deny minors access to potentially harmful  speech,  the
impugned Act effectively suppresses a large amount  of  speech  that  adults
have a constitutional right to receive and to address to one another.



62.   Such a burden on adult speech  is  unacceptable  if  less  restrictive
alternatives would be as effective in achieving the legitimate purpose  that
the statute was enacted to serve.  It was held that  the  general  undefined
term  "patently  offensive"  covers  large  amounts   of    non-pornographic
material with serious educational or other value  and  was  both  vague  and
over broad.

      It was,  thus,  held  that  the  impugned  statute  was  not  narrowly
tailored and would fall foul of the first amendment.



63.   In Federal Communications Commission v. Fox Television  Stations,  132
S.Ct. 2307, it was held:


"A fundamental principle in our legal system is  that  laws  which  regulate
persons or entities must give fair notice of conduct that  is  forbidden  or
required.  See Connally   v. General  Constr.  Co., 269  U.  S.   385,   391
(1926) ("[A] statute which either forbids or requires the doing  of  an  act
in terms so vague that men of common intelligence must necessarily guess  at
its meaning and differ as to its application, violates the  first  essential
of due process of law"); Papachristou v. Jacksonville, 405 U.  S.  156,  162
(1972) ("Living under a rule of law entails  various  suppositions,  one  of
which is that '[all persons] are entitled to be  informed  as  to  what  the
State commands or forbids'" (quoting Lanzetta v. New Jersey, 306 U. S.  451,
453 (1939) (alteration  in  original))).  This  requirement  of  clarity  in
regulation is essential to the  protections  provided  by  the  Due  Process
Clause of the Fifth Amendment.  See United  States  v. Williams, 553  U.  S.
285,  304  (2008).  It  requires  the  invalidation   of   laws   that   are
impermissibly vague. A conviction or punishment fails  to  comply  with  due
process if the statute or regulation under which it is  obtained  "fails  to
provide  a  person  of  ordinary  intelligence  fair  notice  of   what   is
prohibited,  or  is  so  standardless  that  it  authorizes  or   encourages
seriously discriminatory enforcement." Ibid. As this Court has explained,  a
regulation is not vague because it may at times be  difficult  to  prove  an
incriminating fact but rather because it is unclear as to what fact must  be
proved. See id., at 306.


Even when speech is not at issue, the void for vagueness doctrine  addresses
at least two connected  but  discrete  due  process  concerns:  first,  that
regulated parties should know what is required  of  them  so  they  may  act
accordingly; second, precision and guidance  are  necessary  so  that  those
enforcing the law  do  not  act  in  an  arbitrary  or  discriminatory  way.
See Grayned v. City of Rockford, 408 U. S. 104, 108-109 (1972). When  speech
is involved, rigorous  adherence  to  those  requirements  is  necessary  to
ensure that ambiguity does not chill protected speech."(at page 2317)



64.   Coming to this Court's  judgments,  in  State  of  Madhya  Pradesh  v.
Baldeo Prasad, [1961] 1 S.C.R. 970  an  inclusive  definition  of  the  word
"goonda" was held to be vague and the offence created by Section 4A  of  the
Goondas Act was, therefore, violative of Article 19(1)(d)  and  (e)  of  the
Constitution.  It was stated:

"Incidentally it would also be relevant to point out that the definition  of
the word "goonda" affords no assistance in deciding  which  citizen  can  be
put under that category. It is an  inclusive  definition  and  it  does  not
indicate which tests have to be applied in deciding whether a  person  falls
in the first part of the definition. Recourse to the dictionary  meaning  of
the word would hardly be of any assistance in  this  matter.  After  all  it
must be borne in mind that the Act authorises  the  District  Magistrate  to
deprive a citizen of his fundamental right under Art. 19(1)(d) and (e),  and
though the object of the Act and its purpose would undoubtedly  attract  the
provisions of Art. 19(5) care must always be  taken  in  passing  such  acts
that they provide sufficient safeguards against casual, capricious  or  even
malicious exercise of the powers conferred by them. It is  well  known  that
the relevant provisions of the Act are initially put  in  motion  against  a
person at a lower level than the District magistrate, and so  it  is  always
necessary that sufficient safeguards  should  be  provided  by  the  Act  to
protect the fundamental rights of innocent citizens and to  save  them  from
unnecessary harassment. That is why we think  the  definition  of  the  word
"goonda" should have given necessary assistance to the  District  Magistrate
in deciding whether a particular citizen falls under the category of  goonda
or not; that is another infirmity in the Act. As  we  have  already  pointed
out s. 4-A suffers from the same infirmities as s. 4.

Having regard to the two infirmities in Sections 4,    4-A  respectively  we
do not think it would be possible to accede to the argument of  the  Learned
Advocate-General that the operative portion of the Act can fall  under  Art.
19(5) of the Constitution. The person  against  whom  action  can  be  taken
under the Act is  not  entitled  to  know  the  source  of  the  information
received by the District Magistrate; he is only told about  his  prejudicial
activities on which the satisfaction of the  District  Magistrate  is  based
that action should be taken against him under s.4  or  s.  4-A.  In  such  a
case it is absolutely essential that the Act  must  clearly  indicate  by  a
proper definition or otherwise when and under what  circumstances  a  person
can be called a goonda, and it must impose an  obligation  on  the  District
Magistrate to apply his mind to  the  question  as  to  whether  the  person
against whom complaints are received is such a goonda or not.  It  has  been
urged before us that such an obligation is implicit in  Sections 4 and  4-A.
We are, however, not impressed by this argument. Where  a  statute  empowers
the specified authorities to take preventive action against the citizens  it
is essential that it should expressly make it a part  of  the  duty  of  the
said authorities to satisfy themselves  about  the  existence  of  what  the
statute regards  as  conditions  precedent  to  the  exercise  of  the  said
authority. If the statute is silent in respect of  one  of  such  conditions
precedent  it  undoubtedly  constitutes  a  serious  infirmity  which  would
inevitably take it out of the provisions of Art. 19(5). The result  of  this
infirmity is that it has left to the unguided and unfettered  discretion  of
the authority concerned to treat any citizen as a goonda.  In  other  words,
the restrictions which it allows to  be  imposed  on  the  exercise  of  the
fundamental right of a citizen guaranteed by Art. 19(1)(d) and (e)  must  in
the circumstances be held to be unreasonable. That is the view taken by  the
High court and we see no reason to differ from it." (at pages 979, 980)



65.   At one time  this  Court  seemed  to  suggest  that  the  doctrine  of
vagueness was no  part  of  the  Constitutional  Law  of  India.   That  was
dispelled in no uncertain terms in K.A.  Abbas  v.  The  Union  of  India  &
Another, [1971] 2 S.C.R. 446:

"This brings us to the manner of the exercise of control and restriction  by
the directions. Here the argument is that most of the regulations are  vague
and further that they leave no scope for the exercise of creative genius  in
the field of art. This poses the first question before us whether the  'void
for vagueness' doctrine  is  applicable.  Reliance  in  this  connection  is
placed on Municipal Committee Amritsar and Anr. v. The State of  Rajasthan .
In that case a Division Bench of this Court lays down  that  an  Indian  Act
cannot be declared invalid on the ground that it violates  the  due  process
clause or that it is vague......" (at page 469)

"These observations which are clearly obiter are apt  to  be  too  generally
applied and need to be explained. While  it  is  true  that  the  principles
evolved by the Supreme  Court  of  the  United  States  of  America  in  the
application of the Fourteenth Amendment were eschewed  in  our  Constitution
and instead the limits  of  restrictions  on  each  fundamental  right  were
indicated in the clauses that follow the  first  clause  of  the  nineteenth
article, it cannot be said as an absolute principle  that  no  law  will  be
considered bad for  sheer  vagueness.  There  is  ample  authority  for  the
proposition that a law affecting fundamental rights may be so considered.  A
very pertinent example is to be found in State of Madhya  Pradesh  and  Anr.
v. Baldeo Prasad, 1961 (1) SCR 970 where the  Central  Provinces  and  Berar
Goondas Act 1946 was declared void for uncertainty. The  condition  for  the
application of Sections 4 and 4A was that the person sought to be  proceeded
against must be a goonda but the definition of goonda in the  Act  indicated
no  tests  for  deciding  which  person  fell  within  the  definition.  The
provisions were therefore held to be uncertain and vague.

   The real rule is that if a law is vague or appears to be  so,  the  court
must try to construe it, as far as may  be,  and  language  permitting,  the
construction sought to be placed on it,  must  be  in  accordance  with  the
intention  of  the  legislature.  Thus  if  the  law  is  open  to   diverse
construction, that construction which accords best  with  the  intention  of
the  legislature  and  advances  the  purpose  of  legislation,  is  to   be
preferred. Where however the law admits of  no  such  construction  and  the
persons applying it are in a boundless sea of uncertainty and the law  prima
facie takes away a guaranteed freedom, the law must be held  to  offend  the
Constitution as was done in  the  case  of  the  Goonda  Act.  This  is  not
application of the doctrine of due process. The invalidity arises  from  the
probability of the misuse of the law to the detriment of the individual.  If
possible, the Court instead of striking down the law  may  itself  draw  the
line of demarcation where possible but this effort should be sparingly  made
and only in the clearest of cases." (at pages 470, 471)



66.   Similarly, in Harakchand Ratanchand Banthia & Ors. v. Union  of  India
& Ors., 1969 (2) SCC 166, Section 27 of the  Gold  Control  Act  was  struck
down on the ground that the conditions  imposed  by  it  for  the  grant  of
renewal of licences are  uncertain,  vague  and  unintelligible.  The  Court
held:

"21. We now come to Section 27 of the Act  which  relates  to  licensing  of
dealers. It was stated on behalf of  the  petitioners  that  the  conditions
imposed by sub-section (6) of  Section  27  for  the  grant  or  renewal  of
licences are uncertain, vague and unintelligible and consequently  wide  and
unfettered power was conferred upon the statutory authorities in the  matter
of grant or renewal of licence. In  our  opinion  this  contention  is  well
founded and must be accepted as correct. Section  27(6)(a)  states  that  in
the matter of issue or renewal of  licences  the  Administrator  shall  have
regard to "the number of  dealers  existing  in  the  region  in  which  the
applicant intends to carry on business as a dealer". But the  word  "region"
is nowhere defined in the  Act.  Similarly  Section  27(6)(b)  requires  the
Administrator to have regard to "the anticipated  demand,  as  estimated  by
him, for ornaments in that region." The expression "anticipated  demand"  is
a vague expression which is not  capable  of  objective  assessment  and  is
bound to lead to a great  deal  of  uncertainty.  Similarly  the  expression
"suitability of the applicant" in Section 27(6)(e) and "public interest"  in
Section 27(6)(g) do not provide any objective standard or norm or  guidance.
For these reasons it must be  held  that  clauses  (a),(d),(e)  and  (g)  of
Section 27(6) impose unreasonable restrictions on the fundamental  right  of
the petitioner to carry on business and  are  constitutionally  invalid.  It
was also contended that there was no reason why the conditions  for  renewal
of licence should be as rigorous as the  conditions  for  initial  grant  of
licence. The requirement of strict conditions for  the  renewal  of  licence
renders the entire future of  the  business  of  the  dealer  uncertain  and
subjects it  to  the  caprice  and  arbitrary  will  of  the  administrative
authorities. There is justification for this argument  and  the  requirement
of Section 26 of the Act imposing the same conditions  for  the  renewal  of
the licence as for the initial grant appears  to  be  unreasonable.  In  our
opinion clauses (a), (b), (e) and (g) are inextricably  bound  up  with  the
other clauses of Section 27(6) and form part of a single scheme. The  result
is that clauses (a), (b), (c), (e) and (g) are not severable and the  entire
Section 27(6) of the Act must be held invalid. Section 27(2)(d) of  the  Act
states that a valid licence issued by the Administrator  "may  contain  such
conditions, limitations and restrictions as the Administrator may think  fit
to impose and different conditions,  limitations  and  restrictions  may  be
imposed for different classes of dealers". On the  face  of  it,  this  sub-
section confers such wide and vague power upon the Administrator that it  is
difficult to limit its scope. In our opinion Section  27(2)(d)  of  the  Act
must be struck down as an unreasonable restriction on the fundamental  right
of the petitioners to carry on business. It appears, however, to us that  if
Section 27(2)(d) and Section 27(6) of the  Act  are  invalid  the  licensing
scheme contemplated by the rest of Section 27 of the Act  cannot  be  worked
in practice. It is, therefore,  necessary  for  Parliament  to  enact  fresh
legislation imposing appropriate conditions and restrictions for  the  grant
and  renewal  of  licences  to  dealers.  In  the  alternative  the  Central
Government may make appropriate rules for the same purpose  in  exercise  of
its rule-making power under Section 114 of the Act."



67.   In A.K. Roy & Ors. v. Union of India & Ors., [1982] 2  S.C.R.  272,  a
part of Section 3 of the National Security Ordinance was read  down  on  the
ground that  "acting  in  any  manner  prejudicial  to  the  maintenance  of
supplies and services essential to the community" is an expression so  vague
that it is capable of wanton abuse.   The Court held:

"What we have said above in regard to the expressions  'defence  of  India',
'security of India', 'security of the State' and 'relations  of  India  with
foreign powers' cannot  apply  to  the  expression  "acting  in  any  manner
prejudicial to the maintenance of supplies and  services  essential  to  the
community" which occurs in Section 3(2)  of  the  Act.  Which  supplies  and
services are essential to  the  community  can  easily  be  defined  by  the
legislature  and  indeed,  legislations  which  regulate  the   prices   and
possession of essential commodities either enumerate  those  commodities  or
confer upon the appropriate Government the power to do so.  In  the  absence
of a definition of 'supplies and services essential to the  community',  the
detaining authority will be free to extend the application  of  this  clause
of sub-section (2) to any commodities or services the maintenance of  supply
of which, according to him, is essential to the community.

But that is not all.  The  Explanation  to  sub-section  (2)  gives  to  the
particular phrase in that sub-section a meaning which is not only  uncertain
but which, at any given point of time, will be  difficult  to  ascertain  or
fasten upon. According to the Explanation, no  order  of  detention  can  be
made under the National Security Act on any ground  on  which  an  order  of
detention  may  be  made  under  the  Prevention   of   Blackmarketing   and
Maintenance of Supplies of Essential Commodities Act, 1980. The  reason  for
this, which is stated in the Explanation itself, is that  for  the  purposes
of sub-section (2), "acting in any manner prejudicial to the maintenance  of
supplies essential to the community" does not include "acting in any  manner
prejudicial to the maintenance of supplies of commodities essential  to  the
community" as defined in the Explanation to sub-section (1) of Section 3  of
the Act of 1980. Clauses (a) and (b) of the Explanation to Section  3(1)  of
the Act of 1980 exhaust almost the entire range  of  essential  commodities.
Clause (a) relates to committing or instigating any  person  to  commit  any
offence punishable under the Essential  Commodities  Act,  10  of  1955,  or
under any other law for the time being in force relating to the  control  of
the production, supply or distribution of, or trade  and  commerce  in,  any
commodity essential to the community.  Clause  (b)  of  the  Explanation  to
Section 3(1) of the Act of 1980 relates to dealing in  any  commodity  which
is an essential commodity as  defined  in  the  Essential  Commodities  Act,
1955, or with respect to which provisions have been made in any  such  other
law as is referred  to  in  clause  (a).  We  find  it  quite  difficult  to
understand as to which are the remaining commodities outside  the  scope  of
the Act of 1980, in respect of which it can be said that the maintenance  of
their supplies is essential to the community. The particular clause in  sub-
section (2) of Section  3  of  the  National  Security  Act  is,  therefore,
capable of wanton abuse in that, the detaining  authority  can  place  under
detention any person for possession of any commodity on the basis  that  the
authority is  of  the  opinion  that  the  maintenance  of  supply  of  that
commodity is essential to the community. We consider the  particular  clause
not only vague and  uncertain  but,  in  the  context  of  the  Explanation,
capable of being extended cavalierly to supplies, the maintenance  of  which
is not essential to the community. To allow  the  personal  liberty  of  the
people to be taken away by  the  application  of  that  clause  would  be  a
flagrant violation of the  fairness  and  justness  of  procedure  which  is
implicit in the provisions of Article 21." (at page 325-326)



68.   Similarly, in Kartar Singh v. State of Punjab, (1994)  3  SCC  569  at
para 130-131, it was held:

"130. It is the basic principle of legal jurisprudence that an enactment  is
void for vagueness if its prohibitions are not clearly defined.  Vague  laws
offend several important values. It is  insisted  or  emphasized  that  laws
should give the person of ordinary intelligence a reasonable opportunity  to
know what is prohibited, so that he may  act  accordingly.  Vague  laws  may
trap the innocent by not providing fair warning. Such  a  law  impermissibly
delegates basic policy matters to policemen and also judges  for  resolution
on an ad hoc and subjective basis, with the attendant dangers  of  arbitrary
and discriminatory  application.  More  so  uncertain  and  undefined  words
deployed inevitably lead citizens to "steer far wider of the  unlawful  zone
... than if the boundaries of the forbidden areas were clearly marked.

131. Let us examine clause (i) of Section 2(1)(a). This section is shown  to
be blissfully and impermissibly vague and imprecise. As rightly pointed  out
by the  learned  counsel,  even  an  innocent  person  who  ingenuously  and
undefiledly communicates or associates without any knowledge  or  having  no
reason to believe or suspect that the person or class of persons  with  whom
he has communicated or associated is engaged  in  assisting  in  any  manner
terrorists or disruptionists, can be arrested and prosecuted by  abusing  or
misusing or misapplying this definition. In  ultimate  consummation  of  the
proceedings, perhaps that guiltless and innoxious innocent person  may  also
be convicted."



69.   Judged by the standards laid down in the aforesaid  judgments,  it  is
quite clear that the expressions used in 66A are completely  open-ended  and
undefined.  Section 66 in stark contrast to Section 66A states:


"66. Computer related offences.-If any person, dishonestly or  fraudulently,
does any act referred  to  in  Section  43,  he  shall  be  punishable  with
imprisonment for a term which may extend to three years or with  fine  which
may extend to five lakh rupees or with both.


Explanation.-For the purposes of this section,-


(a) the word "dishonestly" shall have the meaning assigned to it in  Section
24 of the Indian Penal Code (45 of 1860);


(b) the word "fraudulently"  shall  have  the  meaning  assigned  to  it  in
Section 25 of the Indian Penal Code (45 of 1860)."



70.   It will be clear that  in  all  computer  related  offences  that  are
spoken of by Section 66, mens  rea  is  an  ingredient  and  the  expression
"dishonestly"  and  "fraudulently"  are  defined   with   some   degree   of
specificity, unlike the expressions used in Section 66A.



71.   The provisions contained in  Sections  66B  up  to  Section  67B  also
provide for various punishments for offences  that  are  clearly  made  out.
For example, under Section 66B, whoever dishonestly receives or retains  any
stolen  computer  resource  or  communication  device   is   punished   with
imprisonment.  Under Section 66C, whoever fraudulently or dishonestly  makes
use of any identification feature of another person is liable to  punishment
with  imprisonment.   Under  Section  66D,  whoever  cheats  by  personating
becomes liable to punishment with imprisonment.   Section  66F  again  is  a
narrowly drawn  section  which  inflicts  punishment  which  may  extend  to
imprisonment for  life  for  persons  who  threaten  the  unity,  integrity,
security or sovereignty of India.  Sections 67 to 67B deal  with  punishment
for offences for  publishing  or  transmitting  obscene  material  including
depicting children in sexually explicit acts in electronic form.



72.   In the Indian Penal Code, a number of the expressions  that  occur  in
Section 66A occur in Section 268.

"268. Public nuisance.-A person is guilty of a public nuisance who does  any
act or is guilty of an illegal omission, which  causes  any  common  injury,
danger or annoyance to the public or to the people in general who  dwell  or
occupy property in the vicinity, or which  must  necessarily  cause  injury,
obstruction, danger or annoyance to persons who may  have  occasion  to  use
any public right.


A common nuisance  is  not  excused  on  the  ground  that  it  causes  some
convenience or advantage."



73.   It is important to notice the distinction  between  the  Sections  268
and  66A.   Whereas,  in  Section  268  the  various  expressions  used  are
ingredients for the offence of a  public  nuisance,  these  ingredients  now
become offences in themselves when it comes to Section 66A.  Further,  under
Section 268, the person should be guilty of an  act  or  omission  which  is
illegal in  nature  -  legal  acts  are  not  within  its  net.   A  further
ingredient is that injury, danger or annoyance must  be  to  the  public  in
general.  Injury,  danger  or  annoyance  are  not  offences  by  themselves
howsoever made and to whomsoever made.  The expression  "annoyance"  appears
also in Sections 294 and 510 of the IPC:


"294. Obscene acts and songs.-Whoever, to the annoyance of others,


(a) does any obscene act in any public place, or


(b) sings, recites or utters any obscene songs, ballad or words, in or  near
any public place,


shall be punished with imprisonment of either description for a  term  which
may extend to three months, or with fine, or with both.

510. Misconduct in public by  a  drunken  person.-Whoever,  in  a  state  of
intoxication, appears in any public place, or in any place  which  it  is  a
trespass in him to enter, and there conducts himself in such a manner as  to
cause annoyance to any person, shall be punished  with  simple  imprisonment
for a term which may extend to twenty-four hours, or  with  fine  which  may
extend to ten rupees, or with both."



74.   If one looks at Section 294,  the  annoyance  that  is  spoken  of  is
clearly defined - that is, it has to be  caused  by  obscene  utterances  or
acts.  Equally, under Section 510, the annoyance that is caused to a  person
must only be by another person who is in a state  of  intoxication  and  who
annoys such person only in a public place or in a place for which  it  is  a
trespass for him to enter.  Such narrowly and closely  defined  contours  of
offences made out under the Penal Code are conspicuous by their  absence  in
Section 66A which in stark contrast uses completely  open  ended,  undefined
and vague language.



75.   Incidentally,  none  of  the  expressions  used  in  Section  66A  are
defined.  Even "criminal intimidation" is not defined - and  the  definition
clause of the Information Technology Act, Section 2 does not say that  words
and expressions that are defined in the Penal Code will apply to  this  Act.




76.    Quite  apart  from  this,  as  has  been  pointed  out  above,  every
expression used is nebulous in meaning.  What may be offensive  to  one  may
not be offensive to another. What may cause annoyance  or  inconvenience  to
one  may  not  cause  annoyance  or  inconvenience  to  another.   Even  the
expression "persistently" is completely imprecise -  suppose  a  message  is
sent thrice, can it be  said  that  it  was  sent  "persistently"?   Does  a
message have to be sent (say) at least eight times, before it  can  be  said
that such message is "persistently" sent?   There  is  no  demarcating  line
conveyed by any of these expressions - and that is what renders the  Section
unconstitutionally vague.



77.   However, the learned Additional Solicitor  General  argued  before  us
that expressions that are used in  Section  66A  may  be  incapable  of  any
precise definition  but  for  that  reason  they  are  not  constitutionally
vulnerable.  He cited a  large  number  of  judgments  in  support  of  this
submission.  None of the cited judgments dealt with a  Section  creating  an
offence which is saved despite  its  being  vague  and  in  capable  of  any
precise definition. In fact, most of the judgments cited before us  did  not
deal  with  criminal  law  at  all.   The  few  that  did  are  dealt   with
hereinbelow.  For instance, Madan Singh v. State of Bihar, (2004) 4 SCC  622
was cited before us.  The passage  cited  from  the  aforesaid  judgment  is
contained in para 19 of the judgment.  The  cited  passage  is  not  in  the
context of an argument  that  the  word  "terrorism"  not  being  separately
defined would, therefore, be struck down on the ground  of  vagueness.   The
cited passage was only in the context of upholding  the  conviction  of  the
accused in that case.  Similarly, in Zameer Ahmed Latifur Rehman  Sheikh  v.
State of Maharashtra & Ors., (2010) 5 SCC 246, the  expression  "insurgency"
was said to be undefined and would defy a precise definition, yet  it  could
be understood to mean break down of peace and tranquility as  also  a  grave
disturbance of public order so as to endanger the security of the State  and
its sovereignty.  This again was said in the context of a challenge  on  the
ground  of  legislative  competence.   The  provisions  of  the  Maharashtra
Control of Organised Crime Act were challenged on the ground that they  were
outside the expression "public order" contained in Entry 1 of List I of  the
7th Schedule of the Constitution of India.  This contention was repelled  by
saying that the expression "public  order"  was  wide  enough  to  encompass
cases of "insurgency".  This case again had nothing to do with  a  challenge
raised on the ground of vagueness.



78.   Similarly, in State of M.P. v. Kedia Leather & Liquor Limited,  (2003)
7 SCC 389, paragraph 8 was cited to  show  that  the  expression  "nuisance"
appearing in Section 133 of the Code of  Criminal  Procedure  was  also  not
capable of precise definition.  This again was said in  the  context  of  an
argument that Section 133 of the Code of Criminal  Procedure  was  impliedly
repealed by the Water (Prevention  and  Control  of  Pollution)  Act,  1974.
This contention was repelled by saying that the areas of  operation  of  the
two provisions were completely different  and  they  existed  side  by  side
being mutually exclusive.  This case again  did  not  contain  any  argument
that the provision contained  in  Section  133  was  vague  and,  therefore,
unconstitutional.  Similarly, in State of Karnataka  v.  Appa  Balu  Ingale,
1995 Supp. (4) SCC 469,  the  word  "untouchability"  was  said  not  to  be
capable of precise definition.  Here  again,  there  was  no  constitutional
challenge on the ground of vagueness.

79.   In fact,  two  English  judgments  cited  by  the  learned  Additional
Solicitor General would demonstrate how vague the words used in Section  66A
are.  In Director of Public Prosecutions v. Collins, (2006) 1 WLR 2223,  the
very expression "grossly offensive" is contained  in  Section  127(1)(1)  of
the U.K. Communications Act, 2003.  A 61 year  old  man  made  a  number  of
telephone calls over two years to the office of a Member of Parliament.   In
these telephone calls and recorded messages  Mr.  Collins  who  held  strong
views on immigration made a reference to "Wogs", "Pakis",  "Black  bastards"
and "Niggers".  Mr.  Collins was charged with sending  messages  which  were
grossly offensive.  The Leicestershire Justices dismissed the  case  against
Mr. Collins on the ground that the telephone calls were  offensive  but  not
grossly offensive.  A reasonable person would not so find the  calls  to  be
grossly offensive.  The Queen's Bench agreed and dismissed the appeal  filed
by the Director of Public Prosecutions.  The House  of  Lords  reversed  the
Queen's Bench stating:

"9. The parties agreed with the rulings of the Divisional Court that  it  is
for the Justices to determine as a question of fact  whether  a  message  is
grossly offensive, that in  making  this  determination  the  Justices  must
apply the standards of an open and just multi-racial society, and  that  the
words must be judged taking  account  of  their  context  and  all  relevant
circumstances. I would agree also. Usages and sensitivities may change  over
time. Language otherwise insulting may be  used  in  an  unpejorative,  even
affectionate,  way,  or  may  be  adopted  as  a  badge  of   honour   ("Old
Contemptibles"). There can be no yardstick of gross offensiveness  otherwise
than by the application of reasonably enlightened,  but  not  perfectionist,
contemporary standards to the particular  message  sent  in  its  particular
context. The test is whether a message is couched in terms liable  to  cause
gross offence to those to whom it relates.

10. In contrast with section  127(2)(a)  and  its  predecessor  subsections,
which require proof of an  unlawful  purpose  and  a  degree  of  knowledge,
section 127(1)(a) provides no explicit guidance on the state of  mind  which
must be proved against a defendant  to  establish  an  offence  against  the
subsection."



80.   Similarly in Chambers v. Director of  Public  Prosecutions,  [2013]  1
W.L.R. 1833, the Queen's Bench was faced with the following facts:

"Following an alert on the Internet social network, Twitter,  the  defendant
became aware that, due to adverse weather conditions, an airport from  which
he was due to travel nine days later was closed.  He  responded  by  posting
several "tweets" on Twitter  in  his  own  name,  including  the  following:
"Crap1 Robin Hood Airport is closed.  You've got a week and  a  bit  to  get
your shit together otherwise I am blowing the airport  sky  high1"  None  of
the defendant's "followers" who read the posting was alarmed by  it  at  the
time.  Some five days after its posting the defendant's tweet  was  read  by
the duty manager responsible for  security  at  the  airport  on  a  general
Internet search for tweets relating to the airport.  Though not believed  to
be a credible threat the matter was reported to the  police.   In  interview
the defendant asserted that the tweet was a joke  and  not  intended  to  be
menacing.  The defendant was charged with sending  by  a  public  electronic
communications network  a  message  of  a  menacing  character  contrary  to
section 127(1)(a) of the Communications Act 2003.  He  was  convicted  in  a
magistrates' court and, on appeal, the Crown Court  upheld  the  conviction,
being satisfied that  the  message  was  "menacing  per  se"  and  that  the
defendant was, at the very least, aware that his message was of  a  menacing
character."



81.   The Crown Court  was  satisfied  that  the  message  in  question  was
"menacing" stating that  an  ordinary  person  seeing  the  tweet  would  be
alarmed and, therefore, such  message  would  be  "menacing".   The  Queen's
Bench Division reversed the Crown Court stating:

"31.  Before concluding that a message is criminal  on  the  basis  that  it
represents a menace, its precise terms, and any inferences to be drawn  from
its precise terms, need to be examined in the context in and  the  means  by
which the message was sent.  The Crown Court  was  understandably  concerned
that this message was sent at a time when, as we all know, there  is  public
concern about acts of terrorism and the continuing threat  to  the  security
of the country from possible further terrorist  attacks.   That  is  plainly
relevant to context, but the offence is not directed  to  the  inconvenience
which may be caused by the message.  In any event, the more one reflects  on
it, the clearer it becomes that this message did not represent  a  terrorist
threat, or indeed any other form of threat.  It was posted on "Twitter"  for
widespread reading, a conversation  piece  for  the  defendant's  followers,
drawing attention to himself and his predicament.  Much more  significantly,
although it purports to address "you", meaning  those  responsible  for  the
airport, it was not sent to anyone at the airport or anyone responsible  for
airport security, or indeed any form  of  public  security.   The  grievance
addressed by the message is that the  airport  is  closed  when  the  writer
wants it to be open.  The language and  punctuation  are  inconsistent  with
the writer intending it to be or it  to  be  taken  as  a  serious  warning.
Moreover, as Mr. Armson noted, it is unusual for a  threat  of  a  terrorist
nature to invite the person making it to  be  readily  identified,  as  this
message did.  Finally, although we are accustomed to very brief messages  by
terrorists to indicate that a bomb or  explosive  device  has  been  put  in
place and will detonate shortly,  it  is  difficult  to  imagine  a  serious
threat in which  warning  of  it  is  given  to  a  large  number  of  tweet
"followers" in ample time for the threat to be reported and extinguished."



82.   These two cases illustrate how judicially trained minds would  find  a
person guilty or not guilty depending upon the Judge's  notion  of  what  is
"grossly  offensive"  or   "menacing".    In   Collins'   case,   both   the
Leicestershire Justices and two Judges  of  the  Queen's  Bench  would  have
acquitted Collins whereas the House of Lords convicted him.   Similarly,  in
the Chambers case, the Crown Court would  have  convicted  Chambers  whereas
the Queen's Bench acquitted him.  If judicially trained minds  can  come  to
diametrically opposite conclusions on the same set of facts  it  is  obvious
that expressions such as "grossly offensive"  or  "menacing"  are  so  vague
that there is no manageable standard by which a person can be said  to  have
committed an offence or not to have committed an offence.  Quite  obviously,
a prospective offender of  Section  66A  and  the  authorities  who  are  to
enforce Section 66A have absolutely no manageable standard by which to  book
a person for an offence under Section 66A.   This  being  the  case,  having
regard also to the two English precedents cited by  the  learned  Additional
Solicitor General, it  is  clear  that  Section  66A  is  unconstitutionally
vague.

Ultimately, applying the tests referred to in Chintaman Rao and  V.G.  Row's
case, referred to earlier in the judgment, it  is  clear  that  Section  66A
arbitrarily, excessively and disproportionately invades the  right  of  free
speech and  upsets  the  balance  between  such  right  and  the  reasonable
restrictions that may be imposed on such right.

Chilling Effect And Overbreadth

83.   Information that may be grossly offensive or  which  causes  annoyance
or inconvenience are undefined terms which take into the net  a  very  large
amount of protected and innocent  speech.  A  person  may  discuss  or  even
advocate by means of writing  disseminated  over  the  internet  information
that may be a view or point of view pertaining  to  governmental,  literary,
scientific or other matters which may be unpalatable to certain sections  of
society. It is obvious that an expression of a view on any matter may  cause
annoyance, inconvenience or  may  be  grossly  offensive  to  some.   A  few
examples will suffice.   A certain section of a particular community may  be
grossly offended or annoyed by communications over the internet by  "liberal
views" - such as the emancipation of women or the  abolition  of  the  caste
system or whether certain members of a non proselytizing religion should  be
allowed to bring persons within their fold who  are  otherwise  outside  the
fold.  Each  one  of  these  things  may  be  grossly  offensive,  annoying,
inconvenient,  insulting  or  injurious  to  large  sections  of  particular
communities and would fall within the net cast by Section 66A. In  point  of
fact, Section 66A is cast so  widely  that  virtually  any  opinion  on  any
subject would be covered by it, as any serious opinion dissenting  with  the
mores of the day would be caught within its net.  Such is the reach  of  the
Section and if it  is  to  withstand  the  test  of  constitutionality,  the
chilling effect on free speech would be total.



84.   Incidentally, some of our  judgments  have  recognized  this  chilling
effect of free speech.  In R. Rajagopal v. State of T.N., (1994) 6 SCC  632,
this Court held:

"19. The principle of Sullivan [376 US 254 : 11 L  Ed  2d  686  (1964)]  was
carried forward - and this is relevant to the  second  question  arising  in
this case - in Derbyshire County Council v. Times Newspapers Ltd. [(1993)  2
WLR 449 : (1993) 1 All ER 1011, HL] , a decision rendered by  the  House  of
Lords. The plaintiff, a local authority brought an action  for  damages  for
libel  against  the  defendants  in  respect  of  two   articles   published
in Sunday Times questioning  the  propriety  of  investments  made  for  its
superannuation fund. The articles were headed  "Revealed:  Socialist  tycoon
deals with Labour Chief" and "Bizarre deals of  a  council  leader  and  the
media tycoon". A preliminary issue was raised whether the  plaintiff  has  a
cause of action against the defendant. The trial Judge  held  that  such  an
action was maintainable but on appeal  the  Court  of  Appeal  held  to  the
contrary. When the matter reached  the  House  of  Lords,  it  affirmed  the
decision of the Court of Appeal  but  on  a  different  ground.  Lord  Keith
delivered the judgment agreed to by all other  learned  Law  Lords.  In  his
opinion,  Lord   Keith   recalled   that   in Attorney   General v. Guardian
Newspapers Ltd. (No. 2)[(1990) 1 AC 109 : (1988) 3 All ER  545  :  (1988)  3
WLR 776, HL] popularly known as "Spycatcher case", the House  of  Lords  had
opined  that  "there  are  rights  available  to  private   citizens   which
institutions of... Government are not in a position to exercise unless  they
can show that it is in the public interest to  do  so".  It  was  also  held
therein that not only was there no public interest in allowing  governmental
institutions to sue for libel, it  was  "contrary  to  the  public  interest
because to admit such actions would place an undesirable fetter  on  freedom
of speech" and further that action for defamation or threat of  such  action
"inevitably have an inhibiting effect on freedom  of  speech".  The  learned
Law Lord referred to the decision of the United States Supreme Court  in New
York Times v. Sullivan [376 US 254 : 11 L Ed  2d  686  (1964)]  and  certain
other decisions of American Courts and observed - and  this  is  significant
for our purposes-
"while these decisions were related most directly to the provisions  of  the
American Constitution concerned with securing freedom of speech, the  public
interest considerations which underlaid them  are  no  less  valid  in  this
country. What has been described as 'the chilling  effect'  induced  by  the
threat of civil actions for libel is very important. Quite often  the  facts
which would justify a defamatory publication  are  known  to  be  true,  but
admissible evidence capable of proving those facts is not available."
Accordingly, it was held that the action was not maintainable in law."


85.   Also in S. Khushboo v. Kanniammal,   (2010)  5  SCC  600,  this  Court
said:

"47. In the present case, the substance of the controversy does  not  really
touch on whether premarital sex is socially acceptable.  Instead,  the  real
issue of  concern  is  the  disproportionate  response  to  the  appellant's
remarks. If the  complainants  vehemently  disagreed  with  the  appellant's
views, then they should have contested her views through the news  media  or
any other public platform. The law should not be used in a manner  that  has
chilling effects on the "freedom of speech and expression".


86.   That the content of the right under Article 19(1)(a) remains the  same
whatever the means of  communication  including  internet  communication  is
clearly established by Reno's case (supra) and by  The  Secretary,  Ministry
of Information & Broadcasting v.  Cricket  Association  of  Bengal  &  Anr.,
(1995) SCC 2 161 at Para 78 already referred to. It is thus clear  that  not
only are the expressions used in Section  66A  expressions  of  inexactitude
but  they  are  also  over  broad  and  would  fall  foul  of  the  repeated
injunctions of this Court that restrictions on the freedom  of  speech  must
be couched in the narrowest possible terms. For  example,  see,  Kedar  Nath
Singh v. State of Bihar, [1962] Supp. 2 S.C.R. 769 at 808 -809. In point  of
fact, judgments of the Constitution Bench of this  Court  have  struck  down
sections which are similar in  nature.   A  prime  example  is  the  section
struck down in the first Ram Manohar Lohia case, namely, Section  3  of  the
U.P. Special Powers Act, where the persons who "instigated" expressly or  by
implication any person or class of persons not to pay or  to  defer  payment
of any liability were punishable.  This Court specifically held  that  under
the Section a wide net was cast to catch a variety of  acts  of  instigation
ranging from friendly advice to systematic propaganda.  It was held that  in
its wide amplitude, the Section  takes  in  the  innocent  as  well  as  the
guilty, bonafide and malafide advice and  whether  the  person  be  a  legal
adviser, a friend or a well wisher  of  the  person  instigated,  he  cannot
escape the tentacles of the Section.    The  Court  held  that  it  was  not
possible to predicate with some kind of precision the  different  categories
of instigation  falling  within  or  without  the  field  of  constitutional
prohibitions.   It  further  held  that  the  Section   must   be   declared
unconstitutional as the offence made out would  depend  upon  factors  which
are uncertain.



87.   In Kameshwar Prasad & Ors.  v. The  State  of  Bihar  &  Anr.,  [1962]
Supp. 3 S.C.R. 369, Rule  4-A  of  the  Bihar  Government  Servants  Conduct
Rules, 1956 was challenged.  The rule states "No  government  servant  shall
participate in any  demonstration  or  resort  to  any  form  of  strike  in
connection with any matter pertaining to his conditions of service."



88.   The aforesaid rule was challenged under Articles 19 (1)(a) and (b)  of
the Constitution. The Court followed  the  law  laid  down  in  Ram  Manohar
Lohia's case [1960] 2 S.C.R. 821 and accepted the challenge.  It first  held
that demonstrations are a form of speech and then held:

"The approach to the question regarding the constitutionality  of  the  rule
should be whether the  ban  that  it  imposes  on  demonstrations  would  be
covered by the limitation of the guaranteed rights contained in Art. 19  (2)
and 19(3). In regard to both these clauses the only relevant criteria  which
has been suggested by the respondent-State is that the rule  is  framed  "in
the interest of public  order".  A  demonstration  may  be  defined  as  "an
expression of one's feelings by outward signs." A demonstration such  as  is
prohibited by, the rule may be of the most innocent type - peaceful  orderly
such as the mere wearing of a badge by a Government servant  or  even  by  a
silent assembly say outside office hours - demonstrations which could in  no
sense be suggested to involve any  breach  of  tranquility,  or  of  a  type
involving incitement to or capable of leading to disorder. If the  rule  had
confined itself to demonstrations of type which would lead to disorder  then
the validity of that rule could have been sustained but what the  rule  does
is the imposition of a blanket-ban on all demonstrations of whatever type  -
innocent as well as otherwise - and in consequence its  validity  cannot  be
upheld." (at page 374)



89.   The Court further went on to hold that remote disturbances  of  public
order by demonstration would fall outside  Article  19(2).   The  connection
with public order has to be intimate, real and  rational  and  should  arise
directly from the demonstration that is sought to be  prohibited.   Finally,
the Court held:

"The vice of the rule, in our opinion, consists in this that it lays  a  ban
on every type of demonstration - be the same however  innocent  and  however
incapable of causing a breach of public tranquility  and  does  not  confine
itself to those forms of demonstrations which might lead  to  that  result."
(at page 384)

90.   These two  Constitution  Bench  decisions  bind  us  and  would  apply
directly  on  Section  66A.   We,  therefore,  hold  that  the  Section   is
unconstitutional  also  on  the  ground  that  it  takes  within  its  sweep
protected speech and speech  that  is  innocent  in  nature  and  is  liable
therefore to be used in such a way as to have  a  chilling  effect  on  free
speech and would, therefore, have  to  be  struck  down  on  the  ground  of
overbreadth.

Possibility of an act being abused is not a ground to test its validity:

91.   The learned Additional Solicitor  General  cited  a  large  number  of
judgments on the proposition that the fact that Section 66A  is  capable  of
being abused by the persons who administered it is not a ground to test  its
validity if it  is  otherwise  valid.   He  further  assured  us  that  this
Government was committed to free speech and that Section 66A  would  not  be
used to curb  free  speech,  but  would  be  used  only  when  excesses  are
perpetrated by persons on  the  rights  of  others.   In  The  Collector  of
Customs, Madras v. Nathella Sampathu Chetty & Anr.,  [1962]  3  S.C.R.  786,
this Court observed:


"....This Court has held in numerous rulings, to which it is unnecessary  to
refer, that the possibility of the abuse of the powers under the  provisions
contained in any statute is no ground for  declaring  the  provision  to  be
unreasonable or void. Commenting on a passage in the judgment of  the  Court
of Appeal of Northern Ireland which stated:


"If such powers are capable of being exercised reasonably it  is  impossible
to say that they may not also be exercised unreasonably"


and treating this as a ground  for  holding  the  statute  invalid  Viscount
Simonds observed in Belfast Corporation v. O.D. Commission [ 1960 AC 490  at
pp. 520-521] :


"It appears to me that the short answer to this contention (and I  hope  its
shortness will not be regarded as disrespect) is  that  the  validity  of  a
measure is not to be determined by its application to  particular  cases....
If it is not so exercised (i.e. if the powers are  abused)  it  is  open  to
challenge and there is no need for express provision for  its  challenge  in
the statute."


The possibility of abuse of a statute otherwise valid does not impart to  it
any element of invalidity. The converse must  also  follow  that  a  statute
which is otherwise invalid as being unreasonable  cannot  be  saved  by  its
being administered in a reasonable manner. The  constitutional  validity  of
the statute would have to be determined on the basis of its  provisions  and
on the ambit of its operation as  reasonably  construed.  If  so  judged  it
passes the test of  reasonableness,  possibility  of  the  powers  conferred
being improperly used is no ground for pronouncing the  law  itself  invalid
and similarly if the law properly interpreted and tested  in  the  light  of
the requirements set out in Part III of the Constitution does not  pass  the
test it cannot be pronounced valid merely because it is  administered  in  a
manner which might  not  conflict  with  the  constitutional  requirements."
(at page 825)





92.   In this case, it is the converse proposition which would really  apply
if the learned Additional Solicitor General's argument is  to  be  accepted.
If Section 66A is otherwise invalid, it cannot  be  saved  by  an  assurance
from the learned Additional Solicitor General that it will  be  administered
in a reasonable manner.  Governments may come and  Governments  may  go  but
Section 66A goes on forever.  An assurance from the present Government  even
if carried out faithfully would  not  bind  any  successor  Government.   It
must, therefore, be held that Section 66A must be judged on its  own  merits
without any reference to how well it may be administered.




Severability:

93.   The argument of the  learned  Additional  Solicitor  General  on  this
score is reproduced by us verbatim from one of his written submissions:

"Furthermore it is respectfully submitted  that  in  the  event  of  Hon'ble
Court not being satisfied about the constitutional validity  of  either  any
expression or a part of the  provision,  the  Doctrine  of  Severability  as
enshrined under Article 13 may be resorted to."



94.   The submission is vague:  the  learned  Additional  Solicitor  General
does not indicate which part or parts of Section 66A can possibly be  saved.
This Court in Romesh Thappar v. The  State  of  Madras,  [1950]  S.C.R.  594
repelled a contention of severability when it came to the  courts  enforcing
the fundamental right under Article 19(1)(a) in the following terms:


"It was, however, argued that Section 9(1-A) could not be considered  wholly
void,  as,  under  Article  13(1),  an  existing  law  inconsistent  with  a
fundamental right is void only to the extent of  the  inconsistency  and  no
more. Insofar as the securing of the public safety  or  the  maintenance  of
public  order  would  include  the  security  of  the  State,  the  impugned
provision, as applied to the latter purpose, was covered by  clause  (2)  of
Article 19 and must, it was said, be held to be  valid.  We  are  unable  to
accede to this contention. Where a law purports to authorise the  imposition
of restrictions on a fundamental right in  language  wide  enough  to  cover
restrictions  both  within  and  without  the  limits  of   constitutionally
permissible legislative action affecting such right, it is not  possible  to
uphold it even so far  as  it  may  be  applied  within  the  constitutional
limits, as it is not severable. So long as  the  possibility  of  its  being
applied for purposes not sanctioned by  the  Constitution  cannot  be  ruled
out, it must be held to  be  wholly  unconstitutional  and  void.  In  other
words,  clause  (2)  of  Article  19  having  allowed  the   imposition   of
restrictions on the freedom of speech and expression  only  in  cases  where
danger to the State is involved, an enactment, which  is  capable  of  being
applied to cases where no such danger could arise,  cannot  be  held  to  be
constitutional and valid to any extent." (At page 603)




95.   It has been held by us that Section  66A  purports  to  authorize  the
imposition of restrictions on the fundamental  right  contained  in  Article
19(1)(a) in language wide enough  to  cover  restrictions  both  within  and
without the limits of constitutionally permissible legislative  action.   We
have held following  K.A.  Abbas'  case  (Supra)  that  the  possibility  of
Section 66A being applied for purposes not sanctioned  by  the  Constitution
cannot  be  ruled  out.   It  must,  therefore,  be  held   to   be   wholly
unconstitutional  and void.  Romesh  Thappar's  Case  was  distinguished  in
R.M.D. Chamarbaugwalla v. The Union of  India,  [1957]  S.C.R.  930  in  the
context of a right under Article 19(1)(g) as follows:


"20. In Romesh Thappar v. State of Madras [ (1950) SCR 594] ,  the  question
was as to the validity of  Section  9(1-A)  of  the  Madras  Maintenance  of
Public Order Act,  23  of  1949.  That  section  authorised  the  Provincial
Government to prohibit the entry and  circulation  within  the  State  of  a
newspaper "for the purpose of securing the public safety or the  maintenance
of  public  order."  Subsequent  to  the  enactment  of  this  statute,  the
Constitution came into force, and the validity  of  the  impugned  provision
depended  on  whether  it  was  protected  by  Article  19(2),  which  saved
"existing law insofar as it relates  to  any  matter  which  undermines  the
security of or tends to overthrow the State." It  was  held  by  this  Court
that as the purposes mentioned in Section 9(1-A)  of  the  Madras  Act  were
wider in amplitude than those specified in Article 19(2), and as it was  not
possible to split up Section 9(1-A)  into  what  was  within  and  what  was
without the protection of Article 19(2), the  provision  must  fail  in  its
entirety. That is really a decision that the impugned provision was  on  its
own contents inseverable. It is not an authority for the position that  even
when a provision is severable, it must be struck down  on  the  ground  that
the principle of severability is  inadmissible  when  the  invalidity  of  a
statute arises by reason of its  contravening  constitutional  prohibitions.
It should be mentioned  that  the  decision  in Romesh  Thappar v. State  of
Madras [ (1950)  SCR  594]  was  referred  to  in State  of  Bombay v.  F.N.
Balsara [    (1951)    SCR    682]     and State     of     Bombay v. United
Motors (India) Ltd. [ (1953) SCR 1069 at 1098-99] and distinguished."[pic]




96.   The present being a case of  an  Article  19(1)(a)  violation,  Romesh
Thappar's judgment would  apply  on  all  fours.   In  an  Article  19(1)(g)
challenge,  there is no question of  a law being applied  for  purposes  not
sanctioned by the Constitution for the simple reason that the eight  subject
matters of Article 19(2) are conspicuous by their absence in  Article  19(6)
which only speaks of  reasonable  restrictions  in  the  interests  of   the
general public.  The present is a  case  where,  as  has  been  held  above,
Section 66A does not fall within any of the  subject  matters  contained  in
Article 19(2) and the possibility of its being applied for purposes  outside
those subject matters is clear.  We therefore hold that no part  of  Section
66A  is  severable  and  the  provision  as  a  whole   must   be   declared
unconstitutional.



Article 14

97.   Counsel for the petitioners  have  argued  that  Article  14  is  also
infringed in that an offence  whose  ingredients  are  vague  in  nature  is
arbitrary and unreasonable and would result in arbitrary and  discriminatory
application  of  the  criminal  law.  Further,  there  is  no   intelligible
differentia between the medium of print, broadcast, and real live speech  as
opposed to  speech  on  the  internet  and,  therefore,  new  categories  of
criminal offences cannot be made on this  ground.   Similar  offences  which
are committed on the internet have  a  three  year  maximum  sentence  under
Section 66A as opposed to defamation which has a two year maximum  sentence.
Also, defamation is a non-cognizable offence whereas under Section  66A  the
offence is cognizable.



98.   We have already held that Section 66A  creates  an  offence  which  is
vague  and  overbroad,  and,  therefore,  unconstitutional   under   Article
19(1)(a) and not saved by Article 19(2).  We have also held that  the  wider
range of circulation over the internet cannot restrict the  content  of  the
right under Article 19(1)(a) nor can it justify its denial.   However,  when
we come to discrimination under Article 14, we  are  unable  to  agree  with
counsel for the  petitioners  that  there  is  no  intelligible  differentia
between the medium of print, broadcast and real live speech  as  opposed  to
speech on  the  internet.  The  intelligible  differentia  is  clear  -  the
internet gives any individual a platform which requires very  little  or  no
payment through which to air his views.  The  learned  Additional  Solicitor
General has correctly said that  something  posted  on  a  site  or  website
travels like lightning and can  reach  millions  of  persons  all  over  the
world.  If the petitioners were right, this Article 14 argument would  apply
equally to all other offences created  by  the  Information  Technology  Act
which are not the subject matter of challenge in these petitions.   We  make
it clear that there is an intelligible differentia  between  speech  on  the
internet and other mediums of communication for which separate offences  can
certainly  be  created  by  legislation.   We  find,  therefore,  that   the
challenge on the ground of Article 14 must fail.



Procedural Unreasonableness

99.    One  other  argument  must  now  be  considered.   According  to  the
petitioners,  Section  66A  also  suffers  from  the  vice   of   procedural
unreasonableness.   In  that,  if,  for  example,  criminal  defamation   is
alleged, the safeguards available under Section 199  Cr.P.C.  would  not  be
available for a like offence committed under Section 66A.   Such  safeguards
are that no court shall take cognizance of such an  offence  except  upon  a
complaint made by some  person  aggrieved  by  the  offence  and  that  such
complaint will have to be made within six months from the date on which  the
offence is alleged to have been committed.  Further, safeguards that are  to
be found in Sections 95 and 96 of the Cr.P.C. are also absent when it  comes
to Section 66A. For example, where any newspaper book or  document  wherever
printed appears to contain matter which  is  obscene,  hurts  the  religious
feelings of some community, is seditious in nature, causes enmity or  hatred
to a certain section of the public,  or  is  against  national  integration,
such book, newspaper or document may be seized  but  under  Section  96  any
person having any interest in such newspaper, book or  document  may  within
two months from the date of a publication seizing such documents,  books  or
newspapers apply to the High court to  set  aside  such  declaration.   Such
matter is to be heard by a Bench consisting of at least three Judges  or  in
High Courts which consist of less than three Judges, such special  Bench  as
may be composed of all the Judges of that High Court.



100.  It is clear that Sections 95 and 96 of  the  Criminal  Procedure  Code
reveal a certain degree of sensitivity to  the  fundamental  right  to  free
speech and expression.  If matter is to be seized on specific grounds  which
are relatable to the subject matters contained in Article  19(2),  it  would
be open for persons affected by such seizure to get  a  declaration  from  a
High Court consisting of at least three Judges that in fact  publication  of
the so-called offensive matter does  not  in  fact  relate  to  any  of  the
specified subjects contained in Article 19(2).

Further, Section 196 of the Cr.P.C. states:

"196.  Prosecution  for  offences  against  the  State  and   for   criminal
conspiracy to commit such offence.- (1) No Court shall take cognizance of-

(a) any offence  punishable  under  Chapter  VI  or  under  Section  153-A,
[Section 295-A or sub-section (1) of Section 505] of the Indian Penal  Code,
1860 (45 of 1860), or

(b) a criminal conspiracy to commit such offence, or

(c) any such abetment, as is described in Section 108-A of the Indian  Penal
Code (45 of 1860),

except with the previous sanction of the Central Government or of the  State
Government.

[(1-A)

No Court shall take cognizance of-

(a) any offence punishable under Section 153-B or sub-section  (2)  or  sub-
section (3) of Section 505 of the Indian Penal Code, 1860 (45 of 1860), or

(b) a criminal conspiracy to commit such offence,

except with the previous sanction of the Central Government or of the  State
Government or of the District Magistrate.]

(2)  No  court  shall  take  cognizance  of  the  offence  of  any  criminal
conspiracy punishable under Section 120-B of the Indian Penal  Code  (45  of
1860), other than a criminal conspiracy to commit  [an  offence]  punishable
with death, imprisonment for life or rigorous imprisonment  for  a  term  of
two  years  or  upwards,  unless  the  State  Government  or  the   District
Magistrate has consented in writing to the initiation of the proceedings:

Provided that where the criminal conspiracy is one to which  the  provisions
of Section 195 apply, no such consent shall be necessary.

 (3) The Central Government or the State Government  may,  before  according
sanction  [under sub-section (1)  or  sub-section  (1-A)  and  the  District
Magistrate may, before according sanction under sub-section (1-A)]  and  the
State Government or the  District  Magistrate  may,  before  giving  consent
under sub-section  (2),  order  a  preliminary  investigation  by  a  police
officer not being below the rank of Inspector, in  which  case  such  police
officer shall have the powers referred to  in  sub-section  (3)  of  Section
155."



101.  Again,  for  offences  in  the  nature  of  promoting  enmity  between
different groups on grounds  of  religion  etc.  or  offences  relatable  to
deliberate and malicious acts intending to  outrage  religious  feelings  or
statements that  create  or  promote  enmity,  hatred  or  ill-will  between
classes can only  be  taken  cognizance  of  by  courts  with  the  previous
sanction  of  the  Central  Government  or  the  State   Government.    This
procedural safeguard does not apply even  when  a  similar  offence  may  be
committed over the internet where a  person  is  booked  under  Section  66A
instead of the aforesaid Sections.

Having struck down Section 66A on substantive grounds, we  need  not  decide
the procedural unreasonableness aspect of the Section.



Section 118 of the Kerala Police Act.

102.  Learned counsel for the Petitioner in Writ Petition No.  196  of  2014
assailed sub-section (d) of Section 118 which is set out hereinbelow:

"118. Penalty for causing grave violation of public order  or  danger.-  Any
person who,-

       (d)  Causes  annoyance  to  any  person  in  an  indecent  manner  by
statements or    verbal or comments or telephone calls or calls of any  type
or by chasing or sending messages or mails by any means;
shall, on conviction be punishable with imprisonment for a  term  which  may
extend to three years or with fine not  exceeding  ten  thousand  rupees  or
with both."



103.   Learned  counsel  first  assailed  the  Section  on  the  ground   of
legislative competence stating that this being a Kerala Act, it  would  fall
outside Entries1 and 2 of List II and fall within Entry 31  of  List  I.  In
order to appreciate the argument we set out the relevant entries:
"List - I

31. Posts and telegraphs; telephones, wireless, broadcasting and other  like
forms of communication.

List - II

1. Public order (but not including the use of any  naval,  military  or  air
force or any other armed force of the Union or of any  other  force  subject
to the control of the Union or of any contingent or unit thereof in  aid  of
the civil power).

2. Police (including railway and village police) subject to  the  provisions
of entry 2A of List I."



      The Kerala Police Act as a whole would necessarily fall under Entry  2
of List II.  In addition, Section 118 would also  fall  within  Entry  1  of
List II in that as its marginal note tells us it deals  with  penalties  for
causing grave violation of public order or danger.



104.  It is well settled  that  a  statute  cannot  be  dissected  and  then
examined as to under what field of legislation each  part  would  separately
fall.  In A.S. Krishna v. State of Madras, [1957] S.C.R.  399,  the  law  is
stated thus:

"The position, then, might thus be summed up : When a  law  is  impugned  on
the ground that it is ultra  vires  the  powers  of  the  legislature  which
enacted it, what has  to  be  ascertained  is  the  true  character  of  the
legislation. To do that, one must have regard to the enactment as  a  whole,
to its objects and to the scope and effect of its  provisions.  If  on  such
examination it is found that the  legislation  is  in  substance  one  on  a
matter assigned to the legislature, then it must be held to be valid in  its
entirety, even though it might incidentally  trench  on  matters  which  are
beyond its competence. It would  be  quite  an  erroneous  approach  to  the
question to view such a statute not as an  organic  whole,  but  as  a  mere
collection of sections, then disintegrate it into parts, examine under  what
heads of legislation those parts would severally fall, and by  that  process
determine what portions thereof are intra vires,  and  what  are  not."  (at
page 410)



105.  It is, therefore, clear that the Kerala Police  Act  as  a  whole  and
Section 118 as part thereof falls in pith and substance within Entry 2  List
II, notwithstanding any incidental encroachment that it  may  have  made  on
any other Entry in List I. Even otherwise, the penalty created  for  causing
annoyance in an indecent manner in pith  and  substance  would  fall  within
Entry 1 List III which speaks of criminal law and would thus be  within  the
competence of the State Legislature in any case.



106.  However, what has been said about Section 66A would apply directly  to
Section 118(d) of  the  Kerala  Police  Act,  as  causing  annoyance  in  an
indecent manner suffers from the same type of vagueness  and  over  breadth,
that led to the invalidity of Section 66A, and for  the  reasons  given  for
striking down Section 66A, Section 118(d)  also  violates  Article  19(1)(a)
and not being a reasonable restriction on  the  said  right  and  not  being
saved under any of the subject matters contained in Article 19(2) is  hereby
declared to be unconstitutional.



Section 69A and the Information Technology  (Procedure  and  Safeguards  for
Blocking for Access of Information by Public) Rules, 2009.

107.  Section 69A of the Information Technology Act  has  already  been  set
out in paragraph 2 of the judgment.   Under  sub-section  (2)  thereof,  the
2009 Rules have been framed. Under Rule  3,  the  Central  Government  shall
designate by notification in the official gazette an officer of the  Central
Government not below the  rank  of  a  Joint  Secretary  as  the  Designated
Officer for the purpose of issuing direction for blocking for access by  the
public any information referable to Section 69A of the Act.  Under  Rule  4,
every organization  as  defined  under  Rule  2(g),  (which  refers  to  the
Government of India, State Governments, Union Territories  and  agencies  of
the Central Government as may be notified in the  Official  Gazette  by  the
Central Government)- is to designate one  of  its  officers  as  the  "Nodal
Officer".  Under Rule 6, any person may send their complaint to  the  "Nodal
Officer" of the concerned Organization for blocking,  which  complaint  will
then have to be examined by the concerned Organization regard being  had  to
the parameters laid down in Section 69A(1) and  after  being  so  satisfied,
shall transmit such complaint through its Nodal Officer  to  the  Designated
Officer in a format specified by the Rules.  The Designated Officer  is  not
to entertain any  complaint  or  request  for  blocking  directly  from  any
person.  Under Rule 5, the Designated Officer  may  on  receiving  any  such
request or complaint from the Nodal Officer of an  Organization  or  from  a
competent  court,  by  order  direct  any  intermediary  or  agency  of  the
Government to  block  any  information  or  part  thereof  for  the  reasons
specified in 69A(1). Under Rule 7 thereof, the request/complaint shall  then
be examined by a Committee of Government Personnel  who  under  Rule  8  are
first  to  make  all  reasonable  efforts  to  identify  the  originator  or
intermediary who has hosted the information.  If  so  identified,  a  notice
shall issue to appear and submit their reply at a specified  date  and  time
which shall not be less than 48 hours from the date and time of  receipt  of
notice by such person or intermediary.   The  Committee  then  examines  the
request and is to consider whether the request is covered by 69A(1)  and  is
then to give a specific recommendation in writing to the  Nodal  Officer  of
the concerned Organization.  It  is  only  thereafter  that  the  Designated
Officer is to  submit  the  Committee's  recommendation  to  the  Secretary,
Department of Information Technology who is  to  approve  such  requests  or
complaints.  Upon such approval, the Designated Officer  shall  then  direct
any  agency  of  Government  or  intermediary   to   block   the   offending
information. Rule 9  provides  for  blocking  of  information  in  cases  of
emergency where delay caused would be fatal in which case the  blocking  may
take place without any  opportunity  of  hearing.   The  Designated  Officer
shall then, not later than 48 hours of the issue of the  interim  direction,
bring the request before the Committee referred to earlier, and only on  the
recommendation of the Committee, is the Secretary Department of  Information
Technology to pass the final order.  Under Rule 10, in the case of an  order
of a competent court in India, the Designated Officer shall, on  receipt  of
a certified copy of a court order, submit it to  the  Secretary,  Department
of Information Technology and  then  initiate  action  as  directed  by  the
Court.  In addition  to  the  above  safeguards,  under  Rule  14  a  Review
Committee shall meet at least once in two months and record its findings  as
to whether directions issued are in accordance with Section  69A(1)  and  if
it is of the contrary opinion, the  Review  Committee  may  set  aside  such
directions and issue orders to unblock the  said  information.   Under  Rule
16, strict confidentiality shall be maintained regarding  all  the  requests
and complaints received and actions taken thereof.



108.  Learned  counsel  for  the  petitioners  assailed  the  constitutional
validity of Section 69A, and  assailed  the  validity  of  the  2009  Rules.
According to learned counsel, there is no  pre-decisional  hearing  afforded
by the Rules particularly to  the  "originator"  of  information,  which  is
defined under Section  2(za)  of  the  Act  to  mean  a  person  who  sends,
generates, stores  or  transmits  any  electronic  message;  or  causes  any
electronic message to be sent,  generated,  stored  or  transmitted  to  any
other person. Further, procedural safeguards  such  as  which  are  provided
under Section 95 and 96 of the Code of Criminal Procedure are not  available
here.  Also, the confidentiality provision  was  assailed  stating  that  it
affects the fundamental rights of the petitioners.



109.  It will be noticed that Section 69A unlike Section 66A is  a  narrowly
drawn provision with several safeguards.  First and foremost,  blocking  can
only be resorted to where the Central Government is  satisfied  that  it  is
necessary so to do.  Secondly, such necessity is relatable only to  some  of
the subjects set  out  in  Article  19(2).   Thirdly,  reasons  have  to  be
recorded in writing in such blocking order so that they may be  assailed  in
a writ petition under Article 226 of the Constitution.

110.  The Rules further provide for a hearing before the Committee set up  -
which Committee then looks into whether or not  it  is  necessary  to  block
such information.  It is only when the Committee finds that there is such  a
necessity that a  blocking  order  is  made.   It  is  also  clear  from  an
examination of Rule 8 that it is not merely  the  intermediary  who  may  be
heard. If the "person" i.e. the originator is identified he is  also  to  be
heard before a blocking order is passed. Above all, it is only  after  these
procedural safeguards are met that blocking orders  are  made  and  in  case
there is a certified copy of a court order,  only  then  can  such  blocking
order also be made.  It is only an intermediary who finally fails to  comply
with the directions issued  who  is  punishable  under  sub-section  (3)  of
Section 69A.



111.  Merely because certain additional safeguards such as  those  found  in
Section  95  and  96  CrPC  are  not  available  does  not  make  the  Rules
constitutionally infirm.  We  are  of  the  view  that  the  Rules  are  not
constitutionally infirm in any manner.



Section 79 and the Information Technology (Intermediary  Guidelines)  Rules,
2011.

112.  Section 79 belongs to Chapter XII of the Act in  which  intermediaries
are exempt from liability if they fulfill the  conditions  of  the  Section.
Section 79 states:

"79.  Exemption  from  liability  of  intermediary  in  certain   cases.-(1)
Notwithstanding anything contained in any law for the time  being  in  force
but subject to the provisions of sub-sections (2) and (3),  an  intermediary
shall not be liable for any third party information, data, or  communication
link made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if-
(a) the function of the intermediary is limited to  providing  access  to  a
communication system over which information made available by third  parties
is transmitted or temporarily stored or hosted; or
(b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence  while  discharging  his  duties
under this Act and also  observes  such  other  guidelines  as  the  Central
Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if-
(a) the intermediary has conspired or abetted or aided or  induced,  whether
by threats or promise or otherwise in the commission of the unlawful act;
(b)  upon  receiving  actual  knowledge,  or  on  being  notified   by   the
appropriate  Government  or  its  agency  that  any  information,  data   or
communication  link  residing  in  or  connected  to  a  computer   resource
controlled by the intermediary is being used to  commit  the  unlawful  act,
the intermediary fails to expeditiously remove or  disable  access  to  that
material on that resource without vitiating the evidence in any manner.
Explanation.-For the purposes of this section, the expression  "third  party
information" means any information dealt with  by  an  intermediary  in  his
capacity as an intermediary.]"



113.  Under the 2011 Rules, by Rule  3  an  intermediary  has  not  only  to
publish the rules and regulations, privacy policy  and  user  agreement  for
access or usage of the intermediary's computer resource but he has  also  to
inform all users of the various matters set out in Rule  3(2).   Since  Rule
3(2) and 3(4) are important, they are set out hereinbelow:-
"3. Due diligence to be observed  by  intermediary.-The  intermediary  shall
observe following due diligence while discharging his duties, namely:-

(2) Such rules and regulations,  terms  and  conditions  or  user  agreement
shall inform the users of computer resource not to  host,  display,  upload,
modify, publish, transmit, update or share any information that-

(a) belongs to another person and to which the user does not have any  right
to;

(b)  is  grossly  harmful,  harassing,  blasphemous   defamatory,   obscene,
pornographic,  paedophilic,  libellous,  invasive  of   another's   privacy,
hateful, or racially, ethnically  objectionable,  disparaging,  relating  or
encouraging money laundering or  gambling,  or  otherwise  unlawful  in  any
manner whatever;

(c) harm minors in any way;

(d) infringes any patent, trademark, copyright or other proprietary rights;

(e) violates any law for the time being in force;

(f) deceives or misleads the addressee about the origin of such messages  or
communicates any information which  is  grossly  offensive  or  menacing  in
nature;

(g) impersonate another person;

(h) contains software viruses or any other computer code, files or  programs
designed to interrupt, destroy or limit the functionality  of  any  computer
resource;

(i) threatens the unity, integrity,  defence,  security  or  sovereignty  of
India, friendly relations with foreign states, or  public  order  or  causes
incitement  to  the  commission  of  any  cognisable  offence  or   prevents
investigation of any offence or is insulting any other nation.

(4) The intermediary, on whose computer system the information is stored  or
hosted or published, upon obtaining knowledge by itself or been  brought  to
actual knowledge by an affected person in writing or through  e-mail  signed
with electronic signature about any such information as  mentioned  in  sub-
rule (2) above, shall act within  thirty-six  hours  and  where  applicable,
work with user or owner of such  information  to  disable  such  information
that is in contravention of sub-rule (2).  Further  the  intermediary  shall
preserve such information and associated records for at  least  ninety  days
for investigation purposes."

114.  Learned counsel for the petitioners assailed Rules 3(2)  and  3(4)  on
two basic grounds.  Firstly, the intermediary is  called  upon  to  exercise
its own judgment under sub-rule (4) and then disable information that is  in
contravention of sub-rule (2), when intermediaries by their very  definition
are only persons who offer a neutral  platform  through  which  persons  may
interact with each other over the  internet.   Further,  no  safeguards  are
provided as in the 2009 Rules made under Section 69A.  Also,  for  the  very
reasons that Section 66A is bad, the petitioners assailed  sub-rule  (2)  of
Rule 3 saying that it is vague and over broad and has no relation  with  the
subjects specified under Article 19(2).



115.  One of the petitioners' counsel also assailed Section 79(3)(b) to  the
extent that it  makes  the  intermediary  exercise  its  own  judgment  upon
receiving actual knowledge that any information  is  being  used  to  commit
unlawful acts.  Further,  the  expression  "unlawful  acts"  also  goes  way
beyond the specified subjects delineated in Article 19(2).



116.  It  must  first  be  appreciated  that  Section  79  is  an  exemption
provision.   Being  an  exemption  provision,  it  is  closely  related   to
provisions which provide for offences including Section 69A.  We  have  seen
how under Section 69A blocking can take  place  only  by  a  reasoned  order
after complying with several procedural safeguards including  a  hearing  to
the originator and intermediary.  We have also seen how there are  only  two
ways in which a blocking order  can  be  passed  -  one  by  the  Designated
Officer after complying with the 2009 Rules and the other by the  Designated
Officer when he has to follow an order passed  by  a  competent  court.  The
intermediary applying its own mind to whether information should  or  should
not be blocked is noticeably absent in Section 69A read with 2009 Rules.



117.  Section 79(3)(b) has to be read down to  mean  that  the  intermediary
upon receiving actual knowledge that a court order has  been  passed  asking
it to expeditiously remove or disable access to certain material  must  then
fail to expeditiously remove or disable access to that  material.   This  is
for the reason that otherwise it would be very difficult for  intermediaries
like Google, Facebook etc. to act when millions of  requests  are  made  and
the intermediary is  then  to  judge  as  to  which  of  such  requests  are
legitimate and  which  are  not.   We  have  been  informed  that  in  other
countries worldwide this view has gained acceptance, Argentina being in  the
forefront. Also, the Court order and/or the notification by the  appropriate
Government or its agency must strictly conform to the subject  matters  laid
down in Article 19(2).  Unlawful acts beyond what is laid  down  in  Article
19(2) obviously cannot  form  any  part  of  Section  79.   With  these  two
caveats, we refrain from striking down Section 79(3)(b).



118.  The learned Additional Solicitor General informed  us  that  it  is  a
common  practice  worldwide  for  intermediaries  to  have  user  agreements
containing what is stated in Rule 3(2).   However, Rule  3(4)  needs  to  be
read down in the same manner as Section 79(3)(b).  The knowledge  spoken  of
in the said sub-rule must only be through  the  medium  of  a  court  order.
Subject to this,  the  Information  Technology  (Intermediaries  Guidelines)
Rules, 2011 are valid.



119.   In conclusion, we may summarise what has been held by us above:

Section 66A of the Information Technology Act, 2000 is struck  down  in  its
entirety being violative of Article 19(1)(a) and  not  saved  under  Article
19(2).

Section 69A and the  Information  Technology  (Procedure  &  Safeguards  for
Blocking  for  Access   of   Information   by   Public)   Rules   2009   are
constitutionally valid.

Section 79 is valid subject to Section 79(3)(b)  being  read  down  to  mean
that an intermediary upon receiving actual knowledge from a court  order  or
on being notified by the appropriate government or its agency that  unlawful
acts relatable to Article 19(2) are going to  be  committed  then  fails  to
expeditiously remove or disable access to  such  material.   Similarly,  the
Information Technology  "Intermediary  Guidelines"  Rules,  2011  are  valid
subject to Rule 3 sub-rule (4)  being  read  down  in  the  same  manner  as
indicated in the judgment.

Section 118(d) of the Kerala Police Act is struck down  being  violative  of
Article 19(1)(a) and not saved by Article 19(2).

All the writ petitions are disposed in the above terms.



............................................J.
                                  (J. Chelameswar)



............................................J.
                                  (R.F. Nariman)
New Delhi,
March 24, 2015.


-----------------------