Shreya Singhal vs. Union of India

MANU/SC/0329/2015
Equivalent/Neutral Citation: 2015X AD (S.C .) 586, 2015(149)AIC 224, AIR2015SC 1523, 2015 (2) ALD(C rl.) 971 (SC ), 2015 (2) ALT (C rl.) 251
(A.P.), 2015(2)BomC R(C ri)515, II(2015)C C R47(SC ), (2015)2C ompLJ143(SC ), 218(2015)DLT370(SC ), 2015GLH(1)741, 2015/INSC /257,
2015(2)J.L.J.R.161, 2015(2)KLJ292, 2015(2)KLT1(SC ), (2015)3MLJ162(SC ), 2015(3)N.C .C .169, 2015(2)PLJR138, 2015(2)RC R(C riminal)403,
2015(4)SC ALE1, (2015)5SC C 1, 2015 (4) SC J 283, [2015]5SC R963, 2015(1)UC 594
IN THE SUPREME COURT OF INDIA

Writ Petition (Criminal) No. 167 of 2012, 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 and Writ Petition (Criminal) No. 196 of 2014
Decided On: 24.03.2015
Shreya Singhal Vs. Union of India (UOI)
Hon'ble Judges/Coram:
Jasti Chelameswar and Rohinton Fali Nariman, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Ranjeeta Rohatgi, Mohit D. Ram, Abhishek Chaudhary,
Ravi Prakash Mehrotra, Vijay Kumar and D. Mahesh Babu
For Respondents/Defendant: Asha Gopalan Nair, Ashok Kumar Singh, V.G. Pragasam,
D.S. Mahra, Anip Sachthey and R.V. Kameshwaran
JUDGMENT
Rohinton Fali 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 This Section was not in the Act as originally
enacted, but came into force by virtue of an Amendment Act of 2009 with effect from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
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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 MANU/SC/0006/1950 : (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. and Ors. v. Union of India MANU/SC/0090/1961
: (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.
and Ors. v. Union of India and Ors. MANU/SC/0038/1972 : (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 and Anr. MANU/SC/0310/2010 : (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.
1 1 . 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
MANU/USSC/0180/1919 : 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.
1 2 . Justice Brandeis in his famous concurring judgment in Whitney v. California
MANU/USSC/0176/1927 : 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 MANU/USSC/0058/1942 : 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
MANU/USSC/0110/1940 : 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.
1 8 . 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 and Ors. v. The State of Bihar and Anr.
MANU/SC/0410/1962 : 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 Article 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 and Ors. v. Union of India and
Ors. MANU/SC/0406/1984 : (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.
B. Article 19(2)
One challenge to Section 66A made by the Petitioners' counsel is that the offence
created by the said Section has no proximate relation with any of the eight subject
matters contained in Article 19(2). We may incidentally mention that the State has
claimed that the said Section can be supported under 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. and Ors. v. Union of India MANU/SC/0090/1961 : (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 MANU/SC/0058/1960 : (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 MANU/SC/0008/1950 : (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)
2 4 . In State of Madras v. V.G. Row MANU/SC/0013/1952 : (1952) S.C.R. 597, this
Court said:
This Court had occasion in Dr. Khare's case MANU/SC/0004/1950 : (1950)
S.C.R. 519 to define the scope of the judicial review under Clause (5) of Article
19 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)
2 5 . Similarly, in Mohd. Faruk v. State of Madhya Pradesh and Ors.
MANU/SC/0046/1969 : (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 MANU/SC/0004/1950 : (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;
(iv) In case of print media or medium of television and films whatever is truly
recorded can only be published or broadcasted I televised I viewed. While in
case of an internet, morphing of images, change of voices and many other
technologically advance methods to create serious potential social disorder can
be applied.
(v) By the medium of internet, rumors having a serious potential of creating a
serious social disorder can be spread to trillions of people without any check
which is not possible in case of other mediums.
(vi) In case of mediums like print media, television and films, it is broadly not
possible to invade privacy of unwilling persons. While in case of an internet, it
is very easy to invade upon the privacy of any individual and thereby violating
his right Under Article 21 of the Constitution of India.
(vii) By its very nature, in the mediums like newspaper, magazine, television or

a movie, it is not possible to sexually harass someone, outrage the modesty of
anyone, use unacceptable filthy language and evoke communal frenzy which
would lead to serious social disorder. While in the case of an internet, it is
easily possible to do so by a mere click of a button without any geographical
limitations and almost in all cases while ensuring anonymity of the offender.
(viii) By the very nature of the medium, the width and reach of internet is
manifold as against newspaper and films. The said mediums have inbuilt
limitations i.e. a person will have to buy/borrow a newspaper and/or will have
to go to a theater to watch a movie. For television also one needs at least a
room where a television is placed and can only watch those channels which he
has subscribed and that too only at a time where it is being telecast. While in
case of an internet a person abusing the internet, can commit an offence at any
place at the time of his choice and maintaining his anonymity in almost all
cases.
(ix) In case of other mediums, it is impossible to maintain anonymity as a
result of which speech ideal opinions films having serious potential of creating
a social disorder never gets generated since its origin is bound to be known.
While in case of an internet mostly its abuse takes place under the garb of
anonymity which can be unveiled only after thorough investigation.
(x) In case of other mediums like newspapers, television or films, the approach
is always institutionalized approach governed by industry 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.
2 9 . In fact, this aspect was considered in Secretary Ministry of Information &
Broadcasting, Government of India v. Cricket Association of Bengal
MANU/SC/0246/1995 : (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 audiovisual 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 Section9(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 MANU/SC/0006/1950 : (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 and Anr. v. State of Delhi MANU/SC/0007/1950 : (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).
3 3 . In Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia
MANU/SC/0058/1960 : (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 and Ors.
MANU/SC/0054/1965 : (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 MANU/SC/0035/1969: (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.
3 6 . It will be remembered that Justice Holmes in Schenck v. United States
MANU/USSC/0119/1919 : 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. MANU/USSC/0140/1911 : 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 MANU/USSC/0180/1919 : 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 MANU/USSC/0173/1949 : 93 L.
Ed. 1131 (1949) at page 1134-1135, Brandenburg v. Ohio MANU/USSC/0132/1969 : 23
L. Ed. 2d 430 (1969) at 434-435 & 436, Virginia v. Black MANU/USSC/0028/2003 : 155
L. Ed. 2d 535 (2003) at page 551, 552 and 5534.
38. We have echoes of it in our law as well S. Rangarajan v. P. Jagjivan and Ors.
MANU/SC/0475/1989 : (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 MANU/SC/0015/1952 : (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. MANU/SC/0101/1957 : (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
MANU/SC/0074/1962 : 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 and Ors. MANU/SC/0982/1996 : 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.
4 1 . 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 MANU/SC/0080/1964 : (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 MANU/SC/3637/2006 : 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).
4 6 . In a recent judgment of this Court, Aveek Sarkar v. State of West Bengal
MANU/SC/0081/2014 : 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 MANU/UKHL/0071/2006 :
(2006) 1 WLR 2223 @ para 9 and 21
- Connolly v. Director of Public Prosecutions reported in
MANU/UKAD/0043/2007 : (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 MANU/USSC/0132/1969 : 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 MANU/USSC/0173/1949 : 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 v. California MANU/USSC/0176/1927 : 274 US 357];
(vi) Information which contains fighting or abusive material;
Chaplinsky v. New Hampshire MANU/USSC/0058/1942 : 315 U.S. 568 (1942)
(vii) Information which promotes hate speech i.e.
(a) Information which propagates hatred towards individual or a
groups, on the basis of race, religion, religion, casteism, ethnicity,
(b) Information which is intended to show the supremacy of one
particular religion/race/caste by making disparaging, abusive and/or
highly inflammatory remarks against religion/race/caste.
(c) Information depicting religious deities, holy persons, holy symbols,
holy books which are created to insult or to show contempt or lack of
reverence for such religious deities, holy persons, holy symbols, holy
books or towards something which is considered sacred or inviolable.
(viii) Satirical or iconoclastic cartoon and caricature which fails the test laid
down in Hustler Magazine, Inc. v. Falwell MANU/USSC/0049/1988 : 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. v. State of West Bengal and Ors. MANU/SC/0081/2014 :
(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. v. State of West Bengal and Ors. MANU/SC/0081/2014 :
(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
5 0 . 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:
1. Unpleasant or disgusting, as to the senses
2. Causing anger or annoyance; insulting
3. For the purpose of attack rather than defence.
Menace:
1. To threaten with violence, danger, etc.
2. A threat of the act of threatening
3. Something menacing; a source of danger
4. A nuisance
Annoy:
1. To irritate or displease
2. To harass with repeated attacks Annoyance
1. The feeling of being annoyed
2. The act of annoying.
Inconvenience
1. The state of quality of being inconvenient
2. Something inconvenient; a hindrance, trouble, or difficulty
Danger:
1. The state of being vulnerable to injury, loss, or evil risk 2. A person
or a thing that may cause injury pain etc.
Obstruct:
1. To block (a road a passageway, etc.) with an obstacle
2. To make (progress or activity) difficult.
3. To impede or block a clear view of.
Obstruction: a person or a thing that obstructs. Insult:
1. To treat, mention, or speak to rudely; offend; affront
2. To assault; attack

3. An offensive or contemptuous remark or action; affront; slight
4 . A person or thing producing the effect of an affront = some
television is an insult to intelligence
5. An injury or trauma.
52. The U.S. Supreme Court has repeatedly held in a series of judgments that where no
reasonable standards are laid down to define guilt in a Section which creates an
offence, and where no clear guidance is given to either law abiding citizens or to
authorities and courts, a Section which creates an offence and which is vague must be
struck down as being arbitrary and unreasonable. Thus, in Musser v. Utah
MANU/USSC/0036/1948 : 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 MANU/USSC/0130/1948 : 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. MANU/USSC/0140/1926 :
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 Sub-section 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
MANU/USSC/0036/1948 : 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,
MANU/USSC/0146/1921 : 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 MANU/USSC/0201/1937 : 301 U.S.
242, 259 : 57 S. Ct. 732, 739 : 81 L. Ed. 1066. (at page 851-852)
5 4 . In Burstyn v. Wilson MANU/USSC/0107/1952 : 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, indefinable 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 MANU/USSC/0045/1999 : 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
MANU/USSC/0108/1875 : 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 MANU/USSC/0169/1972 : 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. MANU/USSC/0082/1997 : 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 Luther's 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.
6 3 . In Federal Communications Commission v. Fox Television Stations
MANU/USSC/0066/2012 : 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. MANU/USSC/0140/1926 : 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 MANU/USSC/0187/1972 : 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
MANU/USSC/0042/1939 : 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 MANU/USSC/0169/1972 : 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
MANU/SC/0067/1960 : (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 Article 19(1)(d) and (e), and though the object of the Act and its
purpose would undoubtedly attract the provisions of Article 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 Section 4-A
suffers from the same infirmities as Section 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 Article 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 Section 4 or Section 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 Article 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
Article 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 and Anr. MANU/SC/0053/1970 : (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 Article 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 MANU/SC/0067/1960 : 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 and Ors. v. Union of India and Ors.

MANU/SC/0038/1969 : 1969 (2) SCC 166, Section27 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 and Ors. v. Union of India and Ors. MANU/SC/0051/1981 : (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 MANU/SC/1597/1994 : (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:
6 6 . 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.
7 3 . 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 Indian Penal
Code:
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.
5 1 0 . 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.
7 5 . 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
MANU/SC/0297/2004 : (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 and Ors.
MANU/SC/0289/2010 : (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 MANU/SC/0625/2003 :
(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 MANU/SC/0151/1993 : 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 MANU/UKHL/0071/2006 : (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 MANU/UKAD/0597/2012:
(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: "Crap 1
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 high 1" 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
8 3 . 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.
8 4 . Incidentally, some of our judgments have recognized this chilling effect of free
speech. In R. Rajagopal v. State of T.N. MANU/SC/0056/1995 : (1994) 6 SCC 632, this
Court held:
19. The principle of Sullivan MANU/USSC/0245/1964 : 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.
MANU/UKHL/0010/1993 : (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 :
MANU/UKHL/0018/1988 : (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 MANU/USSC/0245/1964 : 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 MANU/SC/0310/2010 : (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 and Anr. MANU/SC/0246/1995 : (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 MANU/SC/0074/1962 : (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 and Ors. v. The State of Bihar and Anr. MANU/SC/0410/1962
: (1962) Supp. 3 S.C.R. 369, Rule 4A 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."
8 8 . 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
MANU/SC/0058/1960 : (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 Article 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)
8 9 . 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 over breadth.
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 and Anr. MANU/SC/0089/1961 : (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:
9 3 . 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 MANU/SC/0006/1950 : (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 MANU/SC/0020/1957 : (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 MANU/SC/0006/1950 : (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 MANU/SC/0006/1950 :
(1950) SCR 594 was referred to in State of Bombay v. F.N. Balsara
MANU/SC/0009/1951 : (1951) SCR 682 and State of Bombay v. United Motors
(India) Ltd. MANU/SC/0095/1953 : (1953) SCR 1069 at 1098-99 and
distinguished.
9 6 . 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.
9 8 . 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 Code of
Criminal Procedure 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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 108A 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 153B 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 Entries 1 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
3 1 . 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 MANU/SC/0035/1956 : (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.
1 0 7 . 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 96of 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.
1 0 9 . 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.
1 1 0 . 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 Code of Criminal Procedure 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:
7 9 . 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.
1 1 7 . 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:
(a) Section 66A of the Information Technology Act, 2000 is struck down in its
entirety being violative of Article 19(1)(a) and not saved Under Article 19(2).
(b) Section 69A and the Information Technology (Procedure & Safeguards for
Blocking for Access of Information by Public) Rules 2009 are constitutionally
valid.
(c) Section 79 is valid subject to Section 79(3)(b) being read down to mean

that an intermediary upon receiving actual knowledge from a court order or on
being notified by the appropriate government or its agency that unlawful acts
relatable to Article 19(2) are going to be committed then fails to expeditiously
remove or disable access to such material. Similarly, the Information
Technology "Intermediary Guidelines" Rules, 2011 are valid subject to Rule 3
Sub-rule (4) being read down in the same manner as indicated in the judgment.
(d) Section 118(d) of the Kerala Police Act is struck down being violative of
Article 19(1)(a) and not saved by Article 19(2).
All the writ petitions are disposed in the above terms.
1 The genealogy of this Section may be traced back to Section 10(2)(a) of the U.K. Post
Office (Amendment) Act, 1935, which made it an offence to send any message by
telephone which is grossly offensive or of an indecent, obscene, or menacing character.
This Section was substantially reproduced by Section 66 of the UK Post Office Act, 1953
as follows:
66. Prohibition of sending offensive or false telephone messages or false telegrams, etc.
If any person--
(a) sends any message by telephone which is grossly offensive or of an indecent,
obscene or menacing character;
(b) sends any message by telephone, or any telegram, which he knows to be false, for
the purpose of causing annoyance, inconvenience or needless anxiety to any other
person; or
(c) persistently makes telephone calls without reasonable cause and for any such
purpose as aforesaid,
he shall be liable on summary conviction to a fine not exceeding ten pounds, or to
imprisonment for a term not exceeding one month, or to both.
This Section in turn was replaced by Section 49 of the British Telecommunication Act,
1981 and Section 43 of the British Telecommunication Act, 1984. In its present form in
the UK, it is Section 127 of the Telecommunication Act, 2003 which is relevant and
which is as follows:
127. Improper use of public electronic communications network
(1) A person is guilty of an offence if he-
(a) sends by means of a public electronic communications network a message or other
matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) cause any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance,
inconvenience or needless anxiety to another, he-
(a) sends by means of a public electronic communications network, a message that he
knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary
conviction, to imprisonment for a term not exceeding six months or to a fine not
exceeding level 5 on the standard scale, or to both.
(4) Sub-sections (1) and (2) do not apply to anything done in the course of providing a
programme service (within the meaning of the Broadcasting Act 1990 (c.42)).
2 Incidentally, the Ark of the Covenant is perhaps the single most important focal point

in Judaism. The original ten commandments which the Lord himself gave to Moses was
housed in a wooden chest which was gold plated and called the Ark of the Covenant and
carried by the Jews from place to place until it found its final repose in the first temple-
that is the temple built by Solomon.
3 A good example of the difference between advocacy and incitement is Mark Antony's
speech in Shakespeare's immortal classic Julius Caesar. Mark Antony begins cautiously.
Brutus is chastised for calling Julius Caesar ambitious and is repeatedly said to be an
"honourable man". He then shows the crowd Caesar's mantle and describes who struck
Caesar where. It is at this point, after the interjection of two citizens from the crowd,
that Antony says-
ANTONY-Good friends, sweet friends, let me not stir you up
To such a sudden flood of mutiny.
They that have done this deed are honourable:
What private griefs they have, alas, I know not,
That made them do it: they are wise and honourable,
And will, no doubt, with reasons answer you.
I come not, friends, to steal away your hearts:
I am no orator, as Brutus is;
But, as you know me all, a plain blunt man,
That love my friend; and that they know full well
That gave me public leave to speak of him:
For I have neither wit, nor words, nor worth,
Action, nor utterance, nor the power of speech,
To stir men's blood: I only speak right on;
I tell you that which you yourselves do know;
Show you sweet Caesar's wounds, poor poor dumb mouths,
And bid them speak for me: but were I Brutus,
And Brutus Antony, there were an Antony
Would ruffle up your spirits and put a tongue
In every wound of Caesar that should move
The stones of Rome to rise and mutiny.
ALL-We'll mutiny.
4 In its present form the clear and present danger test has been reformulated to say
that:
The constitutional guarantees of free speech and free press do not permit a State to
forbid or proscribe advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action and is likely to
incite or produce such action.
Interestingly, the US Courts have gone on to make a further refinement. The State may
ban what is called a "true threat".
'True threats' encompass those statements where the speaker means to communicate a
serious expression of an intent to commit an act of unlawful violence to a particular
individual or group of individuals.
The speaker need not actually intend to carry out the threat. Rather, a prohibition on
true threats protects individuals from the fear of violence and from the disruption that
fear engenders, in addition to protecting people from the possibility that the threatened
violence will occur. Intimidation in the constitutionally proscribable sense of the word is
a type of true threat, where a speaker directs a threat to a person or group of persons
with the intent of placing the victim in fear of bodily harm or death.
See Virginia v. Black (Supra) and Watts v. United States 22 L. Ed. 2d. 664 at 667
© Manupatra Information Solutions Pvt. Ltd.


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MANU/SC/0329/2015

IN THE SUPREME COURT OF INDIA

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