IMPORTANT POINTS
Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2).
Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid.
Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material. Similarly, the Information Technology “Intermediary Guidelines” Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment.
Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2).

Headnote:(a) Constitution of India – Article 19(1)(a) and (2) – Freedom of speech and expression – The right to individual citizen, important for democratic set up – Informed citizenry is a pre-condition for meaningful governance – Culture of open dialogue is of great societal importance. (Para 9, 10)
       [1950] S.C.R. 594; [1962] 3 S.C.R. 842; [1973] 2 S.C.R. 757; (2010) 5 SCC 600; 250 US 616 (1919); 71 L. Ed. 1095 – Relied upon
       (b) Constitution of India – Article 19 – Freedom of speech and expression – Concepts – Discussion, advocacy and incitement – Article 19(1)(a) protects discussion and advocacy – Only when discussion and advocacy becomes incitement, Article 19(2) gets attracted – State may make law to curb incitement. (Para 13)
       (c) Interpretation of statute – Article 19(1)(a) r/w 19(2), Constitution of India – Use of American Judgments – Although US constitution absolutely prohibits any law abridging freedom of speech – However, Courts have never given literal effect to it – Both the US and India protect the freedom of speech and expression as well as press freedom – Both the Supreme Courts of US and India take the view that only that should be abridged or restricted which is absolutely necessary – In US a restrictive law will be valid if it fulfills a compelling necessity to achieve an important governmental or societal goal – In India, however, a law abridging freedom of speech has to be covered by one of the eight subject matters set out under Article 19(2) – If not, it will be struck down – American judgments differ widely from Indian views in matter of sub-serving the general public interest – Therefore, while interpreting Article 19(1)(a) and (2) Courts in India may not be guided by American judgments, but these should be taken into consideration. (Para 16, 17)
       86 L. Ed. 1031; 1962 Supp. (3) S.C.R. 369; (1985) 2 SCR 287 – Relied upon
       (d) Information Technology Act, 2000 – Section 2(v) and 66A r/w Article 19(1)(a) – Section 66A covering all information over the internet – Section 2(v) defining ‘information’ does not refer to content, but medium – Public’s right to know is directly affected by Section 66A – All information put on same level – Dissemination of all information constitutes offence, if causing annoyance or inconvenience to someone – No distinction made between mere discussion or advocacy, and incitement – Making use of internet, if causing annoyance or inconvenience, an offence – Affects freedom of speech and expression – Internet is the market place of ideas satisfying peoples’ right to know – Section 66A curbs this right. (Para 20)
       94 L. Ed. 925 – Referred
       (e) Constitution of India – Article 19(2) – Curtailing freedom of speech and expression – Promoting public order not one of grounds specified in Section 19(2) – Freedom of speech and expression cannot be curtailed to promote general public interest. (Para 21)
       [1962] 3 S.C.R. 842 – Relied upon
       (f) Constitution of India – Article 19(2) – The limitation imposed in the interests of public order should be reasonable restriction – Should have proximate connection or nexus with public order – Both the substantive and the procedural aspects of the impugned restrictive law should be reasonable. (Para 22, 23, 24, 25)
       [1960] 2 S.C.R. 821; [1950] S.C.R. 759; [1952] S.C.R. 597; [1970] 1 S.C.R. 156; [1950] S.C.R. 519 – Relied upon
       (g) Constitution of India – Article 19(2) – Distinction between print and other media on the one hand and the internet on the other – Legislature may provide for separate offences for free speech over the internet and other media. (Para 28)
       (1995) 2 SCC 161 – Relied upon
       (h) Constitution of India – Article 19(2) – Public order – Synonymous with public safety and tranquility – 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 – Public order, law and order and security of State – Distinction – An act may affect law and order but not public order – Similarly an act may affect public order but not security of the State – Public order is the even tempo of the life of the community – Acts directed against individuals not disturbing tranquility of the society – Do not constitute acts disturbing public order. (Para 32, 33, 34)
       [1960] 2 S.C.R. 821; [1966] 1 S.C.R. 709; [1970] 3 S.C.R. 288 – Relied upon
       [1950] S.C.R. 594; [1950] S.C.R. 605 – Referred
       (i) Information Technology Act, 2000 – Section 66A r/w Article 19(2), Constitution of India – Public Order – Section 66A intending to punish any person using internet to disseminate any information even to one individual – Section makes no distinction between mass dissemination and dissemination to one person – Such message not required to have a clear tendency to disrupt public order – May not have any potential of disturbing the community at large – Nexus between message and consequential action conspicuously absent – No ingredient of incitement threatening public safety or tranquility – No proximate relationship to public order whatsoever – Ultra vires Article 19(2). (Para 35)
       (j) Information Technology Act, 2000 – Section 66A r/w Article 19(2), Constitution of India – Freedom of speech and expression – Clear and present danger, or tendency test – The information to constitute offence must have a tendency to create public disorder – Not an ingredient of offence under section 66A – Section 66A cannot be upheld. (Para 41)
       63 L. Ed. 470; 250 U.S. 616 (1919); (1989) 2 SCC 574; [1952] S.C.R. 654; [1957] S.C.R. 860; 1962 Supp. (2) S.C.R. 769; (1996) 1 SCC 130 – Relied upon
       93 L. Ed. 1131 (1949); 23 L. Ed. 2d 430 (1969); 155 L. Ed. 2d 535 (2003); 22 L. Ed. 2d. 664 – Referred
       (k) Information Technology Act, 2000 – Section 66A – Defamation – Involves injury to reputation – Section 66A is not concerned with this aspect – It concerns only with annoyance or inconvenience – Defamatory statements not covered by Section 66A. (Para 43)
       (l) Information Technology Act, 2000 – Section 66A – Grounds constituting offence u/s 66A having no proximity with incitement to commit an offence – Ingredients of section 66A, namely causing of annoyance, inconvenience, danger etc., or being grossly offensive or having a menacing character not offences in themselves under IPC – Further these being unrelated to any of the eight subject matters under Article 19(2) cannot be ground to curtail freedom of speech, therefore ultra vires Article 19(1)(a) and not saved by Article 19(2) – Section 66A declared unconstitutional. (Para 44)
       (m) Information Technology Act, 2000 – Section 66A – Decency or Morality – Obscenity – Even grossly annoying or offensive statement may not be obscene – In Section 66A the word obscene is conspicuously absent – Ultra vires Article 19(1)(a) of the Constitution. (Para 46)
       [1965] 1 S.C.R. 65; (2006) 8 SCC 433; (2014) 4 SCC 257 – Relied upon
       (n) Interpretation of statute – Reading down – Information Technology Act, 2000 – Section 66A – Contention of reading the subjects matters contained in Article 19(2) of the Constitution into section 66A – Not possible in view of section 69A containing some of the subject matters of Article 19(2) – Obviously legislature not intending to providing these matters in section 66A – Such reading down would be to do complete violence to the language of section 66A – In fact the ASG asking not merely to read down Section 66A – He is asking for a wholesale substitution of the provision – Not possible. (Para 48, 49)
       (o) Information Technology Act, 2000 – Section 66A – Expressions used in 66A are completely open-ended and undefined in contrast to section 66 and 66B to 67B – In Section 66 mens rea is an ingredient and the expression “dishonestly” and “fraudulently” are defined – Similarly, offences u/s 66B to 67B are also clearly made out – Similarly a number of expressions occurring in section 66A also occurring in section 268, IPC – However, while these expressions are ingredients for offence of public nuisance under Section 268, they are offences by themselves under section 66A – Annoyance is defined in section 294 and 510 IPC not in Section 66A – Section 66A does not even import definitions from IPC – Section 66A held constitutionally vague – It arbitrarily, excessively and disproportionately invades the right of free speech putting unreasonable restrictions. (Para 69, 70, 73, 78, 82)
       [1950] S.C.R. 759; [1952] S.C.R. 597; 92 L. Ed. 562; 92 L. Ed. 840; 96 L. Ed. 1098; 527 U.S. 41 (1999); 92 U.S. 214 (1875); 33 L.Ed. 2d. 222; 521 U.S. 844 (1997); 132 S.Ct. 2307; [1961] 1 S.C.R. 970; [1971] 2 S.C.R. 446; (1969) 2 SCC 166; [1982] 2 S.C.R. 272 – Relied upon
       (2006) 1 WLR 2223; [2013] 1 W.L.R. 1833 – Referred
       (2004) 4 SCC 622; (2010) 5 SCC 246; (2003) 7 SCC 389; 1995 Supp. (4) SCC 469 – Distinguished
       (p) Information Technology Act, 2000 – Section 66A r/w Article 19(1)(a), Constitution of India – Any information or opinion on any subject disseminated on the internet may be annoying, inconvenient or offensive to some individual or community – Would fall within the net cast by Section 66A – Having total chilling effect on free speech – Content of Article 19(1)(a) unaffected by medium of communication – Expressions used in Section 66A not only suffer from inexactitude, but also contrary to repeated injunctions of Supreme Court that restrictions on the freedom of speech must be couched in the narrowest possible terms – Offences under section 66A depending upon uncertain factors – Apprehension of disturbance of public order by an act is no ground under Article 19(2) of the Constitution of India – Section 66A prohibits protected as well as innocent speech – Suffers from vice of overbreadth – Held unconstitutional. (Para 83, 86, 89, 90)
       521 U.S. 844 (1997); (1995) SCC 2 161; (1994) 6 SCC 632; (2010) 5 SCC 600; [1962] Supp. 2 S.C.R. 769; [1962] Supp. 3 S.C.R. 369 – Relied upon
       (q) Interpretation of statute – Constitutionality – If section 66A is otherwise invalid – It cannot be saved by an assurance from the Government that it will not be abused – Governments come and go – Such assurance will not bind successor Government – Section 66A will remain if held valid – Its validity has to be judged on merits. (Para 92)
       [1962] 3 S.C.R. 786 – Relied upon
       (r) Information Technology Act, 2000 – Section 66A r/w Article 13, Constitution of India – Severability – Contention of severing part of the provision considered invalid – ASG not indicating which part to be saved – In case of fundamental right under Article 19(1)(a) of the Constitution doctrine of severability does not apply – Possibility of Section 66A being applied for purposes not sanctioned by the Constitution cannot be ruled out – No part of the provision ois severable – Entire provision must be struck down as unconstitutional. (Para 94, 95, 96)
       [1950] S.C.R. 594 – Relied upon
       [1957] S.C.R. 930 – Referred
       (s) Information Technology Act, 2000 – Section 66A and Article 14, Constitution of India – Speech on the internet and other mediums of communication are different – Separate offences can be created by legislature for internet and other medium of communication – Section 66A targeting only internet – No discrimination – Not hit by Article 14. (Para 98)
       (t) Information Technology Act, 2000 – Section 66A – Procedural unreasonableness – Section 66A suffers from lack of procedural safeguards as available under sections 95, 96, 196 and 199 CrPC – Matter not decided in view of having struck down Sec tio 66A on substantive grounds. (Para 99 to 101)
       (u) Interpretation of statute – Constitutionality – Legislative competence – Section 118, Kerala Police Act – The Act as a whole falls under Entry 2, List II – Section 118 also falls under Entry 1, List II – Within legislative competence of State Legislature – Penalty created falls under Entry 1, List III – Further, a statute cannot be dissected and then examined as to under what field of legislation each part would separately fall – Act and section 118 not invalid on ground of legislative competence. (Para 103, 104, 105)
       (v) Kerala Police Act – Section 118(d) – Suffers from same type of vagueness and over-breadth as section 66A, Information Technology Act, 2000 – Section 118(d), therefore also violates Article 19(1)(a) an not saved by Article 19(2) – Declared unconstitutional. (Para 106)
       (w) Information Technology Act, 2000 – Section 69A and Rules 2(g), 3, 4, 5, 6, 7, 8, 9, 10, 14 and 16 of Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 – Section 69A unlike Section 66A is a narrowly drawn provision with several safeguards – Blocking can only be resorted to where necessary so to do – Such necessity must be relatable only to some of the subjects set out in Article 19(2) – Reasons have to be recorded in writing for such blocking assailable under Article 226 of the Constitution – Rules further providing for a hearing before the Committee – Merely because certain additional safeguards such as those found in Section 95 and 96 CrPC are not available does not make the Rules unconstitutional – Section 69A and Rules declared constitutional. (Para 109, 110, 111)
       (x) Information Technology Act, 2000 – Section 79 and Rule 3, Information Technology (Intermediary Guidelines) Rules, 2011 – Section 79 being an exemption provision is closely related to penal provisions including Section 69A – Intermediary applying its own mind to whether information should or should not be blocked noticeably absent in Section 69A read with 2009 Rules – Section 79(3)(b) providing for penalty to intermediary has to be read down to mean that the intermediary would be punishable only when he fails to expeditiously remove or disable access to that material even upon receiving actual knowledge of a court, by order, asking it to do so – Rule 3(2) and 3(4) are also be read down similarly subject to which the Rues 2011 are constitutional. (Para 116, 117, 118)
       Facts of the case:
       This batch of writ petitions 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.
       Finding of the Court:
       Section 66A of the IT Act, 2000 is unconstitutional.
       Result: Petitions disposed of.

Judgement Key Points

(!)

Judgment

R.F. Nariman, J.

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

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

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

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

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.

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

(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 sc

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2015 Supreme(SC) 236

Cases Referred (35)