Judges: Jasti Chelameswar and Rohinton Fali Nariman, JJ.

Facts:

The present writ petitions have been filed under Article 32 of the Constitution of India for challenging the validity of Sections 66A and 69A and 79 of the Information Technology Act, 2000 (IT Act). This Section was not in the Act as originally enacted, but came into force by virtue of an Amendment Act of 2009 with effect from 27.10.2009. Alongwith that the Petitioners has challenged Section 118(d) of the Kerala Police Act also.

Issues:

(i) Whether Section 66A of IT Act is Violative of Article 19(1)(a) of Constitution of India? 

(ii) Whether Sections 69A and 79 of IT Act are Constitutionally valid?

(iii) Whether Section 118(d) of the Kerala Police Act is liable to be struck down?

Law:

Information Technology Act of 2000 - Section 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.

Information Technology Act of 2000 - Section 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.

Information Technology Act of 2000 - Section 2(v) - Information - includes data, message, text, images, sound, voice, codes, computer programmes, software and data bases or micro film or computer generated micro fiche

Contentions of Petitioners:

(i) Section 66A of IT Act, 2000 infringes the fundamental right to free speech and expression and is not saved by any of the eight subjects covered in Article 19(2) of Constitution as 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) of Constitution.

(ii) Section 66A of IT Act, 2000 is vague because none of the term provided in Act has been defined.

(iii) The enforcement of the Section 66A of IT Act, 2000 would be an insidious form of censorship which impairs a core value contained in Article 19(1)(a) of Constitution.

(iv) Section 66A of IT Act, 2000 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.

(v) The rights under Articles 14 and 21 of Constitution are breached as 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 of Constitution in any case.

Contentions of Respondents:

(i) The Court will 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.

(ii) 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.

(iii) Vagueness is not a ground to declare a statute unconstitutional if the statute is otherwise legislatively competent and non-arbitrary.

Analysis

Section 66A of IT Act and Article 19(1)(a) of Constitution

Freedom of Speech and Expression

(i) There are three concepts which are fundamental in understanding the reach of "freedom of speech and expression". The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is within the ambit of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc.

"Information" as per Section 2(v) of IT Act - Scope of

(i) So far as definition of "Information" provided in IT Act, 2000 is concerned, there are two things which need to 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. It refers only to the medium through which such information is disseminated. Therefore, the public's right to know is directly affected by Section 66A of IT Act, 2000.

(ii) Also, 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. Such information may cause annoyance or inconvenience to some and that is how the offence is made out. Further, 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.

Proximity of Section 66A with eight subjects contained in Article 19(2) of Constitution

Reasonable Restrictions:

(i) In Chintaman Rao v. The State of Madhya Pradesh MANU/SC/0008/1950, this Court said that 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.

(ii) There is a clear distinction between the print and other media as opposed to the internet. 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

Public Order

(i) The test is to ask: 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 of IT Act, 2000 is intended to punish any person who uses the internet to disseminate any information that falls within the sub-clauses of Section 66A of IT Act, 2000. The recipient of the written word is not of any importance so far as this Section is concerned. 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.

Clear and present danger-tendency to affect

(i) Viewed at either by the standpoint of the clear and present danger test or the tendency to create public disorder, Section 66A of IT Act, 2000 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

(i) For something to be defamatory, injury to reputation is a basic ingredient. Section 66A of IT Act, 2000 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

(i) Section 66A of IT Act, 2000 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

(i) Section 66A of IT Act, 2000 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 of IT Act, 2000.

Vagueness

(i) It will be clear that in all computer related offences that are spoken of by Section 66 of IT Act, 2000, 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 of IT Act, 2000.

(ii) 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.

(iii) Quite apart from this, 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.

(iv) Thus, it is clear that Section 66A of IT Act, 2000 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

(i) Section 66A of IT Act, 2000 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. Therefore, the Section is unconstitutional as 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

(i) If Section 66A is otherwise invalid, it cannot be saved by an assurance from the administration that it will be administered in a reasonable manner. Governments may come and Governments may go but Section 66A of IT Act, 2000 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 of IT Act, 2000 must be judged on its own merits without any reference to how well it may be administered.

Severability:

(i) 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 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. Therefore, no part of Section 66A is severable and the provision as a whole must be declared unconstitutional.

Article 14 of the Constitution

(i) It has been 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). However, so far as discrimination under Article 14 of Constitution is concerned, it could not be said 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. 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. Therefore, the challenge on the ground of Article 14 must fail.

Thus, Section 66A of IT Act, 2000 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 citizen of India at large and the same is directly curbed by the creation of the offence contained in Section 66A.

Validity of Section 118 of the Kerala Police Act.

(i) 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.

Validity of Section 69A of IT Act, 2000 and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009

(i) 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.

(ii) 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.

(iii) 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

(i) Section 79 is an exemption provision. Being an exemption provision, it is closely related to provisions which provide for offences including Section 69A. Further, 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).

(ii)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.

Conclusion

(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) and not saved by Article 19(2).

All the writ petitions are disposed in the above terms.