[pic]REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL/CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO.167 OF 2012
SHREYA SINGHAL … PETITIONER
VERSUS
UNION OF INDIA … RESPONDENT
WITH
WRIT PETITION (CIVIL) NO.21 OF 2013
WRIT PETITION (CIVIL) NO.23 OF 2013
WRIT PETITION (CIVIL) NO. 97 OF 2013
WRIT PETITION (CRIMINAL) NO.199 OF 2013
WRIT PETITION (CIVIL) NO. 217 OF 2013
WRIT PETITION (CRIMINAL) NO.222 OF 2013
WRIT PETITION (CRIMINAL) NO.225 OF 2013
WRIT PETITION (CIVIL) NO.758 OF 2014
WRIT PETITION (CRIMINAL) NO.196 OF 2014
J U D G M E N T
R.F. NARIMAN, J.
1. This batch of writ petitions filed under Article 32 of the
Constitution of India raises very important and far-reaching questions
relatable primarily to the fundamental right of free speech and expression
guaranteed by Article 19(1)(a) of the Constitution of India. The immediate
cause for concern in these petitions is Section 66A of the Information
Technology Act of 2000. This Section was not in the Act as originally
enacted, but came into force by virtue of an Amendment Act of 2009 with
effect from 27.10.2009. Since all the arguments raised by several counsel
for the petitioners deal with the unconstitutionality of this Section it is
set out hereinbelow:
“66-A. Punishment for sending offensive messages through communication
service, etc.-Any person who sends, by means of a computer resource or a
communication device,-
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of
causing annoyance, inconvenience, danger, obstruction, insult, injury,
criminal intimidation, enmity, hatred or ill will, persistently by making
use of such computer resource or a communication device; or
(c) any electronic mail or electronic mail message for the purpose of
causing annoyance or inconvenience or to deceive or to mislead the
addressee or recipient about the origin of such messages,
shall be punishable with imprisonment for a term which may extend to three
years and with fine.
Explanation.- For the purposes of this section, terms “electronic mail” and
“electronic mail message” means a message or information created or
transmitted or received on a computer, computer system, computer resource
or communication device including attachments in text, image, audio, video
and any other electronic record, which may be transmitted with the
message.”[1]
2. A related challenge is also made to Section 69A introduced by the
same amendment which reads as follows:-
“69-A. Power to issue directions for blocking for public access of any
information through any computer resource.-(1) Where the Central Government
or any of its officers specially authorised by it in this behalf is
satisfied that it is necessary or expedient so to do, in the interest of
sovereignty and integrity of India, defence of India, security of the
State, friendly relations with foreign States or public order or for
preventing incitement to the commission of any cognizable offence relating
to above, it may subject to the provisions of sub-section (2), for reasons
to be recorded in writing, by order, direct any agency of the Government or
intermediary to block for access by the public or cause to be blocked for
access by the public any information generated, transmitted, received,
stored or hosted in any computer resource.
(2) The procedure and safeguards subject to which such blocking for access
by the public may be carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under
sub-section (1) shall be punished with an imprisonment for a term which may
extend to seven years and shall also be liable to fine.”
3. The Statement of Objects and Reasons appended to the Bill which
introduced the Amendment Act stated in paragraph 3 that:
“3. A rapid increase in the use of computer and internet has given rise to
new forms of crimes like publishing sexually explicit materials in
electronic form, video voyeurism and breach of confidentiality and leakage
of data by intermediary, e-commerce frauds like personation commonly known
as Phishing, identity theft and offensive messages through communication
services. So, penal provisions are required to be included in the
Information Technology Act, the Indian Penal code, the Indian Evidence Act
and the code of Criminal Procedure to prevent such crimes.”
4. The petitioners contend that the very basis of Section 66A – that it
has given rise to new forms of crimes – is incorrect, and that Sections 66B
to 67C and various Sections of the Indian Penal Code (which will be
referred to hereinafter) are good enough to deal with all these crimes.
5. The petitioners’ various counsel raised a large number of points as
to the constitutionality of Section 66A. According to them, first and
foremost Section 66A infringes the fundamental right to free speech and
expression and is not saved by any of the eight subjects covered in Article
19(2). According to them, the causing of annoyance, inconvenience, danger,
obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-
will are all outside the purview of Article 19(2). Further, in creating an
offence, Section 66A suffers from the vice of vagueness because unlike the
offence created by Section 66 of the same Act, none of the aforesaid terms
are even attempted to be defined and cannot be defined, the result being
that innocent persons are roped in as well as those who are not. Such
persons are not told clearly on which side of the line they fall; and it
would be open to the authorities to be as arbitrary and whimsical as they
like in booking such persons under the said Section. In fact, a large
number of innocent persons have been booked and many instances have been
given in the form of a note to the Court. The enforcement of the said
Section would really be an insidious form of censorship which impairs a
core value contained in Article 19(1)(a). In addition, the said Section
has a chilling effect on the freedom of speech and expression. Also, the
right of viewers is infringed as such chilling effect would not give them
the benefit of many shades of grey in terms of various points of view that
could be viewed over the internet.
The petitioners also contend that their rights under Articles 14 and 21 are
breached inasmuch there is no intelligible differentia between those who
use the internet and those who by words spoken or written use other mediums
of communication. To punish somebody because he uses a particular medium of
communication is itself a discriminatory object and would fall foul of
Article 14 in any case.
6. In reply, Mr. Tushar Mehta, learned Additional Solicitor General
defended the constitutionality of Section 66A. He argued that the
legislature is in the best position to understand and appreciate the needs
of the people. The Court will, therefore, interfere with the legislative
process only when a statute is clearly violative of the rights conferred on
the citizen under Part-III of the Constitution. There is a presumption in
favour of the constitutionality of an enactment. Further, the Court would
so construe a statute to make it workable and in doing so can read into it
or read down the provisions that are impugned. The Constitution does not
impose impossible standards of determining validity. Mere possibility of
abuse of a provision cannot be a ground to declare a provision invalid.
Loose language may have been used in Section 66A to deal with novel methods
of disturbing other people’s rights by using the internet as a tool to do
so. Further, vagueness is not a ground to declare a statute
unconstitutional if the statute is otherwise legislatively competent and
non-arbitrary. He cited a large number of judgments before us both from
this Court and from overseas to buttress his submissions.
Freedom of Speech and Expression
Article 19(1)(a) of the Constitution of India states as follows:
“Article 19. Protection of certain rights regarding freedom of speech, etc.-
(1) All citizens shall have the right-
(a) to freedom of speech and expression;”
7. Article 19(2) states:
“Article 19. Protection of certain rights regarding freedom of speech, etc.-
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of
any existing law, or prevent the State from making any law, in so far as
such law imposes reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the interests of the sovereignty and
integrity of India, the security of the State, friendly relations with
foreign States, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence.”
8. The Preamble of the Constitution of India inter alia speaks of
liberty of thought, expression, belief, faith and worship. It also says
that India is a sovereign democratic republic. It cannot be over emphasized
that when it comes to democracy, liberty of thought and expression is a
cardinal value that is of paramount significance under our constitutional
scheme.
9. Various judgments of this Court have referred to the importance of
freedom of speech and expression both from the point of view of the liberty
of the individual and from the point of view of our democratic form of
government. For example, in the early case of Romesh Thappar v. State of
Madras, [1950] S.C.R. 594 at 602, this Court stated that freedom of speech
lay at the foundation of all democratic organizations. In Sakal Papers (P)
Ltd. & Ors. v. Union of India, [1962] 3 S.C.R. 842 at 866, a Constitution
Bench of this Court said freedom of speech and expression of opinion is of
paramount importance under a democratic constitution which envisages
changes in the composition of legislatures and governments and must be
preserved. In a separate concurring judgment Beg,J. said, in Bennett
Coleman & Co. & Ors. v. Union of India & Ors., [1973] 2 S.C.R. 757 at 829,
that the freedom of speech and of the press is the Ark of the Covenant of
Democracy because public criticism is essential to the working of its
institutions.[2]
10. Equally, in S. Khushboo v. Kanniamal & Anr., (2010) 5 SCC 600 this
Court stated, in paragraph 45 that the importance of freedom of speech and
expression though not absolute was necessary as we need to tolerate
unpopular views. This right requires the free flow of opinions and ideas
essential to sustain the collective life of the citizenry. While an
informed citizenry is a pre-condition for meaningful governance, the
culture of open dialogue is generally of great societal importance.
11. This last judgment is important in that it refers to the “market
place of ideas” concept that has permeated American Law. This was put in
the felicitous words of Justice Holmes in his famous dissent in Abrams v.
United States, 250 US 616 (1919), thus:
“But when men have realized that time has upset many fighting faiths, they
may come to believe even more than they believe the very foundations of
their own conduct that the ultimate good desired is better reached by free
trade in ideas-that the best test of truth is the power of thought to get
itself accepted in the competition of the market, and that truth is the
only ground upon which their wishes safely can be carried out. That at any
rate is the theory of our Constitution.”
12. Justice Brandeis in his famous concurring judgment in Whitney v.
California, 71 L. Ed. 1095 said:
“Those who won our independence believed that the final end of the state
was to make men free to develop their faculties, and that in its government
the deliberative forces should prevail over the arbitrary. They valued
liberty both as an end and as a means. They believed liberty to be the
secret of happiness and courage to be the secret of liberty. They believed
that freedom to think as you will and to speak as you think are means
indispensable to the discovery and spread of political truth; that without
free speech and assembly discussion would be futile; that with them,
discussion affords ordinarily adequate protection against the dissemination
of noxious doctrine; that the greatest menace to freedom is an inert
people; that public discussion is a political duty; and that this should be
a fundamental principle of the American government. They recognized the
risks to which all human institutions are subject. But they knew that order
cannot be secured merely through fear of punishment for its infraction;
that it is hazardous to discourage thought, hope and imagination; that fear
breeds repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to discuss
freely supposed grievances and proposed remedies; and that the fitting
remedy for evil counsels is good ones. Believing in the power of reason as
applied through public discussion, they eschewed silence coerced by law-the
argument of force in its worst form. Recognizing the occasional tyrannies
of governing majorities, they amended the Constitution so that free speech
and assembly should be guaranteed.
Fear of serious injury cannot alone justify suppression of free speech and
assembly. Men feared witches and burnt women. It is the function of speech
to free men from the bondage of irrational fears. To justify suppression of
free speech there must be reasonable ground to fear that serious evil will
result if free speech is practiced. There must be reasonable ground to
believe that the danger apprehended is imminent. There must be reasonable
ground to believe that the evil to be prevented is a serious one. Every
denunciation of existing law tends in some measure to increase the
probability that there will be violation of it. Condonation of a breach
enhances the probability. Expressions of approval add to the probability.
Propagation of the criminal state of mind by teaching syndicalism increases
it. Advocacy of lawbreaking heightens it still further. But even advocacy
of violation, however reprehensible morally, is not a justification for
denying free speech where the advocacy falls short of incitement and there
is nothing to indicate that the advocacy would be immediately acted on. The
wide difference between advocacy and incitement, between preparation and
attempt, between assembling and conspiracy, must be borne in mind. In order
to support a finding of clear and present danger it must be shown either
that immediate serious violence was to be expected or was advocated, or
that the past conduct furnished reason to believe that such advocacy was
then contemplated.” (at page 1105, 1106)
13. This leads us to a discussion of what is the content of the
expression “freedom of speech and expression”. There are three concepts
which are fundamental in understanding the reach of this most basic of
human rights. The first is discussion, the second is advocacy, and the
third is incitement. Mere discussion or even advocacy of a particular
cause howsoever unpopular is at the heart of Article 19(1)(a). It is only
when such discussion or advocacy reaches the level of incitement that
Article 19(2) kicks in.[3] It is at this stage that a law may be made
curtailing the speech or expression that leads inexorably to or tends to
cause public disorder or tends to cause or tends to affect the sovereignty
& integrity of India, the security of the State, friendly relations with
foreign States, etc. Why it is important to have these three concepts in
mind is because most of the arguments of both petitioners and respondents
tended to veer around the expression “public order”.
14. It is at this point that a word needs to be said about the use of
American judgments in the context of Article 19(1)(a). In virtually every
significant judgment of this Court, reference has been made to judgments
from across the Atlantic. Is it safe to do so?
15. It is significant to notice first the differences between the US
First Amendment and Article 19(1)(a) read with Article 19(2). The first
important difference is the absoluteness of the U.S. first Amendment –
Congress shall make no law which abridges the freedom of speech. Second,
whereas the U.S. First Amendment speaks of freedom of speech and of the
press, without any reference to “expression”, Article 19(1)(a) speaks of
freedom of speech and expression without any reference to “the press”.
Third, under the US Constitution, speech may be abridged, whereas under our
Constitution, reasonable restrictions may be imposed. Fourth, under our
Constitution such restrictions have to be in the interest of eight
designated subject matters – that is any law seeking to impose a
restriction on the freedom of speech can only pass muster if it is
proximately related to any of the eight subject matters set out in Article
19(2).
16. Insofar as the first apparent difference is concerned, the U.S.
Supreme Court has never given literal effect to the declaration that
Congress shall make no law abridging the freedom of speech. The approach
of the Court which is succinctly stated in one of the early U.S. Supreme
Court Judgments, continues even today. In Chaplinsky v. New Hampshire, 86
L. Ed. 1031, Justice Murphy who delivered the opinion of the Court put it
thus:-
“Allowing the broadest scope to the language and purpose of the Fourteenth
Amendment, it is well understood that the right of free speech is not
absolute at all times and under all circumstances. There are certain well-
defined and narrowly limited classes of speech, the prevention and
punishment of which has never been thought to raise any Constitutional
problem. These include the lewd and obscene, the profane, the libelous, and
the insulting or ‘fighting’ words-those which by their very utterance
inflict injury or tend to incite an immediate breach of the peace. It has
been well observed that such utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth
that any benefit that may be derived from them is clearly outweighed by the
social interest in order and morality. ‘Resort to epithets or personal
abuse is not in any proper sense communication of information or opinion
safeguarded by the Constitution, and its punishment as a criminal act would
raise no question under that instrument.’ Cantwell v. Connecticut, 310 U.S.
296, 309, 310, 60 S.Ct. 900, 906, 84 L.Ed.1213, 128 A.L.R. 1352.” (at
page 1035)
17. So far as the second apparent difference is concerned, the American
Supreme Court has included “expression” as part of freedom of speech and
this Court has included “the press” as being covered under Article
19(1)(a), so that, as a matter of judicial interpretation, both the US and
India protect the freedom of speech and expression as well as press
freedom. Insofar as abridgement and reasonable restrictions are concerned,
both the U.S. Supreme Court and this Court have held that a restriction in
order to be reasonable must be narrowly tailored or narrowly interpreted so
as to abridge or restrict only what is absolutely necessary. It is only
when it comes to the eight subject matters that there is a vast difference.
In the U.S., if there is a compelling necessity to achieve an important
governmental or societal goal, a law abridging freedom of speech may pass
muster. But in India, such law cannot pass muster if it is in the interest
of the general public. Such law has to be covered by one of the eight
subject matters set out under Article 19(2). If it does not, and is
outside the pale of 19(2), Indian courts will strike down such law.
18. Viewed from the above perspective, American judgments have great
persuasive value on the content of freedom of speech and expression and the
tests laid down for its infringement. It is only when it comes to sub-
serving the general public interest that there is the world of a
difference. This is perhaps why in Kameshwar Prasad & Ors. v. The State of
Bihar & Anr., 1962 Supp. (3) S.C.R. 369, this Court held:
“As regards these decisions of the American Courts, it should be borne in
mind that though the First Amendment to the Constitution of the United
State reading “Congress shall make no law…. abridging the freedom of
speech…” appears to confer no power on the Congress to impose any
restriction on the exercise of the guaranteed right, still it has always
been understood that the freedom guaranteed is subject to the police power
– the scope of which however has not been defined with precision or
uniformly. It is on the basis of the police power to abridge that freedom
that the constitutional validity of laws penalising libels, and those
relating to sedition, or to obscene publications etc., has been sustained.
The resultant flexibility of the restrictions that could be validly imposed
renders the American decisions inapplicable to and without much use for
resolving the questions arising under Art. 19(1) (a) or (b) of our
Constitution wherein the grounds on which limitations might be placed on
the guaranteed right are set out with definiteness and precision.” ( At
page 378)
19. But when it comes to understanding the impact and content of freedom
of speech, in Indian Express Newspapers (Bombay) Private Limited & Ors. v.
Union of India & Ors., (1985) 2 SCR 287, Venkataramiah,J. stated:
“While examining the constitutionality of a law which is alleged to
contravene Article 19 (1) (a) of the Constitution, we cannot, no doubt, be
solely guided by the decisions of the Supreme Court of the United States of
America. But in order to understand the basic principles of freedom of
speech and expression and the need for that freedom in a democratic
country, we may take them into consideration. The pattern of Article 19 (1)
(a) and of Article 19 (1) (g) of our constitution is different from the
pattern of the First Amendment to the American Constitution which is almost
absolute in its terms. The rights guaranteed under Article 19 (1) (a) and
Article 19 (1) (g) of the Constitution are to be read along with clauses
(2) and (6) of Article 19 which carve out areas in respect of which valid
legislation can be made.” (at page 324)
20. With these prefatory remarks, we will now go to the other aspects of
the challenge made in these writ petitions and argued before us.
A. Article 19(1)(a) –
Section 66A has been challenged on the ground that it casts the net very
wide – “all information” that is disseminated over the internet is included
within its reach. It will be useful to note that Section 2(v) of
Information Technology Act, 2000 defines information as follows:
“2. Definitions.-(1) In this Act, unless the context otherwise requires,-
(v) “Information” includes data, message, text, images, sound, voice,
codes, computer programmes, software and databases or micro film or
computer generated micro fiche.”
Two things will be noticed. The first is that the definition is an
inclusive one. Second, the definition does not refer to what the content
of information can be. In fact, it refers only to the medium through which
such information is disseminated. It is clear, therefore, that the
petitioners are correct in saying that the public’s right to know is
directly affected by Section 66A. Information of all kinds is roped in –
such information may have scientific, literary or artistic value, it may
refer to current events, it may be obscene or seditious. That such
information may cause annoyance or inconvenience to some is how the offence
is made out. It is clear that the right of the people to know – the market
place of ideas – which the internet provides to persons of all kinds is
what attracts Section 66A. That the information sent has to be annoying,
inconvenient, grossly offensive etc., also shows that no distinction is
made between mere discussion or advocacy of a particular point of view
which may be annoying or inconvenient or grossly offensive to some and
incitement by which such words lead to an imminent causal connection with
public disorder, security of State etc. The petitioners are right in
saying that Section 66A in creating an offence against persons who use the
internet and annoy or cause inconvenience to others very clearly affects
the freedom of speech and expression of the citizenry of India at large in
that such speech or expression is directly curbed by the creation of the
offence contained in Section 66A.
In this regard, the observations of Justice Jackson in American
Communications Association v. Douds, 94 L. Ed. 925 are apposite:
“Thought control is a copyright of totalitarianism, and we have no claim to
it. It is not the function of our Government to keep the citizen from
falling into error; it is the function of the citizen to keep the
Government from falling into error. We could justify any censorship only
when the censors are better shielded against error than the censored.”
Article 19(2)
One challenge to Section 66A made by the petitioners’ counsel is that the
offence created by the said Section has no proximate relation with any of
the eight subject matters contained in Article 19(2). We may incidentally
mention that the State has claimed that the said Section can be supported
under the heads of public order, defamation, incitement to an offence and
decency or morality.
21. Under our constitutional scheme, as stated earlier, it is not open to
the State to curtail freedom of speech to promote the general public
interest. In Sakal Papers (P) Ltd. & Ors. v. Union of India, [1962] 3
S.C.R. 842, this Court said:
“It may well be within the power of the State to place, in the interest of
the general public, restrictions upon the right of a citizen to carry on
business but it is not open to the State to achieve this object by directly
and immediately curtailing any other freedom of that citizen guaranteed by
the Constitution and which is not susceptible of abridgment on the same
grounds as are set out in clause (6) of Article 19. Therefore, the right of
freedom of speech cannot be taken away with the object of placing
restrictions on the business activities of a citizen. Freedom of speech can
be restricted only in the interests of the security of the State, friendly
relations with foreign State, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence. It
cannot, like the freedom to carry on business, be curtailed in the interest
of the general public. If a law directly affecting it is challenged, it is
no answer that the restrictions enacted by it are justifiable under clauses
(3) to (6). For, the scheme of Article 19 is to enumerate different
freedoms separately and then to specify the extent of restrictions to which
they may be subjected and the objects for securing which this could be
done. A citizen is entitled to enjoy each and every one of the freedoms
together and clause (1) does not prefer one freedom to another. That is the
plain meaning of this clause. It follows from this that the State cannot
make a law which directly restricts one freedom even for securing the
better enjoyment of another freedom. All the greater reason, therefore for
holding that the State cannot directly restrict one freedom by placing an
otherwise permissible restriction on another freedom.” (at page 863)
22. Before we come to each of these expressions, we must understand what
is meant by the expression “in the interests of”. In The Superintendent,
Central Prison, Fatehgarh v. Ram Manohar Lohia, [1960] 2 S.C.R. 821, this
Court laid down:
“We do not understand the observations of the Chief Justice to mean that
any remote or fanciful connection between the impugned Act and the public
order would be sufficient to sustain its validity. The learned Chief
Justice was only making a distinction between an Act which expressly and
directly purported to maintain public order and one which did not expressly
state the said purpose but left it to be implied there from; and between an
Act that directly maintained public order and that indirectly brought about
the same result. The distinction does not ignore the necessity for intimate
connection between the Act and the public order sought to be maintained by
the Act.” (at pages 834, 835)
“The restriction made “in the interests of public order” must also have
reasonable relation to the object to be achieved, i.e., the public order.
If the restriction has no proximate relationship to the achievement of
public order, it cannot be said that the restriction is a reasonable
restriction within the meaning of the said clause.” (at page 835)
“The decision, in our view, lays down the correct test. The limitation
imposed in the interests of public order to be a reasonable restriction,
should be one which has a proximate connection or nexus with public order,
but not one far-fetched, hypothetical or problematical or too remote in the
chain of its relation with the public order……….There is no proximate
or even foreseeable connection between such instigation and the public
order sought to be protected under section. We cannot accept the argument
of the learned Advocate General that instigation of a single individual not
to pay tax or dues is a spark which may in the long run ignite a
revolutionary movement destroying public order” (at page 836).
Reasonable Restrictions:
23. This Court has laid down what “reasonable restrictions” means in
several cases. In Chintaman Rao v. The State of Madhya Pradesh, [1950]
S.C.R. 759, this Court said:
“The phrase “reasonable restriction” connotes that the limitation imposed
on a person in enjoyment of the right should not be arbitrary or of an
excessive nature, beyond what is required in the interests of the public.
The word “reasonable” implies intelligent care and deliberation, that is,
the choice of a course which reason dictates. Legislation which arbitrarily
or excessively invades the right cannot be said to contain the quality of
reasonableness and unless it strikes a proper balance between the freedom
guaranteed in article 19(1)(g) and the social control permitted by clause
(6) of article 19, it must be held to be wanting in that quality.” (at
page 763)
24. In State of Madras v. V.G. Row, [1952] S.C.R. 597, this Court said:
“This Court had occasion in Dr. Khare’s case (1950) S.C.R. 519 to define
the scope of the judicial review under clause (5) of Article19 where the
phrase “imposing reasonable restriction on the exercise of the right” also
occurs and four out of the five Judges participating in the decision
expressed the view (the other Judge leaving the question open) that both
the substantive and the procedural aspects of the impugned restrictive law
should be examined from the point of view of reasonableness; that is to
say, the Court should consider not only factors such as the duration and
the extent of the restrictions, but also the circumstances under which and
the manner in which their imposition has been authorised. It is important
in this context to bear in mind that the test of reasonableness, where ever
prescribed, should be applied to each, individual statute impugned and no
abstract standard, or general pattern of reasonableness can be laid down as
applicable to all cases. The nature of the right alleged to have been
infringed, the underlying purpose of the restriction imposed, the extent
and urgency of the evil sought to be remedied thereby, the disproportion of
the imposition, the prevailing conditions at the time, should all enter
into the judicial verdict. In evaluating such elusive factors and forming
their own conception of what is reasonable, in all the circumstances of a
given case, it is inevitable that the social philosophy and the scale of
values of the judges participating in the decision should play an important
part, and the limit to their interference with legislative judgment in such
cases can only be dictated by their sense of responsibility and self-
restraint and the sobering reflection that the Constitution is meant not
only for people of their way of thinking but for all, and that the majority
of the elected representatives of the people have, in authorising the
imposition of the restrictions, considered them to be reasonable.” (at page
606-607)
25. Similarly, in Mohd. Faruk v. State of Madhya Pradesh & Ors., [1970] 1
S.C.R. 156, this Court said:
“The Court must in considering the validity of the impugned law imposing a
prohibition on the carrying on of a business or profession, attempt an
evaluation of its direct and immediate impact upon the fundamental rights
of the citizens affected thereby and the larger public interest sought to
be ensured in the light of the object sought to be achieved, the necessity
to restrict the citizen’s freedom, the inherent pernicious nature of the
act prohibited or its capacity or tendency to be harmful to the general
public, the possibility of achieving the object by imposing a less drastic
restraint, and in the absence of exceptional situations such as the
prevalence of a state of emergency-national or local-or the necessity to
maintain essential supplies, or the necessity to stop activities inherently
dangerous, the existence of a machinery to satisfy the administrative
authority that no case for imposing the restriction is made out or that a
less drastic restriction may ensure the object intended to be achieved.”
(at page 161)
26. In Dr. N. B. Khare v. State of Delhi, [1950] S.C.R. 519, a
Constitution Bench also spoke of reasonable restrictions when it comes to
procedure. It said:
“While the reasonableness of the restrictions has to be considered with
regard to the exercise of the right, it does not necessarily exclude from
the consideration of the Court the question of reasonableness of the
procedural part of the law. It is obvious that if the law prescribes five
years externment or ten years externment, the question whether such period
of externment is reasonable, being the substantive part, is necessarily for
the consideration of the court under clause (5). Similarly, if the law
provides the procedure under which the exercise of the right may be
restricted, the same is also for the consideration of the Court, as it has
to determine if the exercise of the right has been reasonably restricted.”
(at page 524)
27. It was argued by the learned Additional Solicitor General that a
relaxed standard of reasonableness of restriction should apply regard being
had to the fact that the medium of speech being the internet differs from
other mediums on several grounds. To appreciate the width and scope of his
submissions, we are setting out his written submission verbatim:
“(i) the reach of print media is restricted to one state or at the most
one country while internet has no boundaries and its reach is global;
(ii) the recipient of the free speech and expression used in a print media
can only be literate persons while internet can be accessed by literate and
illiterate both since one click is needed to download an objectionable post
or a video;
(iii) In case of televisions serials [except live shows] and movies, there
is a permitted pre- censorship’ which ensures right of viewers not to
receive any information which is dangerous to or not in conformity with the
social interest. While in the case of an internet, no such pre-censorship
is possible and each individual is publisher, printer, producer, director
and broadcaster of the content without any statutory regulation;
In case of print media or medium of television and films whatever is truly
recorded can only be published or broadcasted I televised I viewed. While
in case of an internet, morphing of images, change of voices and many other
technologically advance methods to create serious potential social disorder
can be applied.
By the medium of internet, rumors having a serious potential of creating a
serious social disorder can be spread to trillions of people without any
check which is not possible in case of other mediums.
In case of mediums like print media, television and films, it is broadly
not possible to invade privacy of unwilling persons. While in case of an
internet, it is very easy to invade upon the privacy of any individual and
thereby violating his right under Article 21 of the Constitution of India.
By its very nature, in the mediums like newspaper, magazine, television or
a movie, it is not possible to sexually harass someone, outrage the modesty
of anyone, use unacceptable filthy language and evoke communal frenzy which
would lead to serious social disorder. While in the case of an internet, it
is easily possible to do so by a mere click of a button without any
geographical limitations and almost in all cases while ensuring anonymity
of the offender.
By the very nature of the medium, the width and reach of internet is
manifold as against newspaper and films. The said mediums have inbuilt
limitations i.e. a person will have to buy / borrow a newspaper and / or
will have to go to a theater to watch a movie. For television also one
needs at least a room where a television is placed and can only watch those
channels which he has subscribed and that too only at a time where it is
being telecast. While in case of an internet a person abusing the internet,
can commit an offence at any place at the time of his choice and
maintaining his anonymity in almost all cases.
(ix) In case of other mediums, it is impossible to maintain anonymity as a
result of which speech ideal opinions films having serious potential of
creating a social disorder never gets generated since its origin is bound
to be known. While in case of an internet mostly its abuse takes place
under the garb of anonymity which can be unveiled only after thorough
investigation.
(x) In case of other mediums like newspapers, television or films, the
approach is always institutionalized approach governed by industry specific
ethical norms of self conduct. Each newspaper / magazine / movie production
house / TV Channel will have their own institutionalized policies in house
which would generally obviate any possibility of the medium being abused.
As against that use of internet is solely based upon individualistic
approach of each individual without any check, balance or regulatory
ethical norms for exercising freedom of speech and expression under Article
19[ 1] [a].
(xi) In the era limited to print media and cinematograph; or even in case
of publication through airwaves, the chances of abuse of freedom of
expression was less due to inherent infrastructural and logistical
constrains. In the case of said mediums, it was almost impossible for an
individual to create and publish an abusive content and make it available
to trillions of people. Whereas, in the present internet age the said
infrastructural and logistical constrains have disappeared as any
individual using even a smart mobile phone or a portable computer device
can create and publish abusive material on its own, without seeking help of
anyone else and make it available to trillions of people by just one
click.”
28. As stated, all the above factors may make a distinction between the
print and other media as opposed to the internet and the legislature may
well, therefore, provide for separate offences so far as free speech over
the internet is concerned. There is, therefore, an intelligible
differentia having a rational relation to the object sought to be achieved
– that there can be creation of offences which are applied to free speech
over the internet alone as opposed to other mediums of communication.
Thus, an Article 14 challenge has been repelled by us on this ground later
in this judgment. But we do not find anything in the features outlined by
the learned Additional Solicitor General to relax the Court’s scrutiny of
the curbing of the content of free speech over the internet. While it may
be possible to narrowly draw a Section creating a new offence, such as
Section 69A for instance, relatable only to speech over the internet, yet
the validity of such a law will have to be tested on the touchstone of the
tests already indicated above.
29. In fact, this aspect was considered in Secretary Ministry of
Information & Broadcasting, Government of India v. Cricket Association of
Bengal, (1995) 2 SCC 161 in para 37, where the following question was
posed:
“The next question which is required to be answered is whether there is any
distinction between the freedom of the print media and that of the
electronic media such as radio and television, and if so, whether it
necessitates more restrictions on the latter media.”
This question was answered in para 78 thus:
“There is no doubt that since the airwaves/frequencies are a public
property and are also limited, they have to be used in the best interest of
the society and this can be done either by a central authority by
establishing its own broadcasting network or regulating the grant of
licences to other agencies, including the private agencies. What is
further, the electronic media is the most powerful media both because of
its audio-visual impact and its widest reach covering the section of the
society where the print media does not reach. The right to use the airwaves
and the content of the programmes, therefore, needs regulation for
balancing it and as well as to prevent monopoly of information and views
relayed, which is a potential danger flowing from the concentration of the
right to broadcast/telecast in the hands either of a central agency or of
few private affluent broadcasters. That is why the need to have a central
agency representative of all sections of the society free from control both
of the Government and the dominant influential sections of the society.
This is not disputed. But to contend that on that account the restrictions
to be imposed on the right under Article 19(1)(a) should be in addition to
those permissible under Article 19(2) and dictated by the use of public
resources in the best interests of the society at large, is to misconceive
both the content of the freedom of speech and expression and the problems
posed by the element of public property in, and the alleged scarcity of,
the frequencies as well as by the wider reach of the media. If the right to
freedom of speech and expression includes the right to disseminate
information to as wide a section of the population as is possible, the
access which enables the right to be so exercised is also an integral part
of the said right. The wider range of circulation of information or its
greater impact cannot restrict the content of the right nor can it justify
its denial. The virtues of the electronic media cannot become its enemies.
It may warrant a greater regulation over licensing and control and
vigilance on the content of the programme telecast. However, this control
can only be exercised within the framework of Article 19(2) and the
dictates of public interests. To plead for other grounds is to plead for
unconstitutional measures. It is further difficult to appreciate such
contention on the part of the Government in this country when they have a
complete control over the frequencies and the content of the programme to
be telecast. They control the sole agency of telecasting. They are also
armed with the provisions of Article 19(2) and the powers of pre-censorship
under the Cinematograph Act and Rules. The only limitation on the said
right is, therefore, the limitation of resources and the need to use them
for the benefit of all. When, however, there are surplus or unlimited
resources and the public interests so demand or in any case do not prevent
telecasting, the validity of the argument based on limitation of resources
disappears. It is true that to own a frequency for the purposes of
broadcasting is a costly affair and even when there are surplus or
unlimited frequencies, only the affluent few will own them and will be in a
position to use it to subserve their own interest by manipulating news and
views. That also poses a danger to the freedom of speech and expression of
the have-nots by denying them the truthful information on all sides of an
issue which is so necessary to form a sound view on any subject. That is
why the doctrine of fairness has been evolved in the US in the context of
the private broadcasters licensed to share the limited frequencies with the
central agency like the FCC to regulate the programming. But this
phenomenon occurs even in the case of the print media of all the countries.
Hence the body like the Press Council of India which is empowered to
enforce, however imperfectly, the right to reply. The print media further
enjoys as in our country, freedom from pre-censorship unlike the electronic
media.”
Public Order
30. In Article 19(2) (as it originally stood) this sub-head was
conspicuously absent. Because of its absence, challenges made to an order
made under Section 7 of the Punjab Maintenance of Public Order Act and to
an order made under Section 9 (1)(a) of the Madras Maintenance of Public
Order Act were allowed in two early judgments by this Court. Thus in
Romesh Thappar v. State of Madras, [1950] S.C.R. 594, this Court held that
an order made under Section 9(1)(a) of the Madras Maintenance of Public
Order Act (XXIII of 1949) was unconstitutional and void in that it could
not be justified as a measure connected with security of the State. While
dealing with the expression “public order”, this Court held that “public
order” is an expression which signifies a state of tranquility which
prevails amongst the members of a political society as a result of the
internal regulations enforced by the Government which they have
established.
31. Similarly, in Brij Bhushan & Anr. v. State of Delhi, [1950] S.C.R.
605, an order made under Section 7 of the East Punjab Public Safety Act,
1949, was held to be unconstitutional and void for the self-same reason.
32. As an aftermath of these judgments, the Constitution First Amendment
added the words “public order” to Article 19(2).
33. In Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia,
[1960] 2 S.C.R. 821, this Court held that public order is synonymous with
public safety and tranquility; it is the absence of disorder involving
breaches of local significance in contradistinction to national upheavals,
such as revolution, civil strife, war, affecting the security of the State.
This definition was further refined in Dr. Ram Manohar Lohia v. State of
Bihar & Ors., [1966] 1 S.C.R. 709, where this Court held:
“It will thus appear that just as “public order” in the rulings of this
Court (earlier cited) was said to comprehend disorders of less gravity than
those affecting “security of State”, “law and order” also comprehends
disorders of less gravity than those affecting “public order”. One has to
imagine three concentric circles. Law and order represents the largest
circle within which is the next circle representing public order and the
smallest circle represents security of State. It is then easy to see that
an act may affect law and order but not public order just as an act may
affect public order but not security of the State.” (at page 746)
34. In Arun Ghosh v. State of West Bengal, [1970] 3 S.C.R. 288, Ram
Manohar Lohia’s case was referred to with approval in the following terms:
“In Dr. Ram Manohar Lohia’s case this Court pointed out the difference
between maintenance of law and order and its disturbance and the
maintenance of public order and its disturbance. Public order was said to
embrace more of the community than law and order. Public order is the even
tempo of the life of the community taking the country as a whole or even a
specified locality. Disturbance of public order is to be distinguished,
from acts directed against individuals which do not disturb the society to
the extent of causing a general disturbance of public tranquility. It is
the degree of disturbance and its effect upon the life of the community in
a locality which determines whether the disturbance amounts only to a
breach of law and order. Take for instance, a man stabs another. People may
be shocked and even disturbed, but the life of the community keeps moving
at an even tempo, however much one may dislike the act. Take another case
of a town where there is communal tension. A man stabs a member of the
other community. This is an act of a very different sort. Its implications
are deeper and it affects the even tempo of life and public order is
jeopardized because the repercussions of the act embrace large Sections of
the community and incite them to make further breaches of the law and order
and to subvert the public order. An act by itself is not determinant of its
own gravity. In its quality it may not differ from another but in its
potentiality it may be very different. Take the case of assault on girls. A
guest at a hotel may kiss or make advances to half a dozen chamber maids.
He may annoy them and also the management but he does not cause disturbance
of public order. He may even have a fracas with the friends of one of the
girls but even then it would be a case of breach of law and order only.
Take another case of a man who molests women in lonely places. As a result
of his activities girls going to colleges and schools are in constant
danger and fear. Women going for their ordinary business are afraid of
being waylaid and assaulted. The activity of this man in its essential
quality is not different from the act of the other man but in its
potentiality and in its effect upon the public tranquility there is a vast
difference. The act of the man who molests the girls in lonely places
causes a disturbance in the even tempo of living which is the first
requirement of public order. He disturbs the society and the community. His
act makes all the women apprehensive of their honour and he can be said to
be causing disturbance of public order and not merely committing individual
actions which may be taken note of by the criminal prosecution agencies. It
means therefore that the question whether a man has only committed a breach
of law and order or has acted in a manner likely to cause a disturbance of
the public order is a question of degree and the extent of the reach of the
act upon the society. The French distinguish law and order and public order
by designating the latter as order publique. The latter expression has been
recognised as meaning something more than ordinary maintenance of law and
order. Justice Ramaswami in Writ Petition No. 179 of 1968 drew a line of
demarcation between the serious and aggravated forms of breaches of public
order which affect the community or endanger the public interest at large
from minor breaches of peace which do not affect the public at large. He
drew an analogy between public and private crimes. The analogy is useful
but not to be pushed too far. A large number of acts directed against
persons or individuals may total up into a breach of public order. In Dr.
Ram Manohar Lohia’s case examples were given by Sarkar, and Hidayatullah,
JJ. They show how similar acts in different contexts affect differently law
and order on the one hand and public order on the other. It is always a
question of degree of the harm and its effect upon the community. The
question to ask is: Does it lead to disturbance of the current of life of
the community so as to amount to a disturbance of the public order or does
it affect merely an individual leaving the tranquility of the society
undisturbed? This question has to be faced in every case on facts. There is
no formula by which one case can be distinguished from another.” (at pages
290 and 291).
35. This decision lays down the test that has to be formulated in all
these cases. We have to ask ourselves the question: does a particular act
lead to disturbance of the current life of the community or does it merely
affect an individual leaving the tranquility of society undisturbed? Going
by this test, it is clear that Section 66A is intended to punish any person
who uses the internet to disseminate any information that falls within the
sub-clauses of Section 66A. It will be immediately noticed that the
recipient of the written word that is sent by the person who is accused of
the offence is not of any importance so far as this Section is concerned.
(Save and except where under sub-clause (c) the addressee or recipient is
deceived or misled about the origin of a particular message.) It is clear,
therefore, that the information that is disseminated may be to one
individual or several individuals. The Section makes no distinction
between mass dissemination and dissemination to one person. Further, the
Section does not require that such message should have a clear tendency to
disrupt public order. Such message need not have any potential which could
disturb the community at large. The nexus between the message and action
that may be taken based on the message is conspicuously absent – there is
no ingredient in this offence of inciting anybody to do anything which a
reasonable man would then say would have the tendency of being an immediate
threat to public safety or tranquility. On all these counts, it is clear
that the Section has no proximate relationship to public order whatsoever.
The example of a guest at a hotel `annoying’ girls is telling – this Court
has held that mere `annoyance’ need not cause disturbance of public order.
Under Section 66A, the offence is complete by sending a message for the
purpose of causing annoyance, either `persistently’ or otherwise without in
any manner impacting public order.
Clear and present danger – tendency to affect.
36. It will be remembered that Justice Holmes in Schenck v. United
States, 63 L. Ed. 470 enunciated the clear and present danger test as
follows:
“…The most stringent protection of free speech would not protect a man in
falsely shouting fire in a theatre and causing a panic. It does not even
protect a man from an injunction against uttering words that may have all
the effect of force. Gompers v. Buck’s Stove & Range Co., 221 U. S. 418,
439, 31 Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874. The question
in every case is whether the words used are used in such circumstances and
are of such a nature as to create a clear and present danger that they will
bring about the substantive evils that Congress has a right to prevent. It
is a question of proximity and degree.” (At page 473, 474)
37. This was further refined in Abrams v. Unites States 250 U.S. 616
(1919), this time in a Holmesian dissent, to be clear and imminent danger.
However, in most of the subsequent judgments of the U.S. Supreme Court, the
test has been understood to mean to be “clear and present danger”. The test
of “clear and present danger” has been used by the U.S. Supreme Court in
many varying situations and has been adjusted according to varying fact
situations. It appears to have been repeatedly applied, see- Terminiello
v. City of Chicago 93 L. Ed. 1131 (1949) at page 1134-1135, Brandenburg v.
Ohio 23 L. Ed. 2d 430 (1969) at 434-435 & 436, Virginia v. Black 155 L. Ed.
2d 535 (2003) at page 551, 552 and 553[4].
38. We have echoes of it in our law as well S. Rangarajan v. P. Jagjivan
& Ors., (1989) 2 SCC 574 at paragraph 45:
“45. The problem of defining the area of freedom of expression when it
appears to conflict with the various social interests enumerated under
Article 19(2) may briefly be touched upon here. There does indeed have to
be a compromise between the interest of freedom of expression and special
interests. But we cannot simply balance the two interests as if they are of
equal weight. Our commitment of freedom of expression demands that it
cannot be suppressed unless the situations created by allowing the freedom
are pressing and the community interest is endangered. The anticipated
danger should not be remote, conjectural or far-fetched. It should have
proximate and direct nexus with the expression. The expression of thought
should be intrinsically dangerous to the public interest. In other words,
the expression should be inseparably locked up with the action contemplated
like the equivalent of a “spark in a powder keg”.
39. This Court has used the expression “tendency” to a particular act.
Thus, in State of Bihar v. Shailabala Devi, [1952] S.C.R. 654, an early
decision of this Court said that an article, in order to be banned must
have a tendency to excite persons to acts of violence (at page 662-663).
The test laid down in the said decision was that the article should be
considered as a whole in a fair free liberal spirit and then it must be
decided what effect it would have on the mind of a reasonable reader. (at
pages 664-665)
40. In Ramji Lal Modi v. The State of U.P., [1957] S.C.R. 860 at page
867, this court upheld Section 295A of the Indian Penal Code only because
it was read down to mean that aggravated forms of insults to religion must
have a tendency to disrupt public order. Similarly, in Kedar Nath Singh v.
State of Bihar, 1962 Supp. (2) S.C.R. 769, Section 124A of the Indian Penal
Code was upheld by construing it narrowly and stating that the offence
would only be complete if the words complained of have a tendency of
creating public disorder by violence. It was added that merely creating
disaffection or creating feelings of enmity in certain people was not good
enough or else it would violate the fundamental right of free speech under
Article 19(1)(a). Again, in Dr. Ramesh Yeshwant Prabhoo v. Prabhakar
Kashinath Kunte & Ors., 1996 (1) SCC 130, Section 123 (3A) of the
Representation of People Act was upheld only if the enmity or hatred that
was spoken about in the Section would tend to create immediate public
disorder and not otherwise.
41. Viewed at either by the standpoint of the clear and present danger
test or the tendency to create public disorder, Section 66A would not pass
muster as it has no element of any tendency to create public disorder which
ought to be an essential ingredient of the offence which it creates.
Defamation
42. Defamation is defined in Section 499 of the Penal Code as follows:
“499. Defamation.-Whoever, by words either spoken or intended to be read,
or by signs or by visible representations, makes or publishes any
imputation concerning any person intending to harm, or knowing or having
reason to believe that such imputation will harm, the reputation of such
person, is said, except in the cases hereinafter excepted, to defame that
person.
Explanation 1.-It may amount to defamation to impute anything to a deceased
person, if the imputation would harm the reputation of that person if
living, and is intended to be hurtful to the feelings of his family or
other near relatives.
Explanation 2.-It may amount to defamation to make an imputation concerning
a company or an association or collection of persons as such.
Explanation 3.-An imputation in the form of an alternative or expressed
ironically, may amount to defamation.
Explanation 4.-No imputation is said to harm a person’s reputation, unless
that imputation directly or indirectly, in the estimation of others, lowers
the moral or intellectual character of that person, or lowers the character
of that person in respect of his caste or of his calling, or lowers the
credit of that person, or causes it to be believed that the body of that
person is in a loathsome state, or in a state generally considered as
disgraceful.”
43. It will be noticed that for something to be defamatory, injury to
reputation is a basic ingredient. Section 66A does not concern itself with
injury to reputation. Something may be grossly offensive and may annoy or
be inconvenient to somebody without at all affecting his reputation. It is
clear therefore that the Section is not aimed at defamatory statements at
all.
Incitement to an offence:
44. Equally, Section 66A has no proximate connection with incitement to
commit an offence. Firstly, the information disseminated over the
internet need not be information which “incites” anybody at all. Written
words may be sent that may be purely in the realm of “discussion” or
“advocacy” of a “particular point of view”. Further, the mere causing of
annoyance, inconvenience, danger etc., or being grossly offensive or having
a menacing character are not offences under the Penal Code at all. They
may be ingredients of certain offences under the Penal Code but are not
offences in themselves. For these reasons, Section 66A has nothing to do
with “incitement to an offence”. As Section 66A severely curtails
information that may be sent on the internet based on whether it is grossly
offensive, annoying, inconvenient, etc. and being unrelated to any of the
eight subject matters under Article 19(2) must, therefore, fall foul of
Article 19(1)(a), and not being saved under Article 19(2), is declared as
unconstitutional.
Decency or Morality
45. This Court in Ranjit Udeshi v. State of Maharashtra [1965] 1 S.C.R.
65 took a rather restrictive view of