# ""' v. UNION OF INDIA

- **Citation:** [2015] 5 S.C.R. 963
- **Court:** Supreme Court of India
- **Decided:** 2015-03-24
- **Bench:** J. Chelameswar, R. F. Nariman
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-union-of-india-30862
- **Pages:** 112

## Headnote

• Information Technology Act, 2000:
s. 66A - Constitutional validity of - Held: s. 66A is violative c
of Article 19(1)(a) and is not saved under Article 19(2) - It
arbitrarily, excessively and disproportionately invades the
right of free speech and upsets the balance between such
rights and the reasonable restrictions imposed thereupon -
the expressions used in s. 66A are open ended, vague and D
undefined - The reach of the section is such that it has a
chilling effect on free speech and thus suffers from the vice
. of overbreadth - Therefore, s. 66A as a whole is declared
unconstitutional - Constitution of India, 1950 -Art. 19(1) (a) E
and 19(2).
s. 66A - Whether constitutionally invalid on the touchstone
of Art. 14 of the Constitution - Held: There is an intelligible
differentia between speech on the internet and other
mediums of communication - Hence s. 66A is not violative F
of Art. 14 - Constitution oflndia, 1950-Art. 14.
s. 69A and Information Technology (Procedure and
Safeguards for Blocking for Access of Information by Public) G
Rules, 2009 - Constitutional validity of- Held: s. 69A as well
as the Rules are constitutionally valid - s. 69A is a narrowly
drawn provision with several safeguards under the Rules -
Merely absence of certain additional safeguards as provided
ulss. 95 and 96 Cr.P. C. does not make the Rules H
963
964
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A constitutionally infirm - Information Technology (Procedure
and Safeguards for Blocking for Access of Information by
Public) Rules, 2009- Code of Criminal Procedure, 1973ss. 95 and 96.
B s. 79 and Information Technology (Intermediary Guidelines)
Rules, 2011- Constitutional validity of- Held: s. 79 is valid,
subject to s. 79(3)(b) being read down to mean that an
intermediary upon receiving actual knowledge from a court
order or on being modified by the appropriate Government
C or its agency that unlawful acts re/atab/e to article 19(2) are
going to be committed, and then fails to expeditiously remove
or disable access to such material - Similarly the Rules are
valid, subject tor. 3(4) being read down in the same manner
as s. 79(3)(b) - Information Technology (Intermediary
D Guidelines) Rules, 2011- r. 3(4).
Kera/a Police Act, 1960 :
s. 118 - Legislative competence of- Challenged - Held:
E The Act as a whole ands. 118 as part thereof falls in pith and
substance within Entry 2 List II of Seventh Schedule of the
Constitution - Even otherwise, the penalty created for
causing annoyance in an indecent manner in pith and
substance would fall within Entry 1 List Ill and would thus be
F within the competence of the State Legislature - Constitution
of India, 1950- Seventh schedule, List II, Entry 2; List Ill Entry
1 - Doctrine of Pith and Substance.
s. 118 - Constitutional validity of - Held: s. 118 suffers from
G the vice of vagueness and overbreadth - Thus violates Art.
19(1 )(a) and since not saved under any of the subject matters
contained in Art. 19(2), hence is unconstitutional.
Statutes - Challenge to the vires of - Ground for - Held:
H Possibility of abuse of a statute is not a ground to test its
SHREYASINGHALv. UNION OF INDIA
965
validity, if the statute is otherwise valid.
A
Doctrine of Severability -Applicability of- Discussed.
Words and Phrases:
'Reasonable restrictions' - Meaning of, in the context of Art.
B
19(2) of the Constitution.
Disposing of the writ petitions, the Court
HELD: 1. When it comes to democracy, liberty of c
thought and expression is a cardinal value that is of
paramount significance under the constitutional
scheme. There are three concepts which are
fundamental in understanding the reach of this most
basic of human rights i.e. "freedom of speech and o
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 it is at the heart of Article 19(1)(a). It is only
when such discussion or advocacy reaches the level of E
incitement that A

## Text

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[2015] 5 S.C.R. 963
SHREYA SINGHAL
A
....... .,.....,.""'-..
v.
UNION OF INDIA
(Writ Petition (Criminal) No. 167 of2012 etc.)
B
MARCH 24, 2015
[J. CHELAMESWAR AND R. F. NARIMAN, JJ.]
• Information Technology Act, 2000:
s. 66A - Constitutional validity of - Held: s. 66A is violative c
of Article 19(1)(a) and is not saved under Article 19(2) - It
arbitrarily, excessively and disproportionately invades the
right of free speech and upsets the balance between such
rights and the reasonable restrictions imposed thereupon -
the expressions used in s. 66A are open ended, vague and D
undefined - The reach of the section is such that it has a
chilling effect on free speech and thus suffers from the vice
. of overbreadth - Therefore, s. 66A as a whole is declared
unconstitutional - Constitution of India, 1950 -Art. 19(1) (a) E
and 19(2).
s. 66A - Whether constitutionally invalid on the touchstone
of Art. 14 of the Constitution - Held: There is an intelligible
differentia between speech on the internet and other
mediums of communication - Hence s. 66A is not violative F
of Art. 14 - Constitution oflndia, 1950-Art. 14.
s. 69A and Information Technology (Procedure and
Safeguards for Blocking for Access of Information by Public) G
Rules, 2009 - Constitutional validity of- Held: s. 69A as well
as the Rules are constitutionally valid - s. 69A is a narrowly
drawn provision with several safeguards under the Rules -
Merely absence of certain additional safeguards as provided
ulss. 95 and 96 Cr.P. C. does not make the Rules H
963
964
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A constitutionally infirm - Information Technology (Procedure
and Safeguards for Blocking for Access of Information by
Public) Rules, 2009- Code of Criminal Procedure, 1973ss. 95 and 96.
B s. 79 and Information Technology (Intermediary Guidelines)
Rules, 2011- Constitutional validity of- Held: s. 79 is valid,
subject to s. 79(3)(b) being read down to mean that an
intermediary upon receiving actual knowledge from a court
order or on being modified by the appropriate Government
C or its agency that unlawful acts re/atab/e to article 19(2) are
going to be committed, and then fails to expeditiously remove
or disable access to such material - Similarly the Rules are
valid, subject tor. 3(4) being read down in the same manner
as s. 79(3)(b) - Information Technology (Intermediary
D Guidelines) Rules, 2011- r. 3(4).
Kera/a Police Act, 1960 :
s. 118 - Legislative competence of- Challenged - Held:
E The Act as a whole ands. 118 as part thereof falls in pith and
substance within Entry 2 List II of Seventh Schedule of the
Constitution - Even otherwise, the penalty created for
causing annoyance in an indecent manner in pith and
substance would fall within Entry 1 List Ill and would thus be
F within the competence of the State Legislature - Constitution
of India, 1950- Seventh schedule, List II, Entry 2; List Ill Entry
1 - Doctrine of Pith and Substance.
s. 118 - Constitutional validity of - Held: s. 118 suffers from
G the vice of vagueness and overbreadth - Thus violates Art.
19(1 )(a) and since not saved under any of the subject matters
contained in Art. 19(2), hence is unconstitutional.
Statutes - Challenge to the vires of - Ground for - Held:
H Possibility of abuse of a statute is not a ground to test its
SHREYASINGHALv. UNION OF INDIA
965
validity, if the statute is otherwise valid.
A
Doctrine of Severability -Applicability of- Discussed.
Words and Phrases:
'Reasonable restrictions' - Meaning of, in the context of Art.
B
19(2) of the Constitution.
Disposing of the writ petitions, the Court
HELD: 1. When it comes to democracy, liberty of c
thought and expression is a cardinal value that is of
paramount significance under the constitutional
scheme. There are three concepts which are
fundamental in understanding the reach of this most
basic of human rights i.e. "freedom of speech and o
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 it is at the heart of Article 19(1)(a). It is only
when such discussion or advocacy reaches the level of E
incitement that 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, F
friendly relations with foreign States, etc. (Paras 8 and
13] [987-F; 991-A-C]
Romesh Thapparv. State of Madras (1950) S.C.R. 594;
Sakal Papers (P) Ltd. & Ors. v. Union of India (1962) 3
G
S.C.R. 842; Bennett Coleman & Co. & Ors. v. Union of
'
India & Ors. (1973) 2 S.C.R. 757; S. Khushboo v.
Kanniamal & Anr. (2010) 5 SCC 600: 2010 (5)
SCR 322; Abrams v. United States 250 US 616 (1919)
- referred to.
H
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[2015] 5 S.C.R.
A
Whitney v. California 71 L. Ed. 1095; Chaplinsky v. New
Hampshire 86 L. Ed. 1031 - referred to.
2.1 Section 66A has been challenged on the
ground that it casts the net very wide - "all information"
B that is disseminated over the internet is included within
its reach. Section 2(v) of Information Technology Act, 2000
defines information. The definition is an inclusive one.
The definition does not refer to what the content of
information can be. In fact, it refers only to the medium
C through which such information is disseminated. It is
clear, therefore, that the public's right to know is directly
affected by Section 66A. [Para 201 [995-F-G; 996-8]
2.2 Information of all kinds is roped in s. 66A -
o 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
E - the market place of ideas -which the internet provides
to persons of all kinds is V)lhat 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
F 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 C'Onnection with public disorder, security of State
etc. Section 66A, in creating an offence against persons
G 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
H of the offence contained in Section 66A. [Para 20] [996C-F]
SHREYA SINGHAL v. UNION OF INDIA
967
American Communications Association v. Douds 94
A
L. Ed. 925 -
referred to.
3.1 Under the constitutional scheme, it is not open
to the State to curtail freedom of speech to promote the
general public interest. [Para 21] [997-D]
B
Sakal Papers (P) Ltd. & Ors. v. Union of India ( 1962) 3
S.C.R. 842 - relied on.
3.2 There is a distinction between the print and
other media as opposed to the internet, and the C
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 0
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. But this
would not relax the Court's scrutiny of the curbing of
the content of free speech over the internet. Therefore, E
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. [Paras 27 and 28] [1005D-F; 1002-E]
F
Secretary Ministry of Information & Broadcasting,
Government of India v. Cricket Association of Bengal
(1995) 2 sec 161: 1995 (1) SCR 1036 - relied on.
Superintendent, Central Prison, Fatehgarh v. Ram
Manohar Lohia
(1960) 2 S.C.R. 821; Chintaman Rao
v. The State of Madhya Pradesh (1950) S.C.R. 759;
State of Madras v. V. G. Row (1952) S.C.R. 597; Mohd.
Faruk v. State of Madhya Pradesh & Ors. (1970) 1
G
H
968
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[2015] 5 S.C.R.
A
S.C.R. 156; Dr. N. B. Khare v. State of Delhi (1950)
S.C.R. 519 - referred
to.
3.3 Section 66A is intended to punish any person
who uses the internet to disseminate any information
B that falls within the sub-clauses of Section 66A. 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
C is deceived or misled about the origin of a particular
message.). 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.
D 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
E 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
F whatsoever. [Para 35] [1002-D-H]
Arun Ghosh v. State of West Bengal (1970) 3 S.C.R.
288 - relied on.
Romesh Thappar v. State of Madras (1950) S.C.R. 594;
G
Brij Bhushan & Anr. v. State of Delhi (1950) S.C.R. 605;
Superintendent, Central Prison, Fatehgarh v. Ram
Manohar Lohia (1960) 2 S.C.R. 821; Dr. Ram
Manohar Lohia v. State of Bihar & Ors. (1966) 1 S.C.R.
709 - referred to.
H
SHREYA SINGHAL v. UNION OF INDIA
969
3.4 Viewed at either by the standpoint of the clear A
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. [Para 41] [1016-A]
B
S. Rangarajan v. P Jagjivan & Ors. (1989) 2 SCC 574:
1989 (2) SCR 204; State of Bihar v. Shailabala Devi
(1952) S.C.R. 654; Ramji Lal Modi v. The State of UP
(1957) S.C.R. 860; Kedar Nath Singh v. State of Bihar
C
1962 Supp. (2) S.C.R. 769; Dr. Ramesh Yeshwant
Prabhoo v. Prabhakar Kashinath Kunte & Ors. 1996
(1) SCC 130: 1995 (6) Suppl. SCR 371 - relied on.
Schenck v. United States 63 L. Ed. 470; Abrams v.
o
Unites States 250 U.S. 616 (1919); Terminiel/o v. City
of Chicago 93 L. Ed.1131 (1949); Brandenburg v. Ohio
23 L. Ed. 2d 430 (1969); Virginia v. Black 155 L. Ed.
2d 535 (2003) - referred to.
3.5 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
E
to somebody without at all affecting his reputation. It is F
clear therefore that the Section is not aimed at
defamatory statements at all. [Para 43] [1017-B-C]
3.6 Section 66A has also no proximate connection
with incitement to commit an offence. Firstly, the G
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, H
970
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A 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
B to do with "incitement to an offence". [Para 44] [1017-DF]
3.7 Section 66A cannot possibly be said to create
an offence which falls within the expression 'decency'
C 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. [Para 47] [1018-F-G]
D
3.8 The subject matters contained in Article 19(2)
cannot be read into s 66A in order to save the
constitutionality of the provision. When the legislature
intended to do so, it provided for some of the subject
matters contained in Article 19(2) in Section 69A. The
E Court would be doing complete violence to the language
of Section 66A, if it were to read into 66A, something
that was never intended to be read into it. [Para 48] [1018H; 1019-A-B]
F
3.9 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),
G and not being saved under Article 19(2), is declared as
unconstitutional. [Para 44] [1017-F-G]
4.1 The expressions used in Section 66A are
completely open-ended and undefined. Section 66 is in
H stark contrast to Section 66A. In all computer related
SHREYASINGHAL v. UNION OF INDIA
971
offences that are spoken of by Section 66, mens rea is A
an ingredient and the expression "dishonestly" and
"fraudulently" are defined with some degree of
specificity, unlike the expressions used in Section 66A.
The provisions contained in Sections 668 up to Section
678 also provide for various punishments for offences B
that are clearly made out. [Paras 69, 70 and 71] [1041-A,
E-F]
4.2
In the Penal Code, a number of the
expressions that occur in Section 66A occur in Section C
268. Whereas, in Section 268 the various expressions
used are ingredients for the offence of a public nuisance,
these ingredients now become offences in themselves
when it comes to Section 66A. Further, under Section
268, the person should be guilty of an act or omission D
which is illegal in nature - legal acts are not within its
net. A further ingredient is that injury, danger or
annoyance must be to the public in general. Injury,
danger or annoyance are not offences by themselves
howsoever made and to whomsoever made. [Paras 72 E
and 73] [1042-8, E-G]
4.3 The expression "annoyance" appears also in
Sections 294 and 510 of the IPC. In S9ction 294, the
annoyance that is spoken of is clearly defined - that is, it F
has to be caused by obscene utterances or acts. Equally,
under Section 510, the annoyance that is caused to a
person must only be by another person who is in a state
of intoxication and who annoys such person only in a
public place or in a place for which it is a trespass for G
him to enter. Such narrowly and closely defined contours
of offences made out under the Penal Code are
conspicuous by their absence in Section 66A which in
stark contrast uses completely open ended, undefined H
972
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[2015) 5 S.C.R.
A and vague language. [Paras 73 and 74] [1042-G; 1043-EF]
4.4 None of the expressions used in Section 66A
are defined. Even "criminal intimidation" is not defined
B -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 that Act.
[Para 75] [1043-G]
c
4.5 Every expression used is nebulous in
meaning. What may be offensive to one may not be
offensive to another. What may cause annoyance or
inconvenience to one may not cause annoyance or
inconvenience to another. Even the expression
o "persistently" is completely imprecise. There is no
demarcating line conveyed by any of these expressions
- and that is what renders the Section unconstitutionally
vague. [Para 76] [1044-A-C]
E
F
G
H
State of Madhya Pradesh v. Baldeo Prasad (1961) 1
S.C.R. 970; K.A. Abbas v. The Union of India & Anr.
(1971) 2 S.C.R. 446; Harakchand Ratanchand Banthia
& Ors. v.
Union of India & Ors. 1969 (2) SCC 166:
1970 (1) SCR 479; A.K. Roy& Ors. v. Unionoflndia &
Ors. (1982) 2 S.C.R. 272:1994 (2) SCR 375; Kartar
Singh v. State of Punjab (1994) 3 SCC 569:1994 (2)
SCR 375 - relied on.
Madan Singh v. State of Bihar(2004) 4 SCC 622: 2004
(3) SCR 692; Zameer Ahmed Latifur Rehman Sheikh
v. State of Maharashtra & Ors. (2010) 5 SCC 246: 2010
(4) SCR 1042; State of M.P v. Kedia Leather& Liquor
Limited (2003) 7 sec 389: 2003 (2) Suppl. SCR 727
- held inapplicable.
Musserv. Utah 92 L. Ed. 562; Winters v. People of State
SHREYASINGHAL v. UNION OF INDIA
973
of New York 92 L. Ed. 840; Burstyn v. Wilson 96 L. Ed.
A
1098; City of Chicago v. Morales et al, 527 U.S. 41
(1999); Grayned v. City of Rockford 33 L.Ed. 2d. 222;
Reno, Attorney General of the United States, et al. v.
American Civil
Liberties Union et al. 521 U.S. 844
(1997); Federal Communications Commission v. Fox
B
Television Stations132 S.Ct. 2307 - referred to.
Director of Public Prosecutions v. Collins (2006) 1 WLR
2223; Chambers v. Director of Public Prosecutions
(2013) 1 W.L.R. 1833 - referred to.
C
5. Information that may be grossly offensive or
which causes annoyance or inconvenience are
undefined terms which take into the net a very large
amount of protected and innocent speech. A person may o
discuss or even advocate by means of writing
disseminated over the internet information that may be
a view or point of view pertaining to governmental,
literary, scientific or other matters which may be
unpalatable to certain sections of society. It is obvious E
that an expression of a view on any matter may cause
annoyance, inconvenience or may be grossly offensive
to some. Section 66A is cast so widely that virtually any
opinion on any subject would be covered by it, as any
serious opinion dissenting with the mores of the day F
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. Section 66A is unconstitutional also on the
ground that it takes within its sweep protected speech G
and speech that is innocen.t in nature and is liable
therefore to be used in such a way as to have a chilling
effect on free speech and would, therefore, have to be
struck down on the ground of overbreadth. [Paras 83 H
and 90] [1049-G-H; 1050-A-E; 1054-H; 1055-A]
974
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[2015] 5 S.C.R.
A
Central Prison, Fatehgarh v. Ram Manohar Lohia
(1960) 2 S.C.R. 821; Kameshwar
Prasad & Ors. v.
The State of Bihar & Anr.1962 Supp. (3) S.C.R. 369followed.
B
R. Rajagopal v. State of T.N. (1994) 6 SCC 632: 1994
(4) Suppl. SCR 353; S. Khushboo v. Kanniammal
(2010) 5 SCC 600:2010 (5) SCR 322; Reno, Attorney
General of the United States, et al. v. American Civil
Liberties Union et al., 521 U.S. 844 (1997); The
C
Secretary, Ministry of
Information & Broadcasting v.
Cricket
Association of Bengal & Anr. (1995) SCC 2
161: 1995 (1) SCR 1036; KedarNath Singh v. State of
Bihar(1962) Supp. 2
S.C.R. 769
- relied on.
D
6. The possibility of abuse of a statute otherwise
valid, does not impart to it any element of invalidity. If
Section 66A is otherwise invalid, it cannot be saved by
an assurance from the State that it will be administered
in a reasonable manner. Governments may come and
E go but Section 66A goes on forever. An assurance from
the present Government even if carried out faithfully
would not bind any successor Government. It must,
therefore, be held that Section 66A must be judged on
its own merits without any reference to how well it may
F be administered. [Para 92] [1056-F-H]
7. 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
G subject matters is clear. Therefore, no part of Section 66A
is severable and the provision as a whole must be
declared unconstitutional. [Para 96] [1059-G-H]
Romesh Thapparv. The State of Madras (1950) S.C.R.
H
594 - relied on.
SHREYASINGHAL v. UNION OF INDIA
975
R. M.D. Chamarbaugwalla v. The Union of India (1957)
A
S.C.R. 930 - distinguished.
The Collector of Customs, Madras v. Nathe/la
Sampathu Chetty &Anr. (1962) 3 S.C.R. 786- referred
~.
B
8. It cannot be said that there is no intelligible
ft 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 C
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. o
Therefore, the challenge on the ground of Article 14 fails.
[Para 98] [1060-F-H; 1061-A]
9. Sections 95 and 96 of Cr.P.C. reveal a certain
degree of sensitivity to the fundamental right to free E
speech and expression. Again, for offences in the nature
of promoting enmity between different groups on
grounds of religion etc. or offences relatable to deliberate
and malicious acts intending to outrage religious feelings
or statements that create or promote enmity, hatred or F
ill-will between classes, can only be taken cognizance
of by courts with the previous sanction of the Central
Government or the State Government. This procedural
safeguard does not apply even when a similar offence
may be committed over the internet where a person is G
booked under Section 66A. However, since Section 66A
has been struck down on substantive grounds, the
procedural unreasonableness aspect of the Section,
need not be decided. [Paras 100and101] [1061-H; 1063E-G)
H
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[2015] 5 S.C.R.
A
10.1 A statute cannot be dissected and then
examined as to under what field of legislation each part
would separately fall. The Kerala Police Act as a whole
and Section 118 as part thereof, falls in pith and
substance within Entry 2 List II, notwithstanding any
B incidental encroachment that it may have made on any
other Entry in List I. Even otherwise, the penalty created
for causing annoyance in an indecent manner in pith and
substance would fall within Entry 1 List Ill which speaks
of criminal law and would thus be within the competence
C of the State Legislature in any case. [Paras 104 and 105]
[1065-B, G-H]
10.2 Unders.118(d) ofKerala Police Act, causing
annoyance in an indecent manner suffers from the same ·
D type of vagueness and over breadth, that led to the
invalidity of Section 66A of Information Technology Act
·and forthe reasons given for striking down Section 66A,
Section 11 S(d) also violates Article 19(1 )(a) and not being
a reasonable restriction on the said right and not being
E saved under any of the subject matters contained in
Article 19(2) is hereby declared to be unconstitutional.
[Para 106] [1066-A-C]
·
·
A.S. Krishna v. State of Madras (1957) S.C.R. 399 -
F
relied on.
11.1Section69A unlike Section 66Ais a narrowly
drawn provision with several safeguards; First and
foremost, blocking can only be resorted to where the
G 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
H
SHREYASINGHAL v. UNION OF INDIA
977
226 of the Constitution. [Para 109) [1068-F-G]
A
11.2 The Information Technology (Procedure and
Safeguards for Blocking for Access of Information by
Public) Rules, 2009 further provide for procedural
safeguards. It is only after these procedural safeguards B
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. Merely because certain
additional safeguards such as those found in Section
95 and 96 CrPC are not available, does not make the C
Rules constitutionally infirm. [Paras 109, 110 and 111)
[1068-H; 1069-A-C]
12.1 Section 79 is an exemption provision. Being
an exemption provision, it is closely related to provisions D
which provide for offences inch.iding Section 69A. Under
Section 69A blocking can take place only by a reasoned
order after complying with several procedural
· safeguards including a hearing to the originator and
intermediary. There are only two ways in which a E
blocking order can be passed - one by the Designated
Officer after complying with the 2009 Rules and the other
by the Designated Officer when he has to follow an order
passed by a competent court. The intermediary applying
its own mind to whether information should or should F
not be blocked, is noticeably absent in Section 69A read
with 2009 Rules. [Para 116) [1072-H; 1073-A-C]
12.2 Section 79{3)(b) has to be read down to mean
that the intermediary upon receiving actual knowledge G
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. Also, the Court order and/or the
H
978
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A 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, Section 79(3)(b) is not struck
B down. [Para 117] [1073-C-F]
12.3 It is a common practice worldwide, for
intermediaries to have user agreements containing what
is stated in Rule 3(2) of Information Technology
C (Intermediary Guidelines) Rules, 2011. However, Rule 3(4)
of the 2011 Rules needs to be read down in the same
manner as Section 79(3)(b) of the Information
Technology. The knowledge spoken of, in the said subrule must only be through the medium of a court order.
D Subjectto this, the 2011 Rules are valid. [Para 118] [1073G-H; 1074-A]
12.4 Section 79 is valid subjectto Section 79(3)(b)
being read down to mean that an intermediary upon
E 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, and then fails to expeditiously
remove or disable access to such material. Similarly, the
F 2011 Rules are valid subject to Rule 3 sub-rule (4) being
read down in the same manner ass. 79(3)(b). (Para 119]
[1074-D-F]
Case Law Reference
G [1950) S.C.R. 594
referred to.
Para 9
[1962) 3 S.C.R. 842
referred to.
Para 9
[1973] 2 S.C.R. 757
referred to.
Para 9
2010 (5) SCR 322
referred to.
Para 10
H 250 us 616 (1919)
referred to.
Para 11
SHREYASINGHAL v. UNION OF INDIA
979
71 L. Ed. 1095
referred to.
Para 12
A
86 L. Ed. 1031
referred to.
Para 16
1962 Supp. (3) S.C.R. 369
followed.
Para 18
[1985] 2 SCR 287
referred to.
Para 19
94 L. Ed. 925
referred to.
Para 20
[1962] 3 SCR 842
relied on.
Para 21
B
[1960] 2 S.C.R. 821
referred to.
Para 22
[1950] S.C.R. 759
referred to.
Para 23
[1952] S.C.R. 597
referred to.
Para 24
[1970] 1 S.C.R. 156
referred to.
Para 25
[1950] S.C.R. 519
referred to.
Para 26
c
1995 (1) SCR 1036
relied on.
Para 29
[1950] S.C.R. 594
referred to.
Para 30
[1950] S.C.R. 605
referred to.
Para 31
[1960] 2 S.C.R. 821
referred to.
Para 33
D
[1966] 1 S.C.R. 709
referred to.
Para 33
[1970] 3 S.C.R. 288
relied on.
Para 34
63 L. Ed. 470
referred to.
Para 36
250 U.S. 616 (1919)
referred to.
Para 37
93 L. Ed. 1131 (1949)
referred to.
Para 37
E
23 L. Ed. 2d 430 (1969)
referred to.
Para ~7
155 L. Ed. 2d 535 (2003)
referred to.
Para 37
1989 (2) SCR 204
referred to.
Para 38
[1952] S.C.R. 654
relied on.
Para 39
[1957) S.C.R. 860
relied on.
Para 40
F
1962 Supp. (2) S.C.R. 769
relied on.
Para 40
1995 (6) Suppl. SCR 371
relied on.
Para 40
[1965] 1 S.C.R. 65
relied on.
Para 45
2006 (5) Suppl. SCR 403
relied on.
Para 45
2014 (4) sec 257
relied on.
Para 45
G
92 L. Ed. 562
referred to.
Para 52
92 L. Ed. 840
referred to.
Para 53
96 L. Ed. 1098
referred to.
Para 54
527 U.S. 41 (1999)
referred to.
Para 55
33 L.Ed. 2d. 222
referred to.
Para 57
H
980
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A 521 U.S. 844 (1997)
referred to.
Para 60
132 S.Ct. 2307
relied on.
Para 63
[1961] 1 S.C.R. 970
relied on.
Para 64
[1971] 2 S.C.R. 446
relied on.
Para 65
1970 (1) SCR 479
relied on.
Para 66
B 1994 (2) SCR 375
relied on.
Para 67
1994 (2) SCR 375
relied on.
Para 68
2004 (3) SCR 692
held
inapplicable. Para 77
2010 (4) SCR 1042
held
c
inapplicable. Para 77
2003 (2) Suppl. SCR 727
held
inapplicable. Para 78
(2006) 1 WLR 2223
referred to.
Para 79
D [2013] 1 W.L.R.1833
referred to.
Para 80
1994 (4) Suppl. SCR 353
relied on.
Para 83
2010 (5) SCR 322
relied on.
Para 84
521 U.S. 844 (1997)
relied on.
Para 85
1995 (1) SCR 1036
relied on.
Para 86
E [1962] Supp. 2 S.C.R. 769
relied on.
Para 86
[1960] 2 S.C.R. 821
followed.
Para 86
1962 Supp. (3) S.C.R. 369
followed.
Para 87
[1962] 3 S.C.R. 786
referred to.
Para 88
[1950] S.C.R. 594
relied on.
Para 91
F [1957] S.C.R. 930
distinguished. Para 94
[1957] S.C.R. 399
relied on.
Para 95
CRIMINAL I CIVIL ORIGINAL JURISDICTION:Writ
Petition (Criminal) No. 167 of2012
G
Under Article 32 of the Constitution of India.
WITH
W.P.(C) Nos. 21, 23, 97 and 217, 222 of2013;
W.P.(Crl.) Nos. 199, 222 and 225 of2013;
H W.P.(C) Nos.758 of 2014;
SHREYASINGHAL v. UNION OF INDIA
981
and W.P.(Crl.) N0.196 of 2014
A
P. S. Narasimha, ASG, Soli Sorabjee, Sajan Poovayya,
Gaurav Bhatia, AAG, Manali Singhal, Ranjeeta Rohtagi, Ninad
Laud, Jaya Khanna,Abhikalp, Pratap Singh, Mehernaz Mehta,
Gursimran Dhillon, Karan Mathur, Santosh Sachin, Gaurav 8
Srivastava, Deepak Rawat, Sarvjeet Singh, Sanjay Parikh,
Karuna Nundy, Apar Gupta, Mamta Saxena, Ritwik Parikh, AN.
Singh, Pukhramban Ramesh Kumar, Prashant Bhushan,
Pranav Sachdeva, Neha Rathi, Priyadarshi Banerje, Sumit
Attri, Praveen Sehrawat, Sujoy Chatterjee, E. C. Agrawala, c
Krishan Kumar, Abhay Nagvai, Biju K. Nair, Shagun Belwal
(for Lawyer's Knit & Co), Liz Mathew, M.F. Philip, Kush
Chaturvedi, Saikrishna Rajagopal, J. Sai Deepak, Savni Dutt,
Tanya Shree, Rachel Mamatha, Tanya, Abhinav Mukerji, Renjith
8. Marar, Lakshmi N. Kaimal, Rajat Nair, Shanelle Irani, Rohan
D
Jaitley, Nalin Kohli, Pujitha Gorantla, Nivedita Nair, Vakul
Sharma, Saumya, Rashmi Malhotra, Ajay Sharma, Gaurav
. Sharma, S.S. Rawat, D. S. Mahra, Abhishek Chaudhary,
Utakarsh Jaiswal, Sapam Biswajit Meitei, L.H. Issac Haiding,
Ashok Kumar Singh, D. Mahesh Babu, V. G. Pragasam, S.J.
E
Aristotle, Prabu Rama Subramanian, Mohit D. Ram, Ravi
Prakash Mehrotra, Kunal A. Cheema, Anirudda P. Mayee,
Charudatta, Selvin Raja, Asha Gopalan Nair, Anip Sachthey,
Saakar Sardana, Surabhi Sardana, V. Shyamohan, Chaitali
Y. Dhinoja, Shreyas Mehrotra, Abhishek Kumar, A.S.
F
Vishwajith, Vishwa Pal Singh, P. Venkat Reddy, Sumanth
Nookala (for Palwai Venkat Law Associates), Guntur
Prabhakar, Prerna Singh, Ram Sankar, G. Ananda Selvam,
Mayilsamy K, R. V. Kameshwaran, Subail Farrukh,Abhimanyu
Chopra, Priya Puri, Ranjay Kr. Dubey, Gireesh Kumar, Sriram G
P, Vijay Kumar, Dr. NafisA. Siddiqui forthe appearing parties.
The Judgment of the Court was delivered by
R. F. NARIMAN, J. 1. This batch of writ petitions filed
H
982
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A 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
B 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
C hereinbelow:
"66-A. Punishment for sending offensive messages
through communication service, etc:.-Any person
who sends, by means of a computer resource or a
D
communication device,-·
(a) any information that is grossly offensive or has
menacing character; or
E
(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;
F
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
G
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
H
"electronic mail" and "electronic mail message" means
SHREYASINGHAL v. UNION OF INDIA [R. F. NARI MAN, J.] 983
a message or information created or transmitted or
A
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:-
B
1· The genealogy of this Section may be traced back to Section 10(2)(a) of the U.K. Post
Office (Amendment) Act, 1935, which made it an offence to send any message by C
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 messaQI' or
other matter that is grossly offensive or of an indecent, obscene or menacing character;
or
(b) cause any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance,
inconvenience or needless anxiety to another, he-
. (a) sends by means of a public electronic communications network, a message that he
knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3)A person guilty of an offence under this section shall be liable, on summary conviction,
to imprisonment for a term not exceeding six months or to a fine not exceeding level 5
on the standard scale, or to both.
(4)
Subsections (1) and (2) do not apply to anything done in the course of providing
a programme service (within the meaning of the Broadcasting Act 1990 (c.42)).
D
E
F
G
H
984
A
B
c
D
E
F
SUPREME COURT REPORTS
[2015] 5 S.C.R.
"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:
G
"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
H
personation commonly known as Phishing, identity theft
SHREYASINGHAL v. UNION OF INDIA[R. F. NARIMAN, J.] 985
and offensive messages through communication
A
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 668 to 67C and various Sections of the
Indian Penal Code (which will be referred to hereinafter) are
B
good enough to deal with all these crimes.
C
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 o
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 66Asuffers from the E
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 F
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 G
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 H
986
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A 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
B 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
C object and would fall foul of Article 14 in any case.
6. In reply, Mr.