Shreya Singhal v. Union of India

Section 66A of the Information Technology Act made it a crime to send information that is grossly offensive, annoying or inconvenient. Petitioners said it chokes free speech online. The Supreme Court struck it down as vague and overbroad, and outside the eight grounds in Article 19(2). It upheld the blocking power in Section 69A and read down Section 79.

Quick Revision

Read the full judgment: Indian Kanoon (unofficial copy)

Parties

Shreya Singhal and other petitioners — petitioners in Writ Petition (Criminal) No. 167 of 2012 and the connected writ petitions (civil and criminal) filed under Article 32. They challenged Section 66A and related provisions.

Union of India — respondent; defended the provisions through Mr. Tushar Mehta, learned Additional Solicitor General.

Petitioner in Writ Petition No. 196 of 2014 — challenged Section 118(d) of the Kerala Police Act.

Procedural History

1. A batch of writ petitions was filed under Article 32 of the Constitution. They include Writ Petition (Criminal) No. 167 of 2012, W.P. (Civil) Nos. 21, 23, 97, 217 and 758 of 2013 and 2014, W.P. (Criminal) Nos. 199, 222 and 225 of 2013 and W.P. (Criminal) No. 196 of 2014 (para 1).
2. The petitions raise far-reaching questions on the fundamental right of free speech and expression under Article 19(1)(a). The immediate concern is Section 66A of the Information Technology Act, 2000 (para 1).
3. The Court heard the petitioners' counsel and Mr. Tushar Mehta for the Union of India, and decided the batch by judgment of 24 March 2015 (paras 5-6, 119).

Facts

1. Section 66A was not in the Information Technology Act, 2000 as first enacted. It came into force through the Amendment Act of 2009 with effect from 27 October 2009 (para 1).
2. Section 66A punishes a person who sends, by a computer resource or communication device, information that is grossly offensive or has a menacing character. It also covers information the sender knows to be false, sent persistently for causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will (para 1).
3. It also covers an electronic mail sent for causing annoyance or inconvenience, or to deceive or mislead the addressee about the origin of the message. The punishment is imprisonment up to three years and fine (para 1).
4. The same amendment introduced Section 69A, which lets the Central Government direct blocking of information for public access, for reasons recorded in writing (para 2).
5. Section 69A(1) allows blocking in the interest of sovereignty and integrity of India, defence, security of the State, friendly relations with foreign States or public order, or to prevent incitement to a cognizable offence relating to these. An intermediary who fails to comply is punishable with imprisonment up to seven years and fine (para 2).
6. The Statement of Objects and Reasons of the Amendment Bill said that a rapid increase in computer and internet use had given rise to new crimes. Examples were sexually explicit material, video voyeurism, phishing, identity theft and offensive messages (para 3).
7. The petitioners said Section 66A is not needed because Sections 66B to 67C and various sections of the Indian Penal Code deal with these crimes (para 4).
8. Many persons have been booked under Section 66A, and instances were given to the Court in a note (para 5).
9. Section 118(d) of the Kerala Police Act punishes causing annoyance to any person in an indecent manner by statements, comments, calls, messages or mails, with imprisonment up to three years or a fine up to Rs. 10,000, or both (para 102).

Issues Raised

1. Does Section 66A infringe Article 19(1)(a), and is it saved by any of the eight subjects in Article 19(2), such as public order, defamation, incitement to an offence or decency or morality (paras 5, 20-21)?
2. Is Section 66A void for vagueness (para 50)?
3. Is Section 66A overbroad, with a chilling effect on free speech (para 83)?
4. Can the possibility of abuse be ignored, and can Section 66A be saved by severing part of it (paras 91, 93)?
5. Does Section 66A violate Article 14, or suffer from procedural unreasonableness (paras 97, 99)?
6. Is Section 118(d) of the Kerala Police Act valid (para 102)?
7. Are Section 69A and the 2009 Blocking Rules valid (para 108)?
8. Are Section 79(3)(b) and the 2011 Intermediary Guidelines Rules valid (paras 114-115)?

Arguments Contended

For the petitioners:

• Section 66A infringes free speech and is not saved by any of the eight subjects in Article 19(2). Causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will is outside Article 19(2) (para 5).
• Section 66A is vague. Unlike Section 66, none of its terms is defined. Persons are not told which side of the line they fall on, and authorities can be arbitrary and whimsical (para 5).
• Its enforcement is an insidious form of censorship. It has a chilling effect on free speech, and it takes away viewers' benefit of the many shades of grey on the internet (para 5).
• Articles 14 and 21 are breached. There is no intelligible differentia between those who use the internet and those who use other media (para 5).
• The very basis of Section 66A, that it deals with new forms of crime, is incorrect. Sections 66B to 67C and the Penal Code are enough (para 4).
• Section 66A also suffers from procedural unreasonableness. It lacks the safeguards in Sections 199, 95, 96 and 196 of the Code of Criminal Procedure (paras 99-101).
• Petitioner in Writ Petition No. 196 of 2014: Section 118(d) of the Kerala Police Act is beyond the State's legislative competence, as it falls in Entry 31 of List I (para 103).
• On Section 69A and the 2009 Rules, there is no pre-decisional hearing for the originator of the information. Protections like Sections 95 and 96 of the Code are absent, and the confidentiality provision affects fundamental rights (para 108).
• On Section 79 and the 2011 Rules, the intermediary must exercise its own judgment to disable information. No safeguards exist as in the 2009 Rules. Rule 3(2) is vague and overbroad and has no relation to Article 19(2), and the expression unlawful acts in Section 79(3)(b) goes beyond Article 19(2) (paras 114-115).

For the respondent (Union of India), Mr. Tushar Mehta, Additional Solicitor General:

• The legislature is best placed to understand the needs of the people. The Court should interfere only when a statute clearly violates Part III rights, and there is a presumption of constitutionality (para 6).
• The Court can construe a statute to make it workable, and read into or read down provisions. The Constitution imposes no impossible standards. Mere possibility of abuse is not a ground to invalidate (para 6).
• Loose language may have been used to deal with novel ways of disturbing others' rights through the internet. Vagueness is not a ground to strike down a competent, non-arbitrary statute (para 6).
• Section 66A can be supported under public order, defamation, incitement to an offence and decency or morality (para 20).
• A relaxed standard of reasonableness should apply to the internet. He set out its differences from print and other media in a written submission (para 27).
• The Court should read into Section 66A each subject in Article 19(2), and the twelve categories of information he listed, to make it workable (para 48).
• The expressions in Section 66A may be incapable of precise definition, but that does not make them vulnerable (para 77).
• Possibility of abuse is no ground to test validity. The Government is committed to free speech and Section 66A would be used only to curb excesses (para 91).
• If any part is invalid, the doctrine of severability under Article 13 may be used (para 93).
• In the Kerala Act challenge, the judgment records no separate argument from the State on Section 118(d) (para 102).

Court's Reasoning

The judgment is by Nariman, J. for the Bench of J. Chelameswar and R.F. Nariman, JJ. Paragraph numbers are those of the judgment.

Nariman, J. (for the Bench)

Section 66A and the challenge

1. Noted: The batch raises important questions on free speech and expression under Article 19(1)(a). The immediate concern is Section 66A, which came in by the 2009 Amendment Act with effect from 27 October 2009. (para 1)
2. Noted: The Court sets out the text of Section 66A and its Explanation on electronic mail messages. (para 1)
3. Noted: A related challenge is to Section 69A, introduced by the same amendment. The Court sets out its text. (para 2)
4. Noted: The Statement of Objects and Reasons said penal provisions were needed for new forms of crime. (para 3)
5. Noted: The petitioners deny that Section 66A has any such basis. They say Sections 66B to 67C and the Penal Code are enough. (para 4)
6. Noted: The petitioners raised many points. First, Section 66A infringes free speech and is not saved by Article 19(2). Second, it is vague, and unlike Section 66 it defines none of its terms. (para 5)
7. Noted: They add that it is an insidious form of censorship with a chilling effect. They also say it infringes viewers' rights and breaches Articles 14 and 21. (para 5)
8. Noted: Mr. Tushar Mehta defended the provision. The Court will interfere only when a statute clearly violates Part III, and a presumption favours constitutionality. He said possible abuse is no ground of invalidity and that vagueness alone is not a ground. (para 6)

Freedom of speech and expression

1. Noted: Article 19(1)(a) guarantees freedom of speech and expression to all citizens. (para 7)
2. Noted: Article 19(2) lets the State make laws imposing reasonable restrictions on free speech. The restriction must be in the interests of one of eight subjects. (para 7)
   • The sovereignty and integrity of India.
   • The security of the State.
   • Friendly relations with foreign States.
   • Public order.
   • Decency or morality.
   • Contempt of court.
   • Defamation.
   • Incitement to an offence.
3. Noted: The Preamble speaks of liberty of thought, expression, belief, faith and worship. In a democracy, liberty of thought and expression is a cardinal value of paramount significance. (para 8)
4. Noted: Romesh Thappar v. State of Madras said free speech lies at the foundation of all democratic organisations. Sakal Papers v. Union of India, a Constitution Bench, said freedom of expression of opinion is of paramount importance under a democratic constitution. (para 9)
5. Noted: In Bennett Coleman & Co. v. Union of India, Beg, J. said freedom of speech and of the press is the Ark of the Covenant of Democracy, since public criticism is essential to the working of its institutions. (para 9)
6. Noted: S. Khushboo v. Kanniamal said free speech, though not absolute, must tolerate unpopular views. It requires a free flow of opinions and ideas, and a culture of open dialogue is of great societal importance. (para 10)
7. Noted: Khushboo refers to the marketplace of ideas concept. Justice Holmes, dissenting in Abrams v. United States, said the ultimate good is better reached by free trade in ideas. (para 11)
8. Noted: Justice Brandeis, concurring in Whitney v. California, said that fear of serious injury cannot alone justify suppression of free speech. There must be reasonable ground to believe the danger is imminent and the evil serious. (para 12)
9. Noted: He also said the wide difference between advocacy and incitement, preparation and attempt, and assembling and conspiracy must be borne in mind. (para 12)
10. Held: Three concepts are fundamental to free speech: discussion, advocacy and incitement. "Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a)". (para 13)
11. Held: Article 19(2) applies only when discussion or advocacy reaches the level of incitement. Only then may a law curb speech that leads inexorably to public disorder or affects the other subjects in Article 19(2). (para 13)
12. Noted: Most arguments veered around the expression public order, so these three concepts matter. (para 13)
13. Noted: The Court asks whether it is safe to use American judgments under Article 19(1)(a), as many Indian judgments refer to them. (para 14)
14. Noted: There are four differences between the US First Amendment and Article 19(1)(a) read with Article 19(2). The First Amendment is absolute in wording. It speaks of the press and not expression, and allows speech to be abridged. Our Constitution allows reasonable restrictions on eight subjects. (para 15)
15. Noted: The US Supreme Court has never given the First Amendment literal effect. Chaplinsky v. New Hampshire (Murphy, J.) said the right is not absolute, and that lewd, obscene, profane, libelous and insulting or fighting words can be punished. (para 16)
16. Noted: Cantwell v. Connecticut is quoted within it on epithets and personal abuse. (para 16)
17. Noted: On the second difference, both systems protect speech, expression and press freedom by judicial interpretation. Both require a reasonable restriction to be narrowly tailored. (para 17)
18. Held: The vast difference lies in the eight subjects. In the US, a compelling necessity for an important goal may pass. In India, a law in the interest of the general public cannot pass unless it is within Article 19(2), and if it is outside, Indian courts will strike it down. (para 17)
19. Held: American judgments therefore have great persuasive value on the content of free speech and the tests for infringement. The difference arises only in subserving the general public interest. (para 18)
20. Noted: Kameshwar Prasad v. State of Bihar held the American decisions of little use, because the grounds here are set out with definiteness and precision. (para 18)
21. Noted: Indian Express Newspapers v. Union of India (Venkataramiah, J.) said American decisions can be taken into account to understand the basic principles of free speech, but Article 19(1)(a) differs in pattern. (para 19)
22. Noted: With these remarks, the Court goes to the challenge. (para 20)

Article 19(1)(a): the reach of Section 66A

1. Noted: Section 2(v) of the Information Technology Act defines information inclusively, with no reference to content. It covers data, messages, text, images, sound, voice, codes, programmes, software and databases. (para 20)
2. Held: The petitioners are correct that the public's right to know is directly affected. Information of every kind is roped in, including scientific, literary or artistic value and current events. It is annoying, inconvenient or grossly offensive to some that makes the offence. (para 20)
3. Held: Section 66A makes no distinction between mere discussion or advocacy and incitement that causes an imminent link to public disorder. It clearly affects the freedom of speech of the citizenry at large. (para 20)
4. Noted: Justice Jackson in American Communications Association v. Douds said thought control is a copyright of totalitarianism. He said the citizen keeps the Government from error, and censorship is justified only when the censors are better shielded from error. (para 20)
5. Noted: The State claims Section 66A is supported by public order, defamation, incitement to an offence and decency or morality. The petitioners say it has no proximate relation with any of the eight subjects. (para 20)
6. Held: Under our scheme, the State cannot curtail free speech to promote the general public interest. Sakal Papers said free speech can be restricted only on the Article 19(2) grounds and not in the interest of the general public. (para 21)
7. Noted: Sakal Papers added that the State cannot restrict one freedom directly to secure the better enjoyment of another. (para 21)
8. Noted: The Court must understand the expression in the interests of. In Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, this Court held that a remote or fanciful connection with public order is not enough. (para 22)
9. Noted: The restriction must have a proximate connection or nexus with public order, and not one that is far-fetched, hypothetical or too remote. The instigation of a single person not to pay tax was not a spark igniting a revolutionary movement. (para 22)
10. Noted: Chintaman Rao v. State of Madhya Pradesh said a reasonable restriction must not be arbitrary or excessive, beyond what is required in the public interest. It implies intelligent care and deliberation. (para 23)
11. Noted: State of Madras v. V.G. Row said courts examine both substantive and procedural aspects. The test is applied to each statute, and no abstract standard exists. It refers to Dr. N.B. Khare v. State of Delhi. (para 24)
12. Noted: V.G. Row lists the relevant factors: the nature of the right, the purpose, the extent and urgency of the evil, the disproportion of the imposition, and the prevailing conditions. It stresses the judges' self-restraint. (para 24)
13. Noted: Mohd. Faruk v. State of Madhya Pradesh said the Court evaluates the direct and immediate impact on the right, and whether a less drastic restraint could achieve the object. (para 25)
14. Noted: In Dr. N.B. Khare v. State of Delhi, a Constitution Bench said reasonableness includes the procedural part of the law. (para 26)

The internet and a relaxed standard

1. Noted: The Additional Solicitor General asked for a relaxed standard because the internet differs from other media. His written submission lists the differences. (para 27)
2. Noted: Among them are the global reach of the internet, and that one click downloads a post whether the person is literate or not. There is no pre-censorship, and each individual is publisher, printer, producer, director and broadcaster. (para 27)
3. Noted: He added that morphing of images and rumours can spread to trillions with no check. Privacy is easily invaded and sexual harassment and communal frenzy are easily caused. Offenders can remain anonymous, and the medium has no institutional ethical norms. (para 27)
4. Held: These factors may justify separate offences for speech on the internet. There is an intelligible differentia with a rational relation to the object, so an Article 14 challenge on this ground is repelled. (para 28)
5. Held: But nothing in the features outlined relaxes the Court's scrutiny of the curbing of content. A narrowly drawn section, such as Section 69A, is still tested on the same touchstone. (para 28)
6. Noted: Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal (1995) 2 SCC 161 asked, at para 37, whether the electronic media needs more restrictions. Its para 78 answered that airwaves are public property and need regulation. (para 29)
7. Noted: The same passage said the wider reach of a medium cannot restrict the content of the right. Control on content can be exercised only within Article 19(2), and to plead for other grounds is to plead for unconstitutional measures. (para 29)

Public order

1. Noted: Article 19(2) as originally enacted lacked public order. So orders under Section 7 of the Punjab Maintenance of Public Order Act and Section 9(1)(a) of the Madras Maintenance of Public Order Act were struck down. (para 30)
2. Noted: Romesh Thappar held the Madras order void as it could not be justified as a measure connected with security of the State. It said public order signifies a state of tranquillity among the members of a political society. (para 30)
3. Noted: Brij Bhushan v. State of Delhi held an order under Section 7 of the East Punjab Public Safety Act, 1949 void for the same reason. (para 31)
4. Noted: The Constitution First Amendment then added public order to Article 19(2). (para 32)
5. Noted: Ram Manohar Lohia held public order is synonymous with public safety and tranquillity. It is the absence of disorder of local significance, unlike national upheavals affecting the security of the State. (para 33)
6. Noted: Dr. Ram Manohar Lohia v. State of Bihar refined this. It said law and order, public order and security of the State are three concentric circles, with law and order the largest. (para 33)
7. Noted: Arun Ghosh v. State of West Bengal approved that view. It said public order is the even tempo of the life of the community. (para 34)
8. Noted: Arun Ghosh gave examples. A man who stabs another may only breach law and order. A man who molests women in lonely places disturbs public order. The question is one of degree and effect on the community. (para 34)
9. Held: The test is whether an act leads to disturbance of the current life of the community or merely affects an individual, leaving the tranquillity of society undisturbed. (para 35)
10. Held: By this test, Section 66A has no proximate relationship to public order. It makes no distinction between mass dissemination and a message to one person. (para 35)
11. Held: The Section does not require a tendency to disrupt public order. The nexus between message and action is absent, and no ingredient of inciting anyone is present. The offence is complete by sending a message for annoyance, even persistently, without any impact on public order. (para 35)
12. Noted: Arun Ghosh's example of a guest annoying hotel girls is telling, since mere annoyance need not disturb public order. (para 35)

Immediate danger, and tendency

1. Noted: Justice Holmes in Schenck v. United States gave the clear and present danger test. It asks whether words create such a danger of bringing about the substantive evils the legislature may prevent. It is a question of proximity and degree. (para 36)
2. Noted: Schenck cites Gompers v. Buck's Stove & Range Co. It said false shouting of fire in a theatre is not protected. (para 36)
3. Noted: Abrams v. United States refined the test in a Holmes dissent to clear and imminent danger. Later US judgments understood it as clear and present danger. It appears in Terminiello v. City of Chicago, Brandenburg v. Ohio and Virginia v. Black. (para 37)
4. Noted: S. Rangarajan v. P. Jagjivan (para 45) has echoes of it. The anticipated danger must not be remote, conjectural or far-fetched. It must have a proximate and direct nexus with the expression, like a spark in a powder keg. (para 38)
5. Noted: This Court also used tendency. State of Bihar v. Shailabala Devi said an article, to be banned, must have a tendency to excite persons to acts of violence. It is considered as a whole, on the mind of a reasonable reader. (para 39)
6. Noted: Ramji Lal Modi v. State of U.P. upheld Section 295A of the Penal Code only when read down to require a tendency to disrupt public order. (para 40)
7. Noted: Kedar Nath Singh v. State of Bihar upheld Section 124A of the Penal Code narrowly. Words must have a tendency of creating public disorder by violence, and mere disaffection or enmity is not enough. (para 40)
8. Noted: Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte upheld Section 123(3A) of the Representation of the People Act only if the hatred would tend to create immediate public disorder. (para 40)
9. Held: On either the clear and present danger test or the tendency test, Section 66A does not pass. It has no element of tendency to create public disorder, which should be an essential ingredient. (para 41)

Defamation, incitement and decency or morality

1. Noted: Section 499 of the Penal Code defines defamation. The Court sets out the section and its four Explanations. (para 42)
2. Held: Injury to reputation is a basic ingredient of defamation. Section 66A does not concern itself with it. Something grossly offensive may annoy without affecting reputation. So the Section is not aimed at defamatory statements. (para 43)
3. Held: Section 66A has no proximate connection with incitement to commit an offence. Information sent need not incite anyone, and may be pure discussion or advocacy of a point of view. (para 44)
4. Held: Annoyance, inconvenience, danger, being grossly offensive or menacing are not offences under the Penal Code. They may be ingredients of certain offences but are not offences in themselves. (para 44)
5. Held: Section 66A is unrelated to any of the eight subjects. It falls foul of Article 19(1)(a), is not saved under Article 19(2), and is declared unconstitutional. (para 44)
6. Noted: Ranjit Udeshi v. State of Maharashtra followed the Hicklin test of obscenity. That test asks whether the matter tends to deprave and corrupt those open to immoral influences. (para 45)
7. Noted: Director General, Directorate General of Doordarshan v. Anand Patwardhan noted the US test. Material is obscene if an average person applying contemporary community standards finds it appeals to the prurient interest and lacks serious value. (para 45)
8. Noted: Aveek Sarkar v. State of West Bengal moved away from the Hicklin test and applied the contemporary community standards test. (para 46)
9. Held: Section 66A cannot be within decency or morality. What is grossly offensive or annoying need not be obscene, and the word obscene is conspicuous by its absence. (para 47)
10. Held: The Court cannot read into Section 66A each subject in Article 19(2). Where the legislature meant to do so, it did so in Section 69A. That would do complete violence to the language of Section 66A. (para 48)
11. Noted: The Additional Solicitor General asked the Court to read in these twelve categories of information to make Section 66A workable. (para 48)
    • Information that appears highly abusive, insulting, pejorative or offensive to a reasonable person, judged by the standards of an open and just multi-caste, multi-religious, multi-racial society. He cited Collins, Connolly and the House of Lords Select Committee report on Social Media and Criminal Offences.
    • Information directed to incite, or able to produce, imminent lawless action (Brandenburg).
    • Credible threats of violence to a person or damage to property.
    • Information that stirs the public to anger, invites violent disputes or brings about violent unrest (Terminiello).
    • Information that advocates the duty, necessity or propriety of violence as a means of political, social or religious reform, or glorifies such violence (Whitney).
    • Fighting or abusive material (Chaplinsky).
    • Hate speech: hatred towards individuals or groups on race, religion, caste or ethnicity. It includes abusive or inflammatory remarks showing the supremacy of one religion, race or caste, and depictions of deities, holy persons, symbols or books made to insult or show contempt.
    • Satirical or iconoclastic cartoons and caricature that fail the Hustler v. Falwell test.
    • Information glorifying terrorism and drug use.
    • Information infringing privacy, including cyber bullying, harassment or stalking.
    • Obscene information that tends to arouse overt sexual desire and suggests a depraved mind (Aveek Sarkar).
    • Material posted so that it outrages the modesty of the pictured individual, tested by context and background (Aveek Sarkar).
12. Noted: He relied on DPP v. Collins, Connolly v. DPP, Brandenburg v. Ohio, Terminiello v. Chicago, Whitney v. California, Chaplinsky v. New Hampshire, Hustler Magazine v. Falwell and Aveek Sarkar v. State of West Bengal. (para 48)
13. Held: He is asking not for a reading down but for a wholesale substitution of the provision, which is not possible. (para 49)

Vagueness

1. Noted: Counsel argued that Section 66A is so vague that an accused is not put on notice and authorities cannot tell which side of the line a communication falls. (para 50)
2. Noted: Collins' dictionary definitions of offensive, menace, annoy, inconvenience, danger, obstruct and insult were put before the Court. (para 51)
3. Noted: The US Supreme Court has held in a series of judgments that a vague section without reasonable standards must be struck down as arbitrary and unreasonable. In Musser v. Utah, a statute against conspiracy to commit acts injurious to public morals was struck down. (para 52)
4. Noted: In Winters v. People of State of New York, a New York law against publications made up of criminal news and deeds of bloodshed, lust or crime was struck down as too uncertain. (para 53)
5. Noted: Winters said the impossibility of defining the precise line makes a law vague where men of common intelligence must guess at its meaning. An honest distributor could not know when he might be held to have ignored the prohibition. (para 53)
6. Noted: Winters cites Connally v. General Construction Co., Herndon v. Lowry and the Cohen Grocery Co. case. (para 53)
7. Noted: Burstyn v. Wilson struck down a ban on sacrilegious writings. It said vague, undefinable powers of censorship have stultifying consequences. (para 54)
8. Noted: City of Chicago v. Morales dealt with an ordinance on gang members loitering. It cited United States v. Reese to say a legislature cannot set a net large enough to catch all possible offenders. (para 55)
9. Noted: Morales held that a penal law is void for vagueness if it does not define the offence with sufficient definiteness. Ordinary people must understand what is prohibited, and enforcers must know what offence has been committed. (para 56)
10. Noted: Grayned v. City of Rockford said vague laws offend several values. They fail to give fair warning and delegate policy to policemen, judges and juries. They also inhibit First Amendment freedoms so that citizens steer far wider of the unlawful zone. (para 57)
11. Noted: The anti-noise ordinance in Grayned was upheld as it fixed the time and place: while school is in session and adjacent to the school. (para 58)
12. Noted: Grayned also required causality between the noise and the disturbance, and wilful acts. It held that undesirables or their annoying conduct may not be punished. (para 59)
13. Noted: Reno v. American Civil Liberties Union struck down provisions of the Communications Decency Act, 1996 on material harmful to minors on the internet. (para 60)
14. Noted: Reno matters as it deals with offences for internet users, and the expression patently offensive comes close to grossly offensive in Section 66A. The Court sets out Section 223(d). (para 60)
15. Noted: The District Court in Reno said the internet is the most participatory marketplace of mass speech. Individuals of limited means can speak to a worldwide audience. (para 60)
16. Noted: Reno held that the statute lacked the precision the First Amendment requires. It suppresses a large amount of speech adults have a right to receive. (para 61)
17. Noted: A burden on adult speech is unacceptable if less restrictive alternatives would be as effective. The term patently offensive was both vague and overbroad, and not narrowly tailored. (para 62)
18. Noted: Federal Communications Commission v. Fox Television Stations said a fundamental principle is that laws must give fair notice of forbidden conduct. It cites Connally, Papachristou v. Jacksonville, Lanzetta v. New Jersey and United States v. Williams. (para 63)
19. Noted: Fox added that the vagueness doctrine addresses two concerns: notice to regulated parties, and precision so that enforcers do not act arbitrarily. Where speech is involved, rigorous adherence is needed so that ambiguity does not chill protected speech. (para 63)
20. Noted: In State of Madhya Pradesh v. Baldeo Prasad, an inclusive definition of goonda was held vague, and Section 4A of the Goondas Act violated Article 19(1)(d) and (e). It gave the authority no test. (para 64)
21. Noted: Baldeo Prasad said an Act must provide safeguards against casual, capricious or malicious use. A statute for preventive action must make it a duty of the authority to satisfy itself of the conditions. (para 64)
22. Noted: This Court once suggested that vagueness was no part of Indian constitutional law. K.A. Abbas v. Union of India dispelled that. It said a law affecting fundamental rights may be bad for sheer vagueness. (para 65)
23. Noted: Abbas referred to Municipal Committee Amritsar v. State of Rajasthan. It held that such observations were obiter and needed explanation. (para 65)
24. Noted: Abbas said the court must try to construe a vague law in line with the legislature's intention. But where the law admits no such construction, the persons applying it are in a boundless sea of uncertainty and the law takes away a guaranteed freedom, it must be held to offend the Constitution. (para 65)
25. Noted: In Harakchand Ratanchand Banthia v. Union of India, Section 27 of the Gold Control Act was struck down. Conditions such as region, anticipated demand and suitability of the applicant were vague. (para 66)
26. Noted: A.K. Roy v. Union of India read down part of Section 3 of the National Security Ordinance. The words acting in any manner prejudicial to the maintenance of supplies and services essential to the community were so vague as to be capable of wanton abuse. (para 67)
27. Noted: Kartar Singh v. State of Punjab (at its internal paragraphs one hundred thirty and one hundred thirty-one) said an enactment is void for vagueness if its prohibitions are not clearly defined. It held Section 2(1)(a)(i) blissfully and impermissibly vague. (para 68)
28. Held: Judged by these standards, the expressions in Section 66A are completely open-ended and undefined. Section 66, in contrast, is about dishonestly or fraudulently doing an act under Section 43, with the IPC definitions in its Explanation. (para 69)
29. Held: In all computer offences under Section 66, mens rea is an ingredient, and dishonestly and fraudulently are defined with some specificity. (para 70)
30. Noted: Sections 66B to 67B provide for offences clearly made out. Section 66B punishes dishonest receipt of stolen computer resources, 66C identity misuse and 66D cheating by personation. (para 71)
31. Noted: Section 66F is narrowly drawn and applies to threats to unity, integrity, security or sovereignty, with punishment up to life. Sections 67 to 67B deal with obscene material, including child sexual content. (para 71)
32. Noted: Section 268 of the Penal Code on public nuisance uses several of Section 66A's expressions. The Court sets it out. (para 72)
33. Held: In Section 268 these are ingredients of the offence of public nuisance. In Section 66A they become offences in themselves. Section 268 requires an illegal act or omission and injury, danger or annoyance to the public in general. (para 73)
34. Noted: The word annoyance also appears in Sections 294 and 510 of the Penal Code. The Court sets them out. (para 73)
35. Held: In Section 294 the annoyance must be caused by obscene acts or words. In Section 510 it must be caused by an intoxicated person in a public place or a place he may not enter. Such narrow contours are missing from Section 66A. (para 74)
36. Held: None of the expressions in Section 66A is defined, not even criminal intimidation. Section 2 of the IT Act does not import Penal Code definitions. (para 75)
37. Held: Every expression is nebulous. What offends one may not offend another. Even persistently is imprecise: would a message sent thrice or eight times be persistent? There is no demarcating line, which renders the Section unconstitutionally vague. (para 76)
38. Noted: The Additional Solicitor General said the expressions may be incapable of precise definition but are not constitutionally vulnerable. He cited many judgments. (para 77)
39. Held: None of the cited judgments dealt with a criminal offence saved despite vagueness. Most did not deal with criminal law at all. (para 77)
40. Noted: Madan Singh v. State of Bihar, para 19, was cited only to uphold a conviction. In Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra, the word insurgency arose in a challenge to legislative competence under the Maharashtra Control of Organised Crime Act. (para 77)
41. Noted: In State of M.P. v. Kedia Leather & Liquor Ltd., the word nuisance in Section 133 of the Code of Criminal Procedure arose in a repeal argument on the Water Act, 1974. State of Karnataka v. Appa Balu Ingale said untouchability was not capable of precise definition. Neither raised vagueness. (para 78)
42. Noted: Two English cases show how vague the words are. In Director of Public Prosecutions v. Collins, the words grossly offensive are in Section 127(1)(a) of the UK Communications Act, 2003. (para 79)
43. Noted: Collins, a 61-year-old man, left telephone messages for an MP's office using racial slurs. The Justices and the Queen's Bench held them offensive but not grossly offensive. The House of Lords reversed. (para 79)
44. Noted: The House of Lords said the Justices decide as a question of fact whether a message is grossly offensive, by the standards of an open and just multi-racial society. It added that Section 127(1)(a) gives no explicit guidance on state of mind. (para 79)
45. Noted: In Chambers v. Director of Public Prosecutions, a man tweeted a joke about blowing an airport sky high when it closed. The Crown Court convicted him of a menacing message. (para 80)
46. Noted: The Queen's Bench reversed. It said the message's precise terms and context must be examined, and it did not represent a terrorist threat. (para 81)
47. Held: These two cases show that judicially trained minds can reach opposite conclusions on what is grossly offensive or menacing. Those expressions have no manageable standard, so neither a prospective offender nor the authorities can tell what offends Section 66A. (para 82)
48. Held: "Section 66A arbitrarily, excessively and disproportionately invades the right of free speech". It upsets the balance with reasonable restrictions, applying the tests in Chintaman Rao and V.G. Row. (para 82)

Chilling effect and over-wide reach

1. Held: Information that may be grossly offensive or annoying takes in a very large amount of protected and innocent speech. Any view on any matter may annoy someone. Examples include liberal views on emancipation of women or abolition of caste. (para 83)
2. Held: Section 66A is cast so widely that virtually any dissenting opinion is caught. If it stands, "the chilling effect on free speech would be total". (para 83)
3. Noted: This Court has recognised the chilling effect. In R. Rajagopal v. State of T.N., para 19, it discussed New York Times v. Sullivan and Derbyshire County Council v. Times Newspapers Ltd. (para 84)
4. Noted: Derbyshire said governmental bodies cannot sue for libel, since it would put an undesirable fetter on free speech. It referred to the chilling effect of libel actions and to Attorney General v. Guardian Newspapers Ltd. (No. 2). (para 84)
5. Noted: S. Khushboo v. Kanniammal, para 47, said the law should not be used in a way that has chilling effects on free speech. Complainants who disagree should contest views through the media or a public platform. (para 85)
6. Held: The content of the right under Article 19(1)(a) is the same for any means, including the internet. Reno and Cricket Association show this. (para 86)
7. Held: The expressions in Section 66A are inexact and overbroad, contrary to the Court's rule that restrictions must be couched in the narrowest terms. Kedar Nath Singh is cited for that rule. (para 86)
8. Noted: Constitution Bench judgments have struck down similar sections. In the first Ram Manohar Lohia case, Section 3 of the U.P. Special Powers Act punished instigation not to pay a liability. (para 86)
9. Noted: That Court said the wide net caught friendly advice and systematic propaganda, the innocent and the guilty, and depended on uncertain factors. It declared the Section unconstitutional. (para 86)
10. Noted: Kameshwar Prasad v. State of Bihar struck down Rule 4-A of the Bihar Government Servants Conduct Rules, 1956. The rule banned participation in any demonstration or strike on service conditions. (para 87)
11. Noted: Kameshwar Prasad held that demonstrations are a form of speech. A blanket ban on all demonstrations, innocent or otherwise, could not be upheld. (para 88)
12. Noted: It held that a remote disturbance of public order falls outside Article 19(2). The link must be intimate, real and rational. The vice of the rule was a ban on every type of demonstration, however incapable of breaching tranquillity. (para 89)
13. Held: These two Constitution Bench decisions bind the Court and apply directly. Section 66A takes in protected and innocent speech, has a chilling effect, and is struck down for overbreadth. (para 90)

Possibility of abuse

1. Noted: The Additional Solicitor General cited many judgments that possibility of abuse is no ground to test validity. He said the Government is committed to free speech. (para 91)
2. Noted: The Collector of Customs, Madras v. Nathella Sampathu Chetty said possibility of abuse of a valid statute gives it no invalidity. It added that an invalid statute cannot be saved by reasonable administration. It cites Belfast Corporation v. O.D. Commission (Viscount Simonds). (para 91)
3. Held: It is the converse that applies here. If Section 66A is otherwise invalid, an assurance of reasonable administration cannot save it. (para 92)
4. Held: "Governments may come and Governments may go but Section 66A goes on forever". An assurance from the present Government would not bind a successor, so the Section is judged on its own merits. (para 92)

Severability

1. Noted: The Additional Solicitor General said, in a written submission, that the doctrine of severability under Article 13 may be used if the Court finds any part invalid. (para 93)
2. Held: The submission is vague. He does not say which part of Section 66A can be saved. (para 94)
3. Noted: Romesh Thappar rejected severability in an Article 19(1)(a) case. A law wide enough to cover restrictions both inside and outside constitutional limits cannot be upheld even in part, if it can be applied for unsanctioned purposes. (para 94)
4. Held: Section 66A authorises restrictions in language wide enough to cover both permitted and unpermitted ones. Following K.A. Abbas, the possibility of unsanctioned application cannot be ruled out, so it is wholly unconstitutional. (para 95)
5. Noted: R.M.D. Chamarbaugwalla v. Union of India distinguished Romesh Thappar in an Article 19(1)(g) case. It said Romesh Thappar decided the provision was inseverable on its own contents. It also referred to State of Bombay v. F.N. Balsara and State of Bombay v. United Motors. (para 95)
6. Held: This is an Article 19(1)(a) case, so Romesh Thappar applies on all fours. In an Article 19(1)(g) case, the eight subjects are absent from Article 19(6). No part of Section 66A is severable, and the provision as a whole is unconstitutional. (para 96)

Article 14 and procedural unreasonableness

1. Noted: The petitioners argued that a vague offence is arbitrary under Article 14, and that no intelligible differentia separates internet speech from print, broadcast and live speech. (para 97)
2. Noted: They pointed out that Section 66A carries three years against two for defamation, and that it is cognizable while defamation is not. (para 97)
3. Held: Section 66A is vague and overbroad and violates Article 19(1)(a). The wider circulation of the internet cannot restrict the content of the right. (para 98)
4. Held: But there is an intelligible differentia. The internet gives anyone a platform at little or no cost, and material travels like lightning to millions. Separate offences can be created for speech on the internet. The Article 14 challenge fails. (para 98)
5. Noted: The petitioners also argued procedural unreasonableness. Safeguards under Section 199 of the Code of Criminal Procedure, such as a complaint by the aggrieved person within six months, are absent. (para 99)
6. Noted: Sections 95 and 96 of the Code are also absent. Under Section 96, a person interested may apply to the High Court within two months to set aside a seizure declaration, before a Bench of at least three Judges. (para 99)
7. Noted: Sections 95 and 96 show sensitivity to free speech. Section 196 needs previous sanction of the Central or State Government for offences under Chapter VI, Section 153A, Section 295A or Section 505(1), and for conspiracy to commit them. (para 100)
8. Noted: Section 196 also covers Sections 153B and 505(2) and (3), with sanction from the Government or District Magistrate. It covers criminal conspiracy under Section 120B, with consent and preliminary investigation provisions. The Court sets out the section. (para 100)
9. Noted: These safeguards for offences on promoting enmity between groups and outraging religious feelings do not apply where a similar offence is booked under Section 66A. (para 101)
10. Held: Having struck Section 66A down on substantive grounds, the Court need not decide the procedural unreasonableness aspect. (para 101)

Section 118(d) of the Kerala Police Act

1. Noted: The petitioner in Writ Petition No. 196 of 2014 challenged Section 118(d). The Court sets out the text. (para 102)
2. Noted: He first argued that the Act falls outside Entries 1 and 2 of List II and within Entry 31 of List I (posts, telegraphs, telephones, broadcasting). The Court sets out the entries. (para 103)
3. Held: The Kerala Police Act as a whole falls in Entry 2 of List II, and Section 118 falls in Entry 1 of List II, as its marginal note shows. (para 103)
4. Noted: A statute cannot be dissected to see under which field each part falls. A.S. Krishna v. State of Madras said one must see the true character of the legislation as a whole. If it is in substance on an assigned matter, it is valid though it incidentally trenches on others. (para 104)
5. Held: In pith and substance (in its true character), the Act and Section 118 fall within Entry 2 of List II, despite incidental encroachment on List I. In any case, the penalty for causing annoyance in an indecent manner falls within Entry 1 of List III, criminal law. (para 105)
6. Held: What is said of Section 66A applies directly to Section 118(d). Annoyance in an indecent manner has the same vagueness and overbreadth. It violates Article 19(1)(a), is not a reasonable restriction, is not saved by Article 19(2), and is declared unconstitutional. (para 106)

Section 69A and the 2009 Rules

1. Noted: Section 69A has been set out. The 2009 Rules are made under Section 69A(2). (para 107)
2. Noted: Under Rule 3, the Central Government designates an officer not below Joint Secretary rank as Designated Officer. Under Rule 4, each organisation designates a Nodal Officer, and under Rule 6 anyone may complain to the Nodal Officer. (para 107)
3. Noted: The Designated Officer takes no complaint directly from any person. Under Rule 5, on a request from a Nodal Officer or competent court, he may direct blocking by order for reasons in Section 69A(1). (para 107)
4. Noted: Under Rules 7 and 8, a Committee of Government Personnel examines the request. It first tries to identify the originator or intermediary and gives notice for a reply at least 48 hours after receipt. It then recommends in writing. (para 107)
5. Noted: The Designated Officer submits the recommendation to the Secretary, Department of Information Technology, who approves it. Then the Designated Officer directs blocking. (para 107)
6. Noted: Rule 9 allows blocking in emergencies without a hearing. The request must be put before the Committee within 48 hours, and the Secretary passes the final order only on its recommendation. (para 107)
7. Noted: Under Rule 10, the Designated Officer acts on a certified copy of a court order through the Secretary. Under Rule 14, a Review Committee meets at least once in two months and may set aside directions. Rule 16 requires strict confidentiality. (para 107)
8. Noted: The petitioners attacked Section 69A and the Rules for no pre-decisional hearing to the originator, defined in Section 2(za), and for the absence of Sections 95 and 96 safeguards. They also attacked the confidentiality rule. (para 108)
9. Held: Section 69A, unlike Section 66A, is narrowly drawn with safeguards. Blocking needs the Central Government's satisfaction that it is necessary. It relates only to some subjects in Article 19(2), and reasons must be recorded in writing so they can be challenged under Article 226. (para 109)
10. Held: The Rules give a hearing before the Committee. Under Rule 8 the originator, if identified, is also heard before an order. Blocking follows only after these safeguards or a court order. Only an intermediary who fails to comply is punishable under Section 69A(3). (para 110)
11. Held: The absence of additional safeguards such as Sections 95 and 96 of the Code does not make the Rules infirm. They are not constitutionally infirm in any manner. (para 111)

Section 79 and the 2011 Rules

1. Noted: Section 79 is in Chapter XII. It exempts intermediaries from liability for third party information if they meet the conditions. The Court sets out the section. (para 112)
2. Noted: Section 79(2) applies if the intermediary only gives access, does not initiate transmission, select the receiver or select or modify information, and observes due diligence. Section 79(3) removes the exemption if it aids the unlawful act or, on actual knowledge, fails to remove or disable access. (para 112)
3. Noted: Under the 2011 Rules, Rule 3 requires an intermediary to publish rules, privacy policy and user agreement. Rule 3(2) lists what users must not host or share, including grossly harmful, obscene, defamatory or unlawful content. (para 113)
4. Noted: Rule 3(4) says an intermediary, on knowledge by itself or from an affected person in writing or by signed email, must act within thirty-six hours to disable such information. It must preserve records for at least ninety days. (para 113)
5. Noted: Counsel said the intermediary is asked to use its own judgment, though it is a neutral platform. No safeguards exist as in the 2009 Rules. Rule 3(2) is vague and overbroad and has no relation to Article 19(2). (para 114)
6. Noted: Counsel also attacked Section 79(3)(b) because the intermediary judges on actual knowledge, and unlawful acts goes beyond Article 19(2). (para 115)
7. Held: Section 79 is an exemption provision, closely related to offence provisions such as Section 69A. Blocking there is by a reasoned order after safeguards, and an intermediary applying its own mind is noticeably absent. (para 116)
8. Held: Section 79(3)(b) must be read down. Actual knowledge means knowledge that a court order has been passed asking it to remove or disable access, and it fails to do so expeditiously. (para 117)
9. Held: Otherwise it would be very difficult for intermediaries like Google and Facebook to judge millions of requests. The Court notes that other countries, with Argentina in front, have accepted this view. (para 117)
10. Held: The court order or Government notification must strictly follow the subjects in Article 19(2). Unlawful acts beyond Article 19(2) cannot form part of Section 79. With these two caveats, Section 79(3)(b) is not struck down. (para 117)
11. Noted: The Additional Solicitor General said user agreements with the content in Rule 3(2) are common worldwide. (para 118)
12. Held: Rule 3(4) is read down in the same way. The knowledge in it must come only through a court order. Subject to this, the 2011 Rules are valid. (para 118)

Conclusion

1. Held: Section 66A is struck down in its entirety, being violative of Article 19(1)(a) and not saved under Article 19(2). (para 119)
2. Held: Section 69A and the 2009 Rules are constitutionally valid. (para 119)
3. Held: Section 79 is valid subject to Section 79(3)(b) being read down to mean that the intermediary fails to remove material on actual knowledge from a court order or notification from the Government, relating to Article 19(2). Rule 3(4) of the 2011 Rules is read down the same way. (para 119)
4. Held: Section 118(d) of the Kerala Police Act is struck down, being violative of Article 19(1)(a) and not saved by Article 19(2). All the writ petitions are disposed of in these terms. (para 119)

Authorities

• Romesh Thappar v. State of Madras ([1950] SCR 594): free speech at the foundation of democracy; public order; severability rejected in an Article 19(1)(a) case. Followed (paras 9, 30, 94, 96).
• Sakal Papers (P) Ltd. v. Union of India ([1962] 3 SCR 842): free speech restricted only on Article 19(2) grounds. Followed (paras 9, 21).
• Bennett Coleman & Co. v. Union of India ([1973] 2 SCR 757): Beg, J., freedom of the press is the Ark of the Covenant of Democracy (para 9).
• S. Khushboo v. Kanniamal ((2010) 5 SCC 600): free flow of ideas; chilling effects (paras 10, 85).
• Abrams v. United States (250 US 616 (1919)): Holmes, marketplace of ideas; clear and imminent danger (paras 11, 37).
• Whitney v. California (71 L.Ed. 1095; 274 US 357): Brandeis concurring; imminence; advocacy and incitement (paras 12, 48).
• Chaplinsky v. New Hampshire (86 L.Ed. 1031; 315 US 568) and Cantwell v. Connecticut (310 US 296): free speech not absolute in the US (paras 16, 48).
• Kameshwar Prasad v. State of Bihar (1962 Supp. (3) SCR 369): American decisions of limited use; blanket ban on demonstrations struck down. Followed (paras 18, 87-89).
• Indian Express Newspapers (Bombay) Private Limited v. Union of India ((1985) 2 SCR 287): American decisions help understand principles (para 19).
• American Communications Association v. Douds (94 L.Ed. 925): Jackson, J., thought control (para 20).
• The Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia ([1960] 2 SCR 821): proximate nexus with public order. The first Ram Manohar Lohia case, in para 86, struck down Section 3 of the U.P. Special Powers Act (paras 22, 33, 86, 88).
• Chintaman Rao v. The State of Madhya Pradesh ([1950] SCR 759), State of Madras v. V.G. Row ([1952] SCR 597), Mohd. Faruk v. State of Madhya Pradesh ([1970] 1 SCR 156) and Dr. N.B. Khare v. State of Delhi ([1950] SCR 519): meaning of reasonable restrictions (paras 23-26, 82).
• Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal ((1995) 2 SCC 161, paras 37 and 78): wider reach cannot restrict content (paras 29, 86).
• Brij Bhushan v. State of Delhi ([1950] SCR 605): order under East Punjab Public Safety Act void (para 31).
• Dr. Ram Manohar Lohia v. State of Bihar ([1966] 1 SCR 709): law and order, public order and security of the State (para 33).
• Arun Ghosh v. State of West Bengal ([1970] 3 SCR 288): public order test of disturbing the community's even tempo. Applied (paras 34-35).
• Schenck v. United States (63 L.Ed. 470) and Gompers v. Buck's Stove & Range Co. (221 US 418): clear and present danger (para 36).
• Terminiello v. City of Chicago (93 L.Ed. 1131 (1949); 337 US 1), Brandenburg v. Ohio (23 L.Ed. 2d 430 (1969); 395 US 444) and Virginia v. Black (155 L.Ed. 2d 535 (2003)): later use of the test (paras 37, 48).
• S. Rangarajan v. P. Jagjivan ((1989) 2 SCC 574, para 45): spark in a powder keg (para 38).
• State of Bihar v. Shailabala Devi ([1952] SCR 654): tendency to excite violence (para 39).
• Ramji Lal Modi v. The State of U.P. ([1957] SCR 860), Kedar Nath Singh v. State of Bihar (1962 Supp. (2) SCR 769) and Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte (1996 (1) SCC 130): provisions upheld only when read to require a tendency to public disorder (paras 40, 86).
• Ranjit Udeshi v. State of Maharashtra ([1965] 1 SCR 65), Director General, Directorate General of Doordarshan v. Anand Patwardhan (2006 (8) SCC 433) and Aveek Sarkar v. State of West Bengal (2014 (4) SCC 257): obscenity tests; Hicklin test abandoned (paras 45-46, 48).
• Director of Public Prosecutions v. Collins ((2006) 1 WLR 2223), Connolly v. Director of Public Prosecutions ([2008] 1 WLR 276) and Chambers v. Director of Public Prosecutions ([2013] 1 WLR 1833): English cases showing the vagueness of grossly offensive and menacing (paras 48, 79-82).
• Hustler Magazine, Inc. v. Falwell (485 US 46 (1988)): cited by the Additional Solicitor General (para 48).
• House of Lords Select Committee, 1st Report of Session 2014-2015, Social Media and Criminal Offences: cited by the Additional Solicitor General (para 48).
• Musser v. Utah (92 L.Ed. 562), Winters v. People of State of New York (92 L.Ed. 840), Connally v. General Construction Co. (269 US 385), Herndon v. Lowry (301 US 242) and Burstyn v. Wilson (96 L.Ed. 1098): US vagueness cases (paras 52-54).
• City of Chicago v. Morales (527 US 41 (1999)), United States v. Reese (92 US 214 (1875)) and Grayned v. City of Rockford (33 L.Ed. 2d 222): void for vagueness (paras 55-59).
• Reno v. American Civil Liberties Union (521 US 844 (1997)): Communications Decency Act provisions struck down; internet as a marketplace of speech (paras 60-62, 86).
• Federal Communications Commission v. Fox Television Stations (132 S.Ct. 2307), Papachristou v. Jacksonville (405 US 156), Lanzetta v. New Jersey (306 US 451) and United States v. Williams (553 US 285): fair notice (para 63).
• State of Madhya Pradesh v. Baldeo Prasad ([1961] 1 SCR 970): vague definition of goonda struck down (paras 64-65).
• K.A. Abbas v. The Union of India ([1971] 2 SCR 446) and Municipal Committee Amritsar v. The State of Rajasthan: vagueness is a ground under Indian law; the latter's contrary remark was obiter (paras 65, 95).
• Harakchand Ratanchand Banthia v. Union of India (1969 (2) SCC 166), A.K. Roy v. Union of India ([1982] 2 SCR 272) and Kartar Singh v. State of Punjab ((1994) 3 SCC 569, at its internal paragraphs one hundred thirty and one hundred thirty-one): laws struck down or read down for vagueness (paras 66-68).
• Madan Singh v. State of Bihar ((2004) 4 SCC 622), Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra ((2010) 5 SCC 246), State of M.P. v. Kedia Leather & Liquor Limited ((2003) 7 SCC 389) and State of Karnataka v. Appa Balu Ingale (1995 Supp. (4) SCC 469): cited by the respondent; distinguished (paras 77-78).
• R. Rajagopal v. State of T.N. ((1994) 6 SCC 632, para 19), New York Times v. Sullivan (376 US 254), Derbyshire County Council v. Times Newspapers Ltd. ([1993] 2 WLR 449) and Attorney General v. Guardian Newspapers Ltd. (No. 2) ([1990] 1 AC 109): chilling effect (para 84).
• The Collector of Customs, Madras v. Nathella Sampathu Chetty ([1962] 3 SCR 786) and Belfast Corporation v. O.D. Commission ([1960] AC 490): possibility of abuse; not accepted to save Section 66A (paras 91-92).
• R.M.D. Chamarbaugwalla v. The Union of India ([1957] SCR 930), State of Bombay v. F.N. Balsara ([1951] SCR 682) and State of Bombay v. United Motors (India) Ltd. ([1953] SCR 1069): severability; distinguished (para 95).
• A.S. Krishna v. State of Madras ([1957] SCR 399): pith and substance (para 104).
• Also cited in footnotes:
  • The history of Section 66A in the UK Post Office (Amendment) Act, 1935, the Post Office Act, 1953 (Section 66), the British Telecommunication Acts of 1981 and 1984 and Section 127 of the Communications Act, 2003.
  • Mark Antony's speech in Julius Caesar, as an example of the difference between advocacy and incitement, and the Ark of the Covenant.
  • The reformulated US test in Brandenburg and the true threats rule in Virginia v. Black and Watts v. United States (22 L.Ed. 2d 664).
• Names as spelt in the source text: Shreya Singhal vs U.O.I. (the title of this case); Kameshwar Prasad & Ors. v. The State of Bihar & Anr.; Brij Bhushan & Anr. v. State of Delhi; Abrams v. Unites States; Aveek Sarkar and Anr. v. State of West Bengal and Ors.; Musser v. State of Utah; Municipal Committee Amritsar and Anr. v. The State of Rajasthan; State of Madhya Pradesh and Anr. v. Baldeo Prasad; Khushboo v. Kanniammal; Romesh Thappar v. The State of Madras; and United States v. Williams.

Provisions mentioned

• Article 19(1)(a), Constitution: freedom of speech and expression.
• Article 19(2), Constitution: reasonable restrictions on eight subjects. These are sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation and incitement to an offence.
• Article 14, Constitution: equality; the challenge on intelligible differentia failed (paras 97-98).
• Articles 13, 19(1)(b), (d), (e), (g), 19(3), 19(5), 19(6) and 21, Constitution: severability; other freedoms in the cases cited; Article 21 was pleaded (paras 5, 64, 87, 93, 96).
• Articles 32 and 226, Constitution: the petitions are under Article 32; blocking orders can be challenged under Article 226 (paras 1, 109).
• Constitution First Amendment; Seventh Schedule, List I Entry 31, List II Entries 1 and 2, List III Entry 1: the addition of public order, and legislative competence for the Kerala Act (paras 32, 103-105).
• Sections 66A, 69A and 79, Information Technology Act, 2000: sending offensive messages; blocking; exemption of intermediaries.
• Sections 2(v), 2(za), 43 and 66, Information Technology Act, 2000: information; originator; computer offences (paras 20, 69-70, 108).
• Sections 66B, 66C, 66D, 66F, 67, 67A, 67B and 67C, Information Technology Act, 2000: stolen computer resources, identity misuse, cheating by personation, threats to the unity of India, and obscene material (para 71).
• Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, Rules 2(g), 3 to 10, 14 and 16: the blocking procedure (para 107).
• Information Technology (Intermediary Guidelines) Rules, 2011, Rule 3(2) and (4): due diligence by intermediaries (para 113).
• Section 118(d), Kerala Police Act: annoyance in an indecent manner; struck down (para 102).
• Sections 24, 25, 124A, 268, 294, 499, 505 and 510, Indian Penal Code: definitions and offences discussed (paras 40, 42, 69, 72-74, 100).
• Section 108-A, Section 120-B, Section 153-A, Section 153-B and Section 295-A, Indian Penal Code: offences for which Section 196 of the Code of Criminal Procedure needs previous sanction (para 100).
• Sections 95, 96, 133, 155(3), 196 and 199, Code of Criminal Procedure: seizure, nuisance, sanction and complaint safeguards (paras 78, 99-100).
• Section 195, Code of Criminal Procedure: referred to in the proviso to Section 196(2) (para 100).
• Section 123(3A), Representation of the People Act: enmity or hatred in elections, read down in Dr. Ramesh Yeshwant Prabhoo (para 40).
• Sections 4 and 4A, Goondas Act: struck down in Baldeo Prasad (para 64).
• Sections 26, 27 and 114, Gold Control Act: licensing conditions struck down in Harakchand Ratanchand Banthia (para 66).
• Section 3, National Security Ordinance: read down in A.K. Roy (para 67).
• Section 7, Punjab Maintenance of Public Order Act; Section 9(1)(a), Madras Maintenance of Public Order Act; Section 7, East Punjab Public Safety Act, 1949: struck down before the First Amendment (paras 30-31).
• Section 3, U.P. Special Powers Act; Rule 4-A, Bihar Government Servants Conduct Rules, 1956: struck down in the Lohia and Kameshwar Prasad cases (paras 86-89).
• Water (Prevention and Control of Pollution) Act, 1974; Maharashtra Control of Organised Crime Act: mentioned in cases the respondent cited (paras 77-78).
• Section 127, UK Communications Act, 2003; Section 223(d), US Communications Decency Act, 1996: foreign provisions compared (paras 60, 79).
• Section 10(2)(a), UK Post Office (Amendment) Act, 1935; Section 66, Post Office Act, 1953; Section 49, British Telecommunication Act, 1981: the earlier forms of the same offence, traced in a footnote.

Judgement

1. Section 66A of the Information Technology Act, 2000 is struck down in its entirety, being violative of Article 19(1)(a) and not saved under Article 19(2) (para 119).
2. Section 69A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 are constitutionally valid (para 119).
3. Section 79 is valid, subject to Section 79(3)(b) being read down. An intermediary that receives actual knowledge from a court order, or notification by the appropriate Government or its agency, that unlawful acts relatable to Article 19(2) are going to be committed must then fail to remove or disable access expeditiously (para 119).
4. The Information Technology (Intermediary Guidelines) Rules, 2011 are valid, subject to Rule 3(4) being read down in the same way (paras 118-119).
5. Section 118(d) of the Kerala Police Act is struck down, being violative of Article 19(1)(a) and not saved by Article 19(2) (para 119).
6. All the writ petitions are disposed of in these terms (para 119).
7. The judgment records no order on costs.

Legal Principle / Ratio

A law restricting speech can survive only if it falls within one of the eight subjects in Article 19(2) and is not vague or overbroad. Mere discussion or advocacy is protected, and only incitement can be restricted, with a proximate link to a ground in Article 19(2). Section 66A was "struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2)". The Court held that the possibility of abuse or an assurance of reasonable administration cannot save an invalid law.

Subsequent Treatment

Three later Supreme Court judgments refer to this case. Each is described only as its own text states.

Kaushal Kishor v. State of U.P. (State of Uttar Pradesh & Ors.), Writ Petition (Criminal) No. 113 of 2016 with Special Leave Petition (Diary) No. 34629 of 2017, Supreme Court of India (Constitution Bench), decided 3 January 2023. Bench: S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian and B.V. Nagarathna, JJ. The paragraphs cited below are from the judgment of Ramasubramanian, J.

• Use of the case. The judgment lists Shreya Singhal among the decisions on the freedom of speech, and says Nariman, J. highlighted the differences between the US First Amendment and Article 19(1)(a) read with Article 19(2) (para 12.6).
• Extracts. It reproduces paragraphs 15 and 17 of Shreya Singhal on those differences. An extract says that in India a law cannot pass muster in the interest of the general public and must be covered by one of the eight subjects in Article 19(2) (para 12.6).
• Section 66-A. It records that Section 66-A was struck down as violative of Article 19(1)(a) and not saved under Article 19(2), on the ground of vagueness and for not giving manageable standards or clear guidance (para 12.6).
• Vague laws. It adds that a law using vague expressions capable of misuse leaves persons in a boundless sea of uncertainty, and confers wide, unfettered powers on authorities to curtail speech arbitrarily (para 12.6).
• Later list. In a list of provisions, it notes that Section 66-A, which penalised information that is grossly offensive or menacing, was struck down in Shreya Singhal on the ground of, inter alia, vagueness (para 16.5).

Navtej Singh Johar v. Union of India, Writ Petition (Criminal) No. 76 of 2016, Supreme Court of India (Constitution Bench), decided 6 September 2018. Bench: Dipak Misra, C.J.I., A.M. Khanwilkar, R.F. Nariman, D.Y. Chandrachud and Indu Malhotra, JJ. Paragraph numbers below are per opinion.

• Misra, C.J.I., for himself and Khanwilkar, J. He says that in Shreya Singhal the Court, when it struck down Section 66A, observed that a provision that is vague and overbroad in criminalising protected speech and innocent speech has a chilling effect and is liable to be struck down (Misra, para 244).
• Extract. The opinion reproduces the passage of Shreya Singhal holding Section 66A unconstitutional on the ground that it takes within its sweep protected speech and innocent speech, and has a chilling effect on free speech (Misra, para 244).
• Nariman, J. He says that, as stated in his judgment in Shreya Singhal, the chilling effect of such a provision would also violate a privacy right under Article 19(1)(a). He adds that it cannot by any stretch be a reasonable restriction in the interest of decency or morality. He refers to paragraphs 87 to 94 of Shreya Singhal (Nariman, para 83).

Anuradha Bhasin v. Union of India, Writ Petition (Civil) No. 1031 of 2019 with Writ Petition (Civil) No. 1164 of 2019, Supreme Court of India, decided 10 January 2020. Bench: N.V. Ramana, R. Subhash Reddy and B.R. Gavai, JJ.

• Freedom of expression on the internet. The Bench distinguishes the internet as a tool from freedom of expression through the internet. It says the wider range of circulation of information cannot restrict the content of the right or justify its denial. It refers to Cricket Association of Bengal and Shreya Singhal for this (para 25).
• Section 69A. The Bench notes that in Shreya Singhal this Court upheld the constitutional validity of Section 69A of the Information Technology Act and the Rules made under it. It says the field of operation of the section is limited, and it aims to block access to particular websites, and not to restrict the internet as a whole (para 81).
• Use for shutdowns. It says the Government cannot use Section 69A to restrict the internet generally (para 81).

Critical Analysis

Analysis based on the judgment text.

The Court accepts a difference between the internet and other media, but holds that it does not lower the scrutiny. It holds that the features listed by the Additional Solicitor General justify separate offences. It then says they do not relax scrutiny of content restrictions. Where the line falls in future laws is left to the same tests.

Section 79 and Rule 3(4) survive by reading down. The Court reads the intermediary's actual knowledge as knowledge from a court order, or a Government notification for Section 79. It records that this avoids millions of requests being judged by intermediaries. The judgment does not address what happens to unlawful content that no order reaches.

Section 69A is upheld in a short discussion of safeguards. The Court finds it narrowly drawn, with recorded reasons, a hearing and review. It treats confidentiality and the absence of Sections 95 and 96 as not fatal. The judgment does not examine how the safeguards work in practice.

Significance

• The Court made discussion, advocacy and incitement the three concepts that mark the reach of Article 19(1)(a).
• It struck down Section 66A as vague, overbroad and outside Article 19(2).
• It gave the chilling effect a role in testing a criminal law on speech.
• It held that a law cannot be saved by promises of fair administration, since successor Governments are not bound.
• It read down the intermediary liability provisions so that takedown duties arise on a court order or a Government notification.

Exam-Important Points

• Facts in one line: writ petitions under Article 32 challenged Section 66A of the IT Act, together with Sections 69A and 79 and Section 118(d) of the Kerala Police Act.
• Rule: discussion and advocacy are protected. Only incitement can be restricted, and only if it has a proximate link to a subject in Article 19(2).
• Test for public order: whether an act disturbs the current life of the community, or merely affects an individual.
• Trap: annoyance, inconvenience, insult, gross offensiveness and menace are not among the eight subjects in Article 19(2).
• Trap: the Article 14 challenge failed. There is an intelligible differentia between speech on the internet and other media.
• Trap: Section 66A is not severable. Section 69A and the 2009 Rules are valid. Section 79(3)(b) and Rule 3(4) are read down to knowledge from a court order, or a Government notification for Section 79.
• Trap: the procedural unreasonableness argument was not decided.
• Result: no order recorded on costs.

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.