2015 (3) TMI 814 - SC - Indian Laws

Validity of Sec.69A and information technology rules 2009 - Validity of Section 118 (d) of the Kerala Police Act - Held that - The Preamble of the Constitution of India inter alia speaks of liberty of thought, expression, belief, faith and worship. It also says that India is a sovereign democratic republic. It cannot be over emphasized that when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme. - Section 66A of the Information Technology Act,2000 held unconstitutional - Against the fundamental right of free speech and expression guaranteed by Article 19(1)(a) of the Constitution of India - Not saved under Article 19(2). It is significant to notice first the differences between the US First Amendment and Article 19(1)(a) read with Article 19(2). The first important difference is the absoluteness of the U.S. first Amendment - Congress shall make no law which abridges the freedom of speech. Second, whereas the U.S. First Amendment speaks of freedom of speech and of the press, without any reference to expression , Article 19(1)(a) speaks of freedom of speech and expression without any reference to the press . Third, under the US Constitution, speech may be abridged, whereas under our Constitution, reasonable restrictions may be imposed. Fourth, under our Constitution such restrictions have to be in the interest of eight designated subject matters - that is any law seeking to impose a restriction on the freedom of speech can only pass muster if it is proximately related to any of the eight subject matters set out in Article 19(2). The real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language permitting, the construction sought to be placed on it, must be in accordance with the intention of the legislature. Thus if the law is open to diverse construction, that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the Goonda Act. This is not application of the doctrine of due process. The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases. In this case, it is the converse proposition which would really apply if the learned Additional Solicitor General s argument is to be accepted. If Section 66A is otherwise invalid, it cannot be saved by an assurance from the learned Additional Solicitor General that it will be administered in a reasonable manner. Governments may come and Governments may 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 be administered. It has been held by us that Section 66A purports to authorize the imposition of restrictions on the fundamental right contained in Article 19(1)(a) in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action. We have held following K.A. Abbas case 1970 (9) TMI 104 - SUPREME COURT that the possibility of Section 66A being applied for purposes not sanctioned by the Constitution cannot be ruled out. It must, therefore, be held to be wholly unconstitutional and void. The present being a case of an Article 19(1)(a) violation, Romesh Thappar s judgment 1950 (5) TMI 23 - SUPREME COURT would apply on all fours. In an Article 19(1)(g) challenge, there is no question of a law being applied for purposes not sanctioned by the Constitution for the simple reason that the eight subject matters of Article 19(2) are conspicuous by their absence in Article 19(6) which only speaks of reasonable restrictions in the interests of the general public. The present is a case where, as has been held above, Section 66A does not fall within any of the subject matters contained in Article 19(2) and the possibility of its being applied for purposes outside those subject matters is clear. We therefore hold that no part of Section 66A is severable and the provision as a whole must be declared unconstitutional. It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision with several safeguards. First and foremost, blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do. Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution. However, what has been said about Section 66A would apply directly to Section 118(d) of the Kerala Police Act, as causing annoyance in an indecent manner suffers from the same type of vagueness and over breadth, that led to the invalidity of Section 66A, and for the reasons given for striking down Section 66A, Section 118(d) also violates Article 19(1)(a) and not being a reasonable restriction on the said right and not being saved under any of the subject matters contained in Article 19(2) is hereby declared to be unconstitutional. Conclusion - Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2). - Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid. - Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2.

Summary

Issues Involved:
1. Constitutionality of Section 66A of the Information Technology Act, 2000.
2. Constitutionality of Section 69A of the Information Technology Act, 2000 and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.
3. Constitutionality of Section 79 of the Information Technology Act, 2000 and the Information Technology (Intermediary Guidelines) Rules, 2011.
4. Constitutionality of Section 118(d) of the Kerala Police Act, 2011.

Detailed Analysis:

1. Constitutionality of Section 66A of the Information Technology Act, 2000:
Article 19(1)(a) - Freedom of Speech and Expression:
- Section 66A was challenged on the grounds that it infringes the fundamental right to free speech and expression. The petitioners argued that the terms used in Section 66A such as "grossly offensive," "menacing," "annoyance," "inconvenience," etc., are vague and undefined, leading to arbitrary enforcement and a chilling effect on free speech.
- The court noted that the terms used in Section 66A are indeed vague and undefined, leading to a lack of clarity for both the accused and the authorities. This vagueness results in arbitrary and discriminatory application of the law, violating the principle of reasonable restrictions under Article 19(2).

Article 19(2) - Reasonable Restrictions:
- The court examined whether Section 66A could be justified under any of the eight subjects covered in Article 19(2). It concluded that the terms used in Section 66A do not have a proximate relation to any of these subjects, such as public order, defamation, incitement to an offence, or decency or morality.
- The court emphasized that the restrictions on free speech must be narrowly tailored and directly related to the subjects mentioned in Article 19(2). Since Section 66A fails to meet this criterion, it cannot be saved under Article 19(2).

Vagueness and Overbreadth:
- The court highlighted that the language used in Section 66A is so vague that it does not provide clear guidance on what constitutes an offence. This vagueness leads to arbitrary enforcement and a chilling effect on free speech.
- The court also noted that the overbroad nature of Section 66A captures a wide range of protected speech, making it unconstitutional.

Severability:
- The court rejected the argument of severability, stating that Section 66A cannot be partially upheld as it is inseverable and wholly unconstitutional.

Conclusion:
- Section 66A of the Information Technology Act, 2000, is struck down in its entirety as it violates Article 19(1)(a) and is not saved under Article 19(2).

2. Constitutionality of Section 69A of the Information Technology Act, 2000 and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009:
- Section 69A provides the Central Government the power to block public access to any information through any computer resource if it is necessary in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign States, public order, or for preventing incitement to the commission of any cognizable offence.
- The court noted that Section 69A is a narrowly drawn provision with several safeguards, including the requirement for reasons to be recorded in writing and procedural safeguards provided by the 2009 Rules.
- The court upheld the constitutionality of Section 69A and the 2009 Rules, stating that they are not constitutionally infirm.

3. Constitutionality of Section 79 of the Information Technology Act, 2000 and the Information Technology (Intermediary Guidelines) Rules, 2011:
- Section 79 provides exemption from liability for intermediaries if they observe due diligence and follow guidelines prescribed by the Central Government.
- The court read down Section 79(3)(b) to mean that an intermediary must act upon receiving 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.
- The court also read down Rule 3(4) of the 2011 Rules to mean that the knowledge spoken of must be through the medium of a court order.
- With these modifications, the court upheld the validity of Section 79 and the 2011 Rules.

4. Constitutionality of Section 118(d) of the Kerala Police Act, 2011:
- Section 118(d) penalizes causing annoyance to any person in an indecent manner by statements, verbal comments, telephone calls, or messages.
- The court noted that the terms used in Section 118(d) suffer from the same vagueness and overbreadth as Section 66A, leading to arbitrary enforcement and a chilling effect on free speech.
- The court struck down Section 118(d) as it violates Article 19(1)(a) and is not saved by Article 19(2).

Conclusion:
- Section 66A of the Information Technology Act, 2000, is struck down as unconstitutional.
- Section 69A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, are upheld as constitutionally valid.
- Section 79 of the Information Technology Act, 2000, and the Information Technology (Intermediary Guidelines) Rules, 2011, are upheld with modifications.
- Section 118(d) of the Kerala Police Act, 2011, is struck down as unconstitutional.