SHREYA SINGHAL v. UNION OF INDIA

Judgment

5 S.C.R. 963 SHREYA SINGHAL v. UNION OF INDIA (Writ Petition (Criminal) No. 167 of2012 etc.) MARCH 24, 2015 [J. CHELAMESWAR AND R. F. NARIMAN, JJ.] ....... .,.....,.""'-.. A B • 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 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). D 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 of Art. 14 - Constitution oflndia, 1950-Art. 14. F s. 69A and Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) 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 G 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, 1973- ss. 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. G s. 118 - Constitutional validity of - Held: s. 118 suffers from 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 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. ' G H 966 SUPREME COURT REPORTS [2015] 5 S.C.R. A Whitney v. California 71 L. Ed. 1095; Chaplinsky v. New Hampshire 86 L. Ed. 1031 - referred to. B C

2.1 Section 66A has been challenged on the ground that it casts the net very wide - "all information" that is disseminated over the internet is included within its reach. 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 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] [996- C-F] SHREYA SINGHAL v. UNION OF INDIA 967 American Communications Association v. Douds 94 L. Ed. 925 - referred to. A

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 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] [1005- D-F; 1002-E] F 0 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 (1960) 2 S.C.R. 821; Chintaman Rao Manohar Lohia 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 SUPREME COURT REPORTS [2015] 5 S.C.R. A S.C.R. 156; Dr. N. B. Khare v. State of Delhi (1950) to. S.C.R. 519 - referred C B

3.3 Section 66A is intended to punish any person who uses the internet to disseminate any information that falls within the sub-clauses of Section 66A. The recipient of the written word that is sent by the person who is accused of the offence is not of any importance so far as this Section is concerned. (Save and except where under sub-clause (c) the addressee or recipient is deceived or misled about the origin of a particular message.). 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; 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. G 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] 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 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. 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. B C o E

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 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 B inconvenience, danger etc., or being grossly offensive or having a menacing character are not offences under the Penal Code at all. They may be ingredients of certain offences under the Penal Code but are not offences in themselves. For these reasons, Section 66A has nothing to do with "incitement to an offence". [Para 44] [1017-D F]

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] [1018- H; 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 In S9ction 294, the Sections 294 and 510 of the IPC. 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 SUPREME COURT REPORTS [2015) 5 S.C.R. A and vague language. [Paras 73 and 74] [1042-G; 1043-E F]

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.