X CORP v. UNION OF INDIA

challenged is, on the face of it arbitrary, as the taking down orders are done at the whim and fancy of officers. 24

7.2. The learned senior counsel would submit that whether American jurisprudence has developed after RENO or RENO is not followed later, is of no consequence. The Apex Court, in the case of SHREYA SINGHAL, has considered all that. What is binding is the judgment of the Apex Court in the case of SHREYA SINGHAL and not what the American Supreme Court holds in RENO or its aftermath. The learned senior counsel would further add that Section 69A, which is affirmed by the Apex Court, is a complete code by self. It has detailed procedure as to how a blocking order should be passed. The procedure is envisaged under the 2009 Rules. Those Rules are still in subsistence, as they are blocking orders.

7.3. The blocking is permitted under the Blocking Rules. Section 79 therefore, must be read along with Section 69A, as Section 69A is affirmed in the case of SHREYA SINGHAL and Section 79 was directed to be read with Section 69A. It was saved from declaring unconstitutional. He would therefore, contend that following the judgment of SHREYA SINGHAL and KUNAL KAMRA, this Court has to strike down Rule 3(1)(d), which arrogates to itself 25 a power that is not envisaged under the Act, as it is settled principle of law that the Rules cannot traverse beyond the Act.

8.1. The learned senior counsel Dr. Aditya Sondhi appearing for the intervening applicants would, by way of rejoinder submissions, support the contentions of the learned senior counsel Sri K.G. Raghavan, but would contend that Article 19 if not available to the petitioner, it is undoubtedly available to the intervening applicants, as they are engaging in protected speech under Article 19(1)(a) and have the freedom to practice any profession under Article 19(1)(g) of the Constitution of India. The only permissible ground to restrict protected freedom of speech is under Article 19(2) of the Constitution and such restrictions must be laid down by law and ought to be proportionate.

8.2. The learned senior counsel would contend, circumvention of Section 69A and the use of Section 79 of the IT Act to issue take down requests to the intermediary is, on the face of it, contrary to the judgment in the case of SHREYA SINGHAL, as Section 69A has procedural safeguards, but Section 79 has no 26 procedural safe guard. Therefore, it falls foul of Article 14 of the Constitution of India, as without procedural safeguard, it becomes an arbitrary action.

9. Having bestowed my anxious consideration upon the submissions made by the respective learned senior counsel and have perused the material on record. In furtherance whereof, the following issues emerge for an answer: (i) Whether the march of human civilization – from the days of yore to the present digital age – has ever witnessed information and communication in an unregulated state; or whether regulation has been its constant companion across epochs? (ii) Whether the regimes of regulation that prevailed in earlier times continue to subsist, both in the local context of our polity and in the global order of nations? (iii) Whether the right to free speech, as enshrined under Article 19(1)(a) of the Constitution of India, is an unbridled entitlement, or whether it stands hedged by the canopy of reasonable restrictions as embodied in Article 19(2)? (iv) Whether the jurisprudential edifice of the United States of America can be transplanted, without reservation or adaptation, into the soil of Indian constitutional thought? (v) Whether there has been a discernible shift in American judicial philosophy in the aftermath of 27 the celebrated decision in RENO v. ACLU, and if so, comparative jurisprudence? to what effect (vi) What were the Rules that fell for consideration before this Court in SHREYA SINGHAL v. UNION OF INDIA, and whether, in the contemporary context the Rules now occupying the field are materially distinct, thus demanding a fresh interpretative lens? (vii) Whether the present challenge to the Rules, or their constitutionality, is vitiated by alleged vagueness, or whether the Rules withstand the test of clarity and definiteness in law? (viii) Whether the fundamental rights guaranteed under Part-III of the Constitution are to be citizen-centric, or regarded as essentially whether they extend in their sweep to all persons? (ix) Whether the Sahyog Portal, envisaged under the Information Technology Act is ultra vires the parent enactment, or whether it stands as a legitimate instrument in aid of statutory purpose? (x) In the contemporary digital milieu, where algorithms flow of information, its autonomy eclipse the guiding hand of human agency - myth or reality? increasingly shape (xi) Whether the menace of social media needs to be curbed and regulated? 28 CONSIDERATION - SYNTHESIS: The questions raised in this petition, cannot be considered in isolation. They lie at a confluence of history, technology and constitutionalism. Therefore, to appreciate the foundation of the submissions – free speech in this digital epoch, it is imperative to cast a backward glance at the genenis, journey of information and communication. ISSUE NO.1: (i) Whether the march of human civilization – from the days of yore to the present digital age – has ever witnessed information communication unregulated state; or whether regulation has been its constant companion across epochs? THE HISTORICAL DEVELOPMENT OF INFORMATION AND COMMUNICATION:

10.1. The controversy before this Court finds its roots in the eternal triad of information, communication and creation and in the modern era, the platform that gives breath to the creator’s voice – the intermediary. To truly grasp its 29 essence, one must voyage back, through the grand tapestry of history, tracing the arc of humanity’s endeavour to connect, to converse and to convey thought. From the whisper of voices in antiquity to the pulsating networks of internet, communication has been the beating heart of civilization varying and improving from time to time. FROM MESSENGERS TO THE POSTAL AGE:

10.2. The earliest chronicles of organized communication takes us to the 6th Century BC, when the Persian Empire of Cyrus with its mounted couriers and roadside post houses wove together distant lands through relays of speed and endurance. Rome, in its march from city to the State of Empire constructed an intricate web of military and administrative exchanges, binding together the farthest frontiers in its dominion. Commerce in the middle ages with its caravans and trading fleets demanded correspondence that leapt across borders, planting the seeds of international trade. This long march of progress culminated in postal reforms of 1874 and 1875 whereupon the General Postal Union, subsequently renamed as the Universal Postal Union, was born, erecting for the first time 30 an international framework – a global covenant of correspondence. This is on the international arena.

10.3. India too, traced her own tale. The roots of the postal system here, reached back to 1764 to 1766, yet communication had flourished in her soil from the Mauryan age itself, through countless centuries of innovation. In the dawn of civilization, it was the spoken word that reigned supreme – knowledge flowing not from ink, but from memory, tradition and discourse. The invention of printing press in the 15th century shattered this dominion, scattering words across continents, as print began to travel farther than voice had ever dared. THE AGE OF TELEGRAPH, RADIO AND TELEVISION:

10.4. The 19th century heralded the telegraph, shrinking distances, compressing time. The 20th century added radio and television. Thus, began the era of newspapers which were being printed almost daily starting from the 1700s, where people were able to track every day events due to daily distribution of newspapers. This led to electronic telegraph system developed in 31 the early 1800s. The telegraph enabled people to send their messages using Morse code. At the time when telegraph was picking up to become indispensable, telephone comes to be invented by Alexander Graham Bell in 19th Century and making long distance voice conversation possible, a revolutionary step in communication. From the telephone, began invention of radio and television, which made the dissemination of information faster than the previous modes of communication. THE LANGUAGE OF CODE AND LIGHT:

10.5. It is not that digital communication was not available before the internet. The printing telegraph was a method of digital communication which required a pair of wires. Morse telegraph was the most reliable of the telegraph system, as the Morse code allowed an operator to press a key to send a signal over the telegraph wires. This goes on upto 1901, when codes were changed and messages were allowed to be typed out in advance and transmitted through machine significantly, faster than an operator could type. When things stood thus, people were getting acquainted to the development of technology from the ancient days towards 32 modern days internet, technology comes to the fore. A semaphore system was brought in place. The system was a method of visual signaling, usually by means of flags or lights. THE BIRTH OF THE INTERNET:

10.6. Then arose a creation, unlike any before: The ARPANET. Conceived in the crucible of military research by the United States Department of Defence, it was a network designed not to fall even if fracture. Based upon this network progress happens, linking of Universities and Laboratories in the 1970’s and the 1980’s. As a result of which, nurturing of brotherhood of scientists sharing knowledge across the invisible threads of innovation. From this cradle emerged the TCP/IP protocol crafted by Vinton Cerf and Robert Kahn which emerged as a true “network of networks” and with it began the digital age. Soon after, history records that a single marketer sending the first unsolicited message across ARPANET, inaugurated what we now know as digital marketing – the prelude to an era where information would cascade boundlessly across the globe. 33

10.7. On the 1st day of January, 1983, a quiet yet a monumental transformation took place. ARPANET embraced wholly the TCP/IP protocol, an Act that has since been immortalized as the official birth of the modern internet. With that moment, the myriad pulses of information found a common rhythm and mankind stepped into a new epoch, the dawn of global digital communication. THE COMING OF DOMAINS:

10.8. Yet the internet, though alive, did not have a language of its own, a means to make its vastness comprehensible to the human mind. Between 1983 to 1985, this language took its form in the Domain Name System (DNS). Thus were born the first familiar sign spots: .com, org. and .edu making the usage of internet more user friendly. These suffixes made the addresses intelligible to ordinary users. In the annals of history, the very first to bear such name was symbolics.com, a public domain. As these domains flourished, ARPANET once a proud pioneer, slowly dimmed and was at last de-commissioned, passing its torch to the modern internet. 34 THE WORLD WIDE WEB – WWW:

10.9. While the foundations were being laid, another dream stirred the heart of visionaries, the World Wide Web, bound by delicate threads of hyperlinks. In the year 1991, the world wide web was released to public, enabling people to share and access documents and websites through a standardized system. A browser by name Mosaic browser comes to be introduced as the first web browser in United States of America. Just a handful of years later, Google emerged in the year 1998. Wikipedia emerges in 2001, a boundless library, authored by hands of many. Yet even then, the social media, as we know now, remained unborn waiting for its own hour to arrive. THE RISE OF FACEBOOK:

10.10. In 2004, out of the dormitories of Harvard, emerged Facebook, a social network, conceived for students, but distinct for the world. If Wikipedia, had democratized knowledge, Facebook democratized connection. 35 THE REVOLUTION OF YOUTUBE:

10.11. A year later, in 2005 came another marvel – YouTube, the great amphi-theater of the digital age. For the first age, the moving image once confined to cinema halls and television sets, became a shared experience across borders, cultures, languages. THE AGE OF APPS - WHATSAPP, INSTAGRAM AD SNAPCHAT:

10.12. The swift ascent of Facebook and YouTube paved the way to newer modes of expression. Between 2008 and 2011 WhatsApp, Instagram and Snapchat emerged, the platforms for instant messaging, visual story telling and fleeting moments. Even then, the devices in our hands had not yet reached their modern brilliance. The true smart phone revolution was still afoot, but with every leap forward, came the inevitable counterpart: THE HAND OF LAW. Just as Kings and Parliaments of the old regulated the messenger, the post, the press, so too did Governments. The boundless power of the communication since ages, has never been beyond governance. The communication has always been the 36 harbinger of freedom, and the subject of order. It has been regulated from the days of yore to the present day. INTERNET IN INDIA: EDUCATIONAL RESEARCH NETWORK – ERNET:

10.13. In the global narrative, the dawn of the internet in India can be rightly traced to the year 1986. The seed was sown through ERNET, a visionary collaboration between the Department of Electronics of the Government of India and the United Nations Development Programme. The ERNET gave rise to the internet, which was brought to India by the Videsh Sanchar Nigam Limited, VSNL which brought internet in India. Since then, the usage of internet, taking cue from the technological developments in India, has evolved. Since those early days, the trajectory of growth has mirrored the march of technological advancement across the globe. Today, in a nation of 140 crores, no fewer than 97 crores stand as subscribers to the internet. Only a slender fraction remains untouched, comprise largely of children and those yet to come of 37 age. Thus, the sweep of the internet which has encircled the globe has weaved itself into the fabric of daily life.

10.14. The rise of this medium, heralded by speed of light carrying information, ideas and commerce across continents has not been without the steadying hand of regulation from time to time, the State has felt compelled to step in, to guide to safeguard and balance the forces unleashed by its digital revolution. It is therefore, apposite to examine whether the tide of information and communication, in any nation, particularly of the United States of America has left the flow unchecked or whether it, too was subject to the rigours of law. In the light of the preceding analysis, what would unmistakably emerge is, every nation has grappled in its own way with the challenges posed by this new medium and each State has thought it fit to erect a regulatory framework befitting its circumstances. I, therefore, answer the issue holding that development of information and communication, from time to time, nation to nation, have always been regulated through regulatory frameworks. 38 ISSUE NO.2: (ii) Whether the regimes of regulation that prevailed in earlier times continue to subsist, both in the local context of our polity and in the global order of nations? REGULATORY REGIME IN UNITED STATES OF AMERICA:

11.1. The story of communication in the United States begins not with the internet, but with a humble post – postal services introduced in 1792. It was regulated by the Postal Service Act of 1792, which laid the first foundation of regulated communication in the young republic that was born on 1775. This became necessary, as between 1755 to 1775, Benjamin Franklin was overseeing the colonial postal services and in 1775 after the American independence, the courier services were introduced in the newly formed 13 Colonies of United States of America. In 1787, the US Constitution gave Congress, the power to create official post offices and post roads. What began with letters soon advanced to Telegraph and in 1866, the Telegraph Act was enacted to address inefficiencies and monopolistic practices of the dominance of western union. The Act, thus, was brought into foster competition 39 and drive away monopoly. This is the second regime of regulation.

11.2. As the communication advanced, so too did the framework of law. Therefore, to control the communication or the mode of communication through telegraph and telephone, the Mann-Elkins Act, 1910 was brought into force. This was the amendment to Interstate Commerce Act, 1887, to regulate transport and communication including telegraph, telephone and cable companies sending messages from one State to another. The Communication Act was brought into effect in the United States of America in 1934 called the Communications Act, 1934 establishing a Federal Communications Commission, independent United States agency responsible for the regulation of interstate and foreign communication by radio, television, wire and now satellite. This was an umbrella, under which Radio Act, 1912 and 1927 were also included under the Act. Therefore, the Communications Act, 1934 regulated, what was communicated to interstates and foreign countries by radio, television, wire or satellite, which clearly indicates that any mode of communication or 40 spread of information was never left unregulated in the United States of America.

11.3. By the 1970s, the march of regulation turned towards the citizen’s right to privacy. The Privacy Act of 1974 placed limits on federal agencies ensuring that personal data could not be collected without consent, save for narrow exceptions, such as, census and statistical purposes. For the first time now, United States formally recognized individual’s right to privacy as against the State. A decade later, comes in a Cable Communications Policy Act, 1984. The Act established a national policy for regulation of cable communication, televisions by federal States or local authorities.

11.4. The watershed moment came in 1996, when President Bill Clinton signed into law, the Telecommunications Act, the most sweeping overhaul of communication since 1934. The Act was conceived in an era of rapid technological innovation, its purpose was to loosen restrictions, foster competition and connect classrooms to the internet. Yet with few freedoms, came new 41 anxieties. The spread of obscene and indecent content online. With this comes the Communications Decency Act, criminalizing display of offensive material to minors while shielding online intermediaries from liability for third party content. Its fate, however, was tested in RENO where, the Supreme Court struck down portions of the Communications Decency Act, as being violative of its first amendment.

11.5. Then comes the Uniting and Strengthening America by Providing Appropriate Tools to Intercept Terrorism Act, 2001 (USA PATRIOT Act), which instilled surveillance and was applicable to any mode of communication. The core purpose was to deter terrorism, expand law enforcement investigatory abilities. In 2006, Internet Freedom and Non-discrimination Act comes in, by amending the age-old Sherman Act, 1890 and the Clayton Act, of

1914. In 2010, an FCC open internet order to regulate broad band and ISP services comes in, which is replaced by FCC Open Internet Order 2015 and is further replaced by subsequent orders. 42

11.6. In 2023, the United States brings in Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN-IT) Act to eliminate abusive and rampant misuse of interactive Technologies. The Act brings in, a federal frame work in prevention of online sexual exploitation of children. The United States later regulates Broadband and ISPs, by notifying an Open Internet Order of 2024, which sought to control exploitation by immobilizing technological deepfakes on websites and networks. The Open Internet Order ceased to exist on account of a judgment rendered by the American Court. Later, what is in place in 2025, is the Tools to Address Known Exploitation by Immobilizing Technological Deepfakes on Websites and Networks, 2025 (TAKE IT DOWN Act), encompassing under its canopy, all social media networks or Apps like Facebook, Instagram and the petitioner/X Corp, as they are all public facing online platforms.

11.7. The purport of ‘TAKE IT DOWN Act’ is plain to shield dignity and to prevent exploitation in the digital public square and to criminalize non-consensual intimate imagery and seeking to govern the ungoverned expanse of cyberspace, as law and morality 43 could not be exiled. Thus, from the Postal Services Act of 1792 to the TAKE IT DOWN Act, of 2025, the history of the United States demonstrates that no mode of communication, whether post, telegraph, telephone, radio, television, cable or internet – has ever been left wholly unregulated.

11.8. Other nations, particularly, within the European Union have similarly erected their own regime to confront misinformation and malicious online content, yet, I have dwelt at length upon the American experience for the petitioner before this Court is a Corporation incorporated in the United States, which now seeks to take refuge under the banner of unbridled freedom, the record however, reveals a different story – that even in its home land the spread of information has never tempering hand of law and notwithstanding the same, it is wanting to cry foul of the regulatory regime in this country. 44 THE INDIAN SCENARIO – REGULATORY REGIMES:

11.9. India, it must be said, was never a laggard in the field of regulation. At every stage, in the march of communication, whether through print, radio, telegraph till the digital media, the State has kept a watchful eye, ensuring that spread of information was never left to a free for all. For clarity, I deem it appropriate to divide this narrative category-wise: HISTORY OF THE REGULATIONS GOVERNING PRINT MEDIA: • 1799 - Censorship of Press Act, 1799. • 1823 - Licensing Regulations, 1823. • 1835 - Press Act or Metcalfe Act, 1835 • 1857 - Licensing Act, 1857. • 1867 - The Press and Registration of Books (PRB) Act, 1867 • 1878 - Vernacular Press Act,1878 • 1908 - Newspaper (Incitement to Offence) Act, 1908 • 1910 - Indian Press Act, 1910 • 1931 - Indian Press (Emergency Powers) Act, 1931 • 1956 - Registration of Newspapers (Central) Rules, 1956 CURRENT ACTS AND REGULATIONS GOVERNING PRINT MEDIA: • Press and Registration of Periodicals (PRP) Act, 2023 • Press Council of India Act, 1978 • Central Media Accreditation Guidelines, 2022 45 In the broadcasting communication, the following were the regulatory regimes: HISTORY OF THE RADIO AND THE REGULATORY FRAMEWORK: • 1930 - Indian Broadcasting System – Established by the Government • 1936 – Renamed as All India Radio (AIR) • 1937 - Central News Organization(CNO) • 1990 - Prasar Bharati Act, 1990. Terrestrial radio services can be divided into two main categories, namely, AM Radio and FM Radio. In the communication sector, they are specifically regulated by several enactments from time to time. They are – REGULATORY FRAMEWORK OF THE COMMUNICATIONS SECTOR: • The Indian Telegraph Act, 1885 (The Telegraph Act) • The Indian Wireless Telegraphy Act, 1933 (The Wireless Act) • National Telecom Policy 1994 • The Telecom Regulatory Authority of India (TRAI) Act 1997 (the TRAI Act). • New Telecom Policy, 1999 • National Telecom Policy, 2012 • National Digital Communications Policy 2018 (the NDCP 2018) • Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016. 46 With the growth of television, media, OTT etc. the regulatory regime is as follows: REGULATORY FRAMEWORK: • The Cinematograph Act, 1952. • Cable Television Network Rules, 1994 (Programme Code, Advertising Code) • Cable Television Networks Act, 1995 (Cable TV Act) • Guidelines for Uplinking and Downlinking of Satellite Television Channels in India, 2022 • Draft Broadcasting Services (Regulations) Bill, 2023. The present case does not turn upon these particular enactments, yet they have been recited to illustrate a larger truth; that in India, as elsewhere, the flow of information has never been left unregulated. From the press of the colonial era, to the digital platforms today, there has always existed a framework of law to temper liberty with responsibility, freedom with accountability. I thus, answer the second issue, holding that regulatory regimes subsisted, are subsisting both locally and globally. There is no nation that has left flow of information, wholly unregulated. 47 ISSUE NO.3: (iii) Whether the right to free speech, as enshrined under Article 19(1)(a) of the Constitution of India, is an unbridled entitlement, or whether it stands hedged by the canopy of reasonable restrictions as embodied in Article 19(2)? ARTICLE 19 – CONSTITUTION OF INDIA:

12.1. We are a nation governed under the majesty of Constitution of India, and within its framework lie the guarantees that secure liberty to the citizen, yet those guarantees are not absolute, they are accompanied by the tempering hand of reasonable restriction. The foremost of these liberties are housed in Article 19. Article 19 of the Constitution of India reads as follows: - “19. Protection of certain rights regarding freedom of speech, etc.—(1) All citizens shall have the right— (a) (b) (c) (d) (e) to freedom of speech and expression; to assemble peaceably and without arms; to form associations or unions or co-operative societies; to move freely throughout the territory of India; to reside and settle in any part of the territory of India; and 48 (f) (g) * * * to practise any profession, or to carry on any occupation, trade or business. (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. (3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or] public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or] public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,— 49 (i) (ii) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.” Thus, Article 19 has 6 distinct protections. Article 19(1)(a) guarantees freedom of speech and expression. The other articles guarantee different freedoms, they are not germane for the issue in the lis. Article 19(2) imposes a limitation upon all the 6 freedoms, even to the fulcrum of the present lis, the freedom of speech and expression. It becomes necessary to notice that Article 19(2) was not always cast in the language we know today. At the dawn of republic, on 26th November 1949, when the Constitution was adopted and on 26th January 1950, when it came into force, the provision stood in this form. ORIGINAL (PRE-AMENDMENT) TEXT: “(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which 50 offends against decency or morality or which undermines the security of, or tends to overthrow, the State. In contrast, the current text, as amended by the Constitution (First Amendment) Act, 1951 reads as follows: POST-AMENDMENT TEXT: “(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.” The transformation is evident, from a narrow catalogue of exceptions the scope was broadened to include sovereignty and integrity, friendly relations with foreign states, public order and incitement to offence, while also framing the power of the State within the doctrine of reasonable restriction. PRELUDE TO THE FIRST AMENDMENT:

12.2. The shift was not incidental. It was born of judicial interpretation, in the first 15 months of the Constitution’s working. The Statement of Objects and Reasons appended to the Constitution (First Amendment) Bill, 1951 records this context: 51 “STATEMENT OF OBJECTS AND REASONS During the last fifteen months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements specially in regard to the chapter on fundamental rights. The citizen's right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom. The citizen's right to practise any profession or to carry on any occupation, trade or business conferred by article 19(1)(g) is subject to reasonable restrictions which the laws of the State may impose "in the interests of general public". While the words cited are comprehensive enough to cover any scheme of nationalisation which the State may undertake, it is desirable to place the matter beyond doubt by a clarificatory addition to article 19(6). Another article in regard to which unanticipated difficulties have arisen is article 31. The validity of agrarian reform measures passed by the State Legislatures in the last three years has, in spite of the provisions of clauses (4) and (6) of article 31, formed the subject-matter of dilatory litigation, as a result of which the implementation of these important measures, affecting large numbers of people, has been held up. The main objects of this Bill are, accordingly to amend article 19 for the purposes indicated above and to insert provisions fully securing the constitutional validity of zamindari abolition laws in general and certain specified State Acts in particular. the opportunity has been taken to propose a few minor amendments to other articles in order to remove difficulties that may arise. It is laid down in article 46 as a directive principle of State policy that the State should promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice. In order that any special provision that the State may make for the educational, economic or social advancement of any backward class of citizens may not be challenged on the ground of being discriminatory, it is 52 proposed that article 15(3) should be suitably amplified. Certain amendments in respect of articles dealing with the convening and proroguing of the sessions of Parliament have been found necessary and are also incorporated in this Bill. So also a few minor amendments in respect of articles 341, 342, 372 and 376.” (Emphasis supplied) Thus, the statement makes it clear that the amendment was propelled by the judgments of the Apex Court. I, therefore, deem it appropriate to notice the judicial backdrop to the aforesaid amendment. The immediate catalyst lay in two constitution bench judgments of the Apex Court in the cases of ROMESH THAPPAR supra and BRIJ BHUSHAN v. STATE OF DELHI5. In the decision of ROMESH THAPPAR supra the Apex Court holds as follows: “12. We are therefore of the opinion that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of Article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. It follows that Section 9(1-A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause (2), and is therefore void and unconstitutional.” (Emphasis supplied) 5 1950 SCR 605 53

12.3. In the backdrop of the judgments, on 12th May 1951, Former Prime Minister Pandit Jawaharlal Nehru moved the First Amendment Bill in the Parliament seeking to amend Article 19(2) of the Constitution of India and thereby harmonize liberty, with order. The constituent assembly debates of the day is germane to be noticed. “THE DEBATES OVER THE FIRST AMENDMENT SOUGHT IN THE CONSTITUENT ASSEMBLY: “The citizen’s right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom.”

98. Originally, Art. 19(1)(a) guaranteed the fundamental right to speech and expression subject to exceptions set out in Art. 19(2), which originally read 19(2) as under: “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”

99. The Constitution (First Amendment) Bill sought to introduce three new exceptions in 19(2), covering public order, incitement to an offence and friendly relations with foreign states; it also sought to remove the qualifiers relating to undermining the security of the state or tending to its overthrow. The amending clause in 54 the Bill as originally introduced in Parliament read as follows (words in boldface indicate the major changes sought to be made): “3. Amendment of article 19 and validation of certain laws. – (1) In article 19 of the Constitution – (a) for clause (2), the following clause shall be substituted, and the said clause shall be deemed to have been originally enacted in the following form, namely: – “(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub- clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, contempt of court, defamation or incitement to an offence.”

100. It may be noted that since the first elections under the new Constitution were not held until the winter of 1951, it was the Provisional Parliament which debated the First Amendment Bill in May–June 1951. Thus, it was the very same body, sitting as the Constituent Assembly, which had written the Constitution. Shri Nehru, opens the debate as under: “The Prime Minister and Minister of External Affairs (Shri Jawaharlal Nehru): We have come up here, naturally because after the experience of a year and a half or so; we have learned much. We have found out some, if I may say so, errors in drafting or in possible interpretations to be put on what we had drafted. That is but natural. And the House will also remember that when this matter of the Constitution was being considered in the Constituent Assembly, a clause or an article was proposed, that within a space of five years any changes in the Constitution should be relatively easy, that the normal procedure laid down need not be followed, but an easy procedure should be followed. Why? Because it was thought—and if I may say so, rightly thought—that after a little while many little things may come to our notice which did not come up in the course of the debate, and we could rectify them after that experience, with relative ease, 55 so that after this preliminary experience, the final shape may be more final and there would be no necessity for extensive amendments. However, that particular clause unfortunately—if I may say so with due respect—was dropped out. Nevertheless, so far as this House is concerned, it can proceed in the manner provided by the Constitution to amend it, if this House so chooses.”

101. Dr. Ambedkar, also expressed his views as under: “Dr. Ambedkar: Detention laws are something quite different. That is in a nutshell (Shri Kamath: What a poor nut!) the case for amending article 19 of the Constitution. It is next important to consider why the Supreme Court and the various State High Courts have come to this conclusion. Why is it that they say that Parliament has no right to make a law in the interests of public order or in the interests of preventing incitement to offences? That is a very important question and it is a question about which I am personally considerably disturbed. For this purpose I must refer briefly to the rules of construction which have been adopted by the Supreme Court as well as by the various State High Courts, but before I go to that I would like to refer very briefly to the rules of construction which have been adopted by the Supreme Court of the United States—and I think it is very relevant because the House will remember that if there is any Constitution in the world of a country of any importance which contains Fundamental Rights it is the Constitution of the United States and those of us who were entrusted with the task of framing our own Constitution had incessantly to refer to the Constitution of the United States in framing our own Fundamental Rights. There are many Members, I know who are familiar with the Constitution of the United States. How does the Constitution of the United States read? I think hon. Members will realize that apparently there is one difference between the Constitution of India and the Constitution of the United States so far as the Fundamental Right are concerned. The Fundamental Rights in the Constitution of the United States are stated in an absolute form the Constitution does not lay down any limitation on the Fundamental Rights set out in the Constitution. Our Constitution, on the 56 other hand not only lays down the Fundamental Rights but it also enumerates the limitations on the Fundamental Rights and yet what is the result? It is an important question to consider. far as The result is this that the Fundamental Rights in the United States although in the text of the Constitution judicial they appear as absolute so interpretations are concerned they are riddled with the limitations of one sort or another. Nobody can in the United States claim that his Fundamental Rights are absolute and that the Congress has no power to limit them or to regulate them. In our country I find that we are in the midst of a paradox: we have Fundamental Rights, we have limitations imposed upon them and yet the Supreme Court and the High Court say ― You shall not have any further limitations upon the Fundamental Rights. Now comes the question: how does this result come to be? And here I come to the canons of interpretation which have been adopted in the United States and by the Supreme Court and High Courts in our country. As hon. Members who are familiar with the growth of the Constitution of the United States will know, although the Constitution of the United States is a bundle of bare bones, the United States Supreme Court has clothed it with flesh and muscle so that it has got the firmness of body and agility which a human being requires. How has this happened? This has happened because the U.S. Supreme court, although it was the first court in the world which was called upon to reconcile the Fundamental Rights of the citizen with the interests of the State, after a great deal of pioneering work came upon two fixed principles of the constitution. One is that every State possesses what is called in the United States ―police power a doctrine which means that the State has a right to protect itself whether the Constitution gives such a right expressly or not. The ―police power is an inherent thing just as our Courts have inherent powers, in certain circumstances to do justice. It is as a result of this doctrine of ―police power that the United States Supreme Court has been able to evolve certain limitations upon the Fundamental Rights of the United States citizens. The second doctrine which the United States Supreme Court developed and which it applied for purposes of interpreting the Constitution is known as the doctrine of ―implied powers. According to the decisions of the Supreme Court if any particular authority 57 has been given a certain power then it must be presumed that it has got other powers to fulfill that power and if those powers are not given expressly then the Supreme Court of the United States is prepared to presume that they are implied in the Constitution. Now, what is the attitude which the Supreme Court has taken in this country in interpreting our Constitution? The Supreme Court has said that they will not recognize the doctrine of the ―police power which is prevalent in the United States. I do not wish to take the time of the House in reading the judgments of the Supreme Court but those who are interested in it may find this matter dealt with in the case known as Chiranjit Lal Chowdhuri versus the Union of India otherwise known as the Sholapur Mills case. You find the judgment of Mr. Justice Mukherjea expressly rejecting this doctrine which in text of the judgment has occured on page 15. They say they will not apply this doctrine. The reason why the Judges of the Supreme Court do not propose to adopt the doctrine of ―police power is this, so far as I am able to understand. That the Constitution has enumerated specially the heads in clause (2) under which Parliament can lay restriction on the Fundamental Right as to the freedom of speech and expression, and that as Parliament has expressly laid down the heads under which these limitations should exist, they them- selves now will not add to any of the heads which are mentioned in clause (2). That is in sum and substance the construction that you will find in the case of Thapar‘s judgment which was delivered by Mr. Justice Patanjali Sastri. He has said that they will not enlarge it and therefore as the Constitution itself does not authorizes Parliament to make a law for purposes of public order according to them. Parliament has no capacity to do it and they will not invest Parliament with any such authority. In the case of the Press Emergency Laws also they have said the same thing—that in clause (2) there is no head permitting Parliament to make any limitations in the interests of preventing incitement to an offence. Since section 4 of the Press (Emergency Powers) Act provides for punishment for incitement to the commitment of any offence, Parliament has no authority to do it. That is the general line of argument which the Supreme Court Judges have adopted in interpreting the Constitution. With regard to the 58 doctrine of implied powers they have also more or less taken the same view personally myself I take the view that there is ample scope for recognizing the doctrine of implied powers and I think our Directive Principles are nothing else than a series of provisions which contain implicitly in them the doctrine of implied powers. I find that these Directive Principles are made a matter of fun both by judges and by lawyers appearing before them. Article 37 of the Directive Principles has been made a butt of ridicule. Article 37 says that these Directives are not justifiable, that no one would be entitled to file a suit against the Government for the purpose of what we call specific performance. I admit that is so. But I respectfully submit that that is not the way of disposing of the Directive Principles? I think, the Government, The Directive Principles are nothing but obligations imposed by the Constitution upon the various Governments in this country—that they shall do certain things although, it says that if they fail to do them no one will have the right to call for specific performance. But the fact that there are obligations stands unimpeached. My submission in this that if these are the obligations of the State how can the State discharge these obligations unless it undertakes legislation to give effect to them? And if the Statement of obligations necessitates the imposition and enactment of laws it is obvious that all these fundamental principles of Directive Policy imply that the State with regard to the matters mentioned in these Directive Principles has the implied power to make a law. Therefore my contention is this that so far as the doctrine of implied powers is concerned there is ample authority in the Constitution itself to permit Parliament to make legislation, although it will not be specifically covered by the provisions contained in the Part on Fundamental Rights. Dr. S.P. Mookerjee (West Bengal): Even though they may become inconsistent with the provisions of the Constitution? Dr.Ambedkar : That is a different matter. Shri Kamath : That is a vital matter. Dr. Ambedkar: What I am saying is this that the various provisos attached to the various fundamental articles need 59 not be interpreted as though they were matters of strait- jacket as if nothing else is permissible. Shri Kamath: You yourself made it Dr. Ambedkar: The point that I was trying to make to the House is that on account of the declaration by the Supreme Court that this Parliament has no capacity to make a law in certain heads the question before the House is this can we allow the situation to remain as it is, as created by the judgments or we must endow Parliament with the authority to make a law? At this stage I do want to make a distinction and I do so for the special reason that Dr. Mookerjee came and said that we were taking away the freedom which people enjoyed. I think it is necessary to make a distinction between the capacity to make a law and the enactment of a particular law. All these matters as to whether a particular law encroaches upon the freedom of the people is a matter which can be discussed wheel the law is being made. Today we are not dealing with the capacity of Parliament to make a law.”

102. At this stage, the Bill was referred to the Select Committee consisting of Prof. K. T. Shah, Sardar Hukam Singh, Pandit Hirday Nath Kunzru, Dr.Syama Prasad Mookerjee, Shri Naziruddin Ahmad, Shri C. Rajagopalachari, Shri L. Krishnaswami Bharati, Shri Awadheshwar Prasad Sinha, Shri T. R. Deogirikar, Dr. B. R. Ambedkar, Shri V. S. Sarwate, Shri Mohanlal Gautam, Shri R. K. Sidhva, Shri Khanduhhai K. Desai, Shri K. Hanumanthaiya, Shri Raj Bahadur, Shrimati G. Durgabai, Shri ManilalChaturbhai Shah, Shri Dev KantaBarooah, Shri Satya Narayan Sinha and the Mover with instructions to report on Monday the 21st May, 1951. The Select Committee produced its report on the 25th of May. The Select Committee further noted as under: “Clause a -Our discussions centred mainly round the proposed clause (2) of article 19. After considering several alternative forms, we have come to the conclusion that the only substantial change required in the draft clause is the insertion of the word "reasonable" before the word "restrictions". This will bring clause (2) into line with clauses (3) to (6), all of which refer to laws imposing "reasonable restrictions". Certain consequential drafting changes have been made in the clause.” 60

103. As amended by the Select Committee, section 3 of the Amended Bill read as under: “3. Amendment of article 19 and validation of certain laws. – (1) In article 19 of the Constitution – (a) for clause (2), the following clause shall be substituted, and the said clause shall be deemed to always to have been enacted in the following form, namely: - “(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the right conferred by the said sub clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, including, in particular, any existing or other law relating to, contempt of court, defamation or incitement to an offence.”

104. Shri Nehru continued to stress the importance of approaching the Constitution in a “dynamic” spirit. He noted as under: “A Constitution must be respected if there is to be any stability in the land. A Constitution must not be made the plaything of some fickle thought or fickle fortune – that is true. At the same time we have in India a strange habit of making gods of various things, adding them to our innumerable pantheon and having given them our theoretical worship doing exactly the reverse. If we want to kill a thing we deify it. That is the habit of this country largely. So, if you wish to kill this Constitution make it sacred and sacrosanct – certainly. But if you want it to be a dead thing, not a growing thing, a static, unwieldy, unchanging thing, then by all means do so, realising that that is the best way of stabbing it in the front and in the back.”

105. Importantly, the Home Minister at the time, Shri Rajagopalachari, stated something which resonates with the debate today – especially on the issue of “incitement to an offence”. He notes as under: “Shri Rajagopalachari: 61 My desire to intervene was not very strong, but in view of the particular connection which my in the Government has with the criticisms that have been offered, I consider it incumbent on me to intervene, though I value the time of the House at this stage far too greatly to do it with pleasure. function Now, what is this right that we are discussing? This right that we are discussing is a natural right the right of freedom of expression and speech. It is a natural right. No one can claim that a natural right is like a right given in a clause of a lease or an insurance policy to be enforced like Shylock's pound of flesh. According to the letter of the law, a natural right should he subject to natural restrictions. Therefore, the proper way of approaching the question is whether the amendments that we propose do away with any natural and proper restrictions, whether the proposals that we make only refer to such unnatural things and abuses that everybody must agree to prevent. Was it the intention of any hon. Member who was party to the Constitution was it the intention of any freedom of speech should allow anybody to act adversely by sneaking or writing, to the security of the State or to friendly relations with foreign States or to public order or decency or morality or that the law of contempt of court should be abolished or that the law of defamation should be abolished or that incitement to offence should become part of the charter of freedom of speech? It is a perversion of logic to say that is natural right which has been acknowledged in the constitution as binding should be so interpreted by reason of its specific insertion in the constitution. As if it were a legal document by which a man can claim his pound of flesh under it whatever the injurious consequences. Then the question is what are the objectionable points. Now, I shall deal only with the incitement to offence clause to which great objection has been taken. What is the clause relating to incitement to offence? Hon. Members agree that violence should be kept out. But do hon. Members want that other forms of crime should be encouraged or allowed to be encouraged? If Parliament gravely sits down to pass a law that people should not sell wheat or gram at above a certain price, if hon. Members make a law that people should not commit theft, if hon. Members make a law in any other matter which does not involve violence, is it to be conceived that the freedom of speech granted by the Constitution 62 should go to the extent of encouraging or inciting people to commit those very crimes which we have defined after deliberation and put into the statute book? It is not between great and small that we should distinguish what we should distinguish is between crime or no crime. If Legislatures have decided that certain things are bad for society that they should be punished, then I say that freedom of speech should not cover incitements to committing those very things that have been forbidden. The ordinary way would be that it a prosecution is to be launched in any matter, trifling things may be ignored. Probably Government have, to ignore various things, trivial or big. But the question is what should the law and Constitution be? We cannot be contradictory though we may be contradictory in our arguments for the time being. Our attitudes must be consistent. Do we want certain things to be crime or do we want them to be not crimes? If they are not bad do not make the law of crime cover such things. But once you make up your mind that they are important and a certain thing should be treated as a crime and punished, then there is no sense in allowing people to use their freedom of speech for the purpose of incitement to that crime. Then the question is raised—it works that way in the minds of lawyers—that there is the law of abetment. in bur attitudes That is, you can proceed it the man abets a crime and you need not curb his freedom of speech. I want to know whether courts would hold that ah abetment which is only an exercise of the right of freedom of speech would be admitted as a crime once this article stands here. It is absolutely necessary and hon. Members may consult any lawyer of any eminence. If it is necessary to pass a law that certain acts are to be punished, as offences in order to govern we country, then: incitement to such crimes should not be encouraged. An incitement to offence is not necessarily an abetment. An abetment has to be directed to a particular offence and it should be proved in a particular manner, but surely we do not want people to say on the one hand, there should be no black-marketing and on the other hand say, people should be allowed to write and freely circulate statements and expressions saying: we honour men who break this law and we want you to break the law so that the law itself may be changed. We do not want that kind of contrary attitude with regard to crime. Let us pass laws with reference to crime with all the care that we can. But having passed that law once, let us not stultify ourselves by saying that freedom of expression must be any 63 man may circulate stuff inciting people to break that law and reduce it to nullity. Take the very popular measure with regard to prohibition of drink. Suppose we make laws that drink should be prohibited. May we at the same time allow the people to write: ―It is a noble thing to break this law. Carry bottles in your trouser pockets. Try to smuggle wherever you can?ǁ If we really mean governance, we should uphold the law of crime that we put into the statute book. We cannot allow the freedom of the Press to run counter to the law of crime. A restriction in this respect is necessary. Therefore with respect to any offence so far as it is admitted as an offence by any Legislature, we must guard that law properly. If you pass this law, it does not make incitement to offence as such a crime. What this clause allows is for Legislatures and Parliament to pass laws which would take notice of such incitements to offence in a suitable manner. It does not mean that every incitement to crime becomes a crime by itself, apart from abetment. This clause only permits Legislatures to take notice and take due measures to prevent such incitement to offence and that is the reason behind this clause and not any intention to curb the freedom of speech. 'Freedom of speech' put most briefly is a thing to be used and not to be abused. Of every natural right there can be use as well as abuse and Governments and Parliaments and Legislatures have to prevent abuse and it is not interference with that freedom if we prevent that abuse.”

106. The clause-by-clause discussion of the Bill was to take place on June 1, 1951. The debate on the Art. 19(2) exceptions in clause 3 of the Bill was brief, and covered familiar ground – it was passed by a majority of 228 to 19.

107. There was an interesting exchange at this stage between Shri Shyama Prasad Mookerjee on the one hand and Shri Ambedkar and Shri Rajagopalachari on the question of “incitement to an offence”. In his earlier intervention on the Bill Rajagopalachari had suggested that the scope of this clause should go beyond crimes of violence – for instance theft or black-marketing: once an act was criminalised, one should also criminalise its encouragement or incitement.

108. Shri Ambedkar extended the point and argued that if “violence” to apply only to physical violence, such a narrow reading, would make it impossible to pass a law, e.g. punishing 64 calls for social boycotts of Scheduled Castes. Shri Ambedkar and the debates on this point are as under: “Dr. Ambedkar: I know some people have got a bee in their bonnet. On all these three counts I submit that all these amendments are quite unnecessary. I will now deal with the question of confining "incitement" to violence and I want my friends, Dr.Syama Prasad Mookerjee and also Pandit Kunzru to pay some attention to what I am saying—and I will take some very particular cases. First of all, I would like to know whether they are in a position to give a precise definition of the meaning of the word "violence". What is "violence"? Is it to be confined merely to physical violence? Dr. S. P. Mookerjee: Violent words are excluded. Dr. Ambedkar: I am not talking of violent words. Have they been able to give us any precise definition which would enable the legislature and the court to know that this is violence and this is not violence? I cannot find any. Shri Kamath: Put it as "as defined by law". Dr. Ambedkar: It is only postponing the trouble. Some day when we make the law we shall have to give the definition of "violence". I come now to specific instances. Supposing, for instance, there is trouble—I am giving some concrete cases –which have happened—and there is trouble between the Scheduled Castes and caste Hindus in a particular village and the caste Hindus conspire together to proclaim a social boycott on the Scheduled Castes, preventing them from obtaining any kind of supplies, preventing them from going into the -fields, preventing them from going in the jungles to collect fuel, then I want to know from Dr.Syama Prasad Mookerjee and Pandit Kunzru whether they want this, as an offence, to be regarded by the State as such or not. Dr. Ambedkar: I shall give another illustration which was recently reported in Bombay. In a place near Thana there was trouble going on between caste Hindus and the 'Scheduled Castes over the taking of water from a particular well. With the help of the police the Scheduled Castes there were able to secure their right to take water from that well 65 along with the caste Hindus. The caste Hindus did not like the matter. They wanted the well to be exclusively used by them. Two days ago there was a report in the Bombay Press wherein it was stated that some caste Hindus incited some of their men to drop into it some kind of poisonous weeds. The result was that the whole water was poisoned and some of the Scheduled Caste people who drank the water suffered from the effect of the poison. I want to ask both of them whether they would limit their definition of incitement to violence, or whether they would extend it to cover where one community does something' in order harm and injure another community. Dr. S. P. Mookerjee: In such a case you and I will go there to prevent it. Dr. Ambedkar: You and I cannot go everywhere. You will be engaged in fighting the elections and I may be doing something else and we will have no time to go to the rescue of those people. It is no use taking the responsibility on our shoulders. It is much better that the law provides for it. Then, with regard to particular laws, I and my colleagues on the Treasury Benches have been shouting time and over again that in this Bill what we are doing is to merely confer capacity on Parliament to make laws for certain purposes. We are not enacting particular laws. We are, not even protecting the laws as they exist today. But somehow Members who are determined to oppose, Members who are determined to take the opposite view -if they will forgive me —out of pure obstinacy are not able to make this distinction between capacity to legislate and making a particular law. Dr. S. P. Mookerjee: The obstinacy is yours not to understand.”

109. Finally, on 18.6.1951, the Constitution [First Amendment] Act, 1951 was brought in, amending Article 19[2] of the Constitution of India.” (Emphasis supplied)

12.4. The debates were broadly on the concept that the Constitution must be dynamic and adaptable. Amendments 66 are necessary to correct drafting gaps which were exposed by the judicial interpretations. Free speech is a natural right, but no right is absolute. Incitement to crimes, not just violent crimes, must be restricted. Given the take, on the aforesaid debate, comes the afore-quoted amendment. The final outcome of the amendment was, that Article 19(2) was amended to allow, reasonable restrictions on speech, in the interest of security of the State; friendly relations with foreign states; public order; decency or morality; contempt of Court; defamation; and incitement to an offence. Thus comes the thread of reasonable restriction woven into the Article 19(2). This marked the first major constitutional clash between individual liberty versus state.

12.5. The entire fulcrum of the submissions of the learned senior counsel for the petitioner is based upon free speech doctrine, as interpreted by SHREYA SINGHAL supra, which the learned senior counsel submits that it is his sheet anchor. In that light, it becomes necessary to notice the judicial thought, Pre-SHREYA 67 SINGHAL and Post-SHREYA SINGHAL qua Article 19(2) – Doctrine of free speech. JUDICIAL THOUGHT: PRE-SHREYA SINGHAL:

12.6. The amended Article 19(2) with the words “in the interests of Public Order” fell for interpretation before the Apex Court in the case of STATE OF MADRAS v. V.G. ROW6 wherein it is held as follows: “…. …. ….

20. It was not disputed that the restrictions in question were imposed “in the interests of public order”. But, are they “reasonable” restrictions within the meaning of Article 19(4)? Before proceeding to consider this question, we think it right to point out, what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of reviewing legislative Acts under cover of the widely interpreted “due process” clause in the Fifth and Fourteenth Amendments. If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the “fundamental rights”, as to which this Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters 6 (1952) 1 SCC 410 68 that the courts in the new set-up are out to seek clashes with the legislatures in the country.

21. The learned Judges of the High Court unanimously held that the restrictions under Section 15(2)(b) were not reasonable on the ground of (1) the inadequacy of the publication of the notification, (2) the omission to fix a time-limit for the Government sending the papers to the Advisory Board or for the latter to make its report, no safeguards being provided against the Government enforcing the penalties in the meantime, and (3) the denial to the aggrieved person of the right to appear either in person or by pleader before the Advisory Board to make good his representation. In addition to these grounds one of the learned Judges (Satyanarayana Rao, J.) held that the impugned Act offended against Article 14 of the Constitution in that there was no reasonable basis for the differentiation in treatment between the two classes of unlawful associations mentioned in Sections 15(2)(a) and (b). The other learned Judges did not, however, agree with this view. Viswanatha Sastri, J. further held that the provisions for forfeiture of property contained in the impugned Act were void as they had no reasonable relation to the maintenance of public order. The other two Judges expressed no opinion on this point. While agreeing with the conclusion of the learned Judges that Section 15(2)(b) is unconstitutional and void, we are of opinion that the decision can be rested on a broader and more fundamental ground.

22. This Court had occasion in Khare case [N.B. Khare v. State of Delhi, 1950 SCR 519 : 1950 SCC 522] to define the scope of the judicial review under clause (5) of Article 19 where the phrase “imposing reasonable restrictions on the exercise of the right” also occurs, and four out of the five Judges participating in the decision expressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of the impugned restrictive law should be examined from the point of view of reasonableness; that is to say, the Court should consider not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorised. 69

23. It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable.” (Emphasis supplied) The Apex Court holds that the word “in the interests of Public Order” would undoubtedly give room to suitably tailored reasonable restrictions to meet the demands of time.

12.7. Again, the Apex Court considering the very insertion in the case of RAMJI LAL MODI v. STATE OF U.P.7, has held as follows: 7 1957 SCC OnLine SC 77 “…. …. …. 70

9. Learned counsel then shifted his ground and formulated his objection in a slightly different way. Insults to the religion or the religious beliefs of a class of citizens of India, may, says learned counsel, lead to public disorders in some cases, but in many cases they may not do so and, therefore, a law which imposes restrictions on the citizens' freedom of speech and expression by simply making insult to religion an offence will cover both varieties of insults i.e. those which may lead to public disorders as well as those which may not. The law insofar as it covers the first variety may be said to have been enacted in the interests of public order within the meaning of clause (2) of Article 19, but insofar as it covers the remaining variety will not fall within that clause. The argument then concludes that so long as the possibility of the law being applied for purposes not sanctioned by the Constitution cannot be ruled out, the entire law should be held to be unconstitutional and void. We are unable, in view of the language used in the impugned section, to accede to this argument. In the first place clause (2) of Article 19 protects a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression “in the interests of public order”, which is much wider than “for maintenance of” public order. If, therefore, certain activities have a tendency to cause public disorder, a law penalising such activities as an offence cannot but be held to be a law imposing reasonable restriction “in the interests of public order” although in some cases those activities may not actually lead to a breach of public order. In the next place Section 295-A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section. It only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. The calculated 71 tendency of this aggravated form of insult is clearly to disrupt the public order and the section, which penalises such activities, is well within the protection of clause (2) of Article 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Article 19(1)(a). Having regard to the ingredients of the offence created by the impugned section, there cannot, in our opinion, be any possibility of this law being applied for purposes not sanctioned by the Constitution. In other words, the language employed in the section is not wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the fundamental right guaranteed by Article 19(1)(a) and consequently the question of severability does not arise and the decisions relied upon by learned counsel for the petitioner have no application to this case.

10. For the reasons stated above, the impugned section falls well within the protection of clause (2) Article 19 and this application must, therefore, be dismissed.” (Emphasis supplied) The Apex Court interprets in the interest of public order. Holds it to be wide. It does mean, only the acts that directly cause disorder, but those, with a tendency to cause disorder. So, even if in some cases, an insult does not lead to disorder, the law is valid, if the act, can disrupt, the public order. The Court holds that Section 295A is constitutional and it squarely falls within the scope of reasonable restriction, on free speech, in the interest of public order. 72

12.8. The Apex Court again, in the case of VIRENDRA v. STATE OF PUNJAB8, interprets the words ‘in the interest of’ thus: “…. …. ….

10. The test of reasonableness has been laid down by this Court in State of Madras v. V.G. Row [(1952) 1 SCC 410 : (1952) SCR 597, 607] in the following words: “It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.” This dictum has been adopted and applied by this Court in several subsequent cases. The surrounding circumstances in which the impugned law came to be enacted, the underlying purpose of the enactment and the extent and the urgency of the evil sought to be remedied have already been adverted to. It cannot be overlooked that the Press is a mighty institution wielding enormous powers which are expected to be exercised for the protection and the good of the people but which, may conceivably be abused and exercised for anti-social purposes by exciting the passions and prejudices of a section of the people against another section and thereby disturbing the public order and tranquillity or in support of a policy which may be of a subversive character. The powerful influence of the newspapers, for good or evil, on the minds of the readers, the wide sweep of their reach, the modern facilities for their swift circulation to territories, distant and near, must all enter into the judicial verdict and the reasonableness of the restrictions imposed upon the Press has to be tested against this background. It is certainly a serious encroachment on the valuable and cherished right to freedom of speech and expression if a newspaper is prevented from publishing its own views or the views of its 8 1957 SCC OnLine SC 56 73 interchange of correspondents relating to or concerning what may be the burning topic of the day. Our social interest ordinarily demands the views but free propagation circumstances may arise when the social interest in public order may require a reasonable subordination of the social interest in free speech and expression to the needs of our social interest in public order. Our Constitution recognises this necessity and has attempted to strike a balance between the two social interests. It permits the imposition of reasonable restrictions on the freedom of speech and expression in the interest of public order and on the freedom of carrying on trade or business in the interest of the general public. Therefore, the crucial question must always be: Are the restrictions imposed on the exercise of the rights under Articles 19(1)(a) and 19(1)(g) reasonable in view of all the surrounding circumstances? In other words, are the restrictions reasonably necessary in the interest of public order under Article 19(2) or in the interest of the general public under Article 19(6)?” (Emphasis supplied) The Apex Court holds that the words “in the interest of” are words of great amplitude and much wider than the words “for the maintenance of” used in Article 19(2) of the Constitution.

12.9. This culminated in a judgment rendered by the Apex Court in the case of SUPERINTENDENT, CENTRAL PRISON v. DR. RAM MANOHA LOHIA9 wherein the Apex Court considers the width and amplitude of Article 19(2) in the following paragraphs: 9 1960 SCC Online SC 43 “…. …. …. 74

9. We shall now proceed to consider the constitutional validity of this section. The material portions of the relevant provisions of the Constitution may now be read: “19. (1) All citizens shall have the right— (a) to freedom of speech and expression; *** (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.” clause (2) of Article 19 was amended by the Constitution (First Amendment) Act, 1951. By this amendment several new grounds of restrictions upon the freedom of speech have been introduced, such as friendly relations with foreign States, public order and incitement to an offence. It is self-evident and common place that freedom of speech is one of the bulwarks of a democratic form of Government. It is equally obvious that freedom of speech can only thrive in an orderly society clause (2) of Article 19, therefore, does not affect the operation of any existing law or prevent the State from making any law insofar as such law imposes reasonable restrictions on the exercise of the right of freedom of speech in the interest of public order, among others. To sustain the existing law or a new law made by the State under clause (2) of Article 19, so far as it is relevant to the present enquiry, two conditions should be complied with viz. (i) the restrictions imposed must be reasonable; and (ii) they should be in the interests of public order. Before we consider the scope of the words of limitation, “reasonable restrictions” and “in the interests of”, it is necessary to ascertain the true meaning of the expression “public order” in the said clause. The expression “public order” has a very wide connotation. Order is the basic need in any organised society. It implies the orderly state of 75 society or community in which citizens can peacefully pursue their normal activities of life. In the words of an eminent Judge of the Supreme Court of America “the essential rights are subject to the elementary need for order without which the guarantee of those rights would be a mockery”. The expression has not been defined in the Constitution, but it occurs in List II of its Seventh Schedule and is also inserted by the Constitution (First Amendment) Act, 1951 in clause (2) of Article 19. The sense in which it is used in Article 19 can only be the Article was appreciated by ascertaining how construed before it was inserted therein and what was the defect to remedy which the Parliament inserted the same by the said amendment. The impact of clause (2) of Article 19 on Article 19(1)(a) before the said amendment was subject to judicial scrutiny by this Court in Romesh Thappar v. State of Madras [(1950) SCR 594, 600, 601, 602] . There the Government of Madras, in exercise of their powers under Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, purported to issue an order whereby they imposed a ban upon the entry and circulation of the journal called the “Cross Roads” in that State. The petitioner therein contended that the said order contravened his fundamental right to freedom of speech and expression. At the time when that order was issued the expression “public order” was not in Article 19(2) of the Constitution; but the words “the security of the State” were there. In considering whether the impugned Act was made in the interests of security of the State, Patanjali Sastri, J., as he then was, after citing the observation of Stephen in his Criminal Law of England, states: “Though all these offences thus involve disturbances of public tranquillity and are in theory offences against public order, the difference between them being only a difference of degree, yet for the purpose of grading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by the Indian Penal Code. Similarly, the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in Article 19(1), has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it, and made their 76 prevention the sole justification for legislative abridgement of freedom of speech and expression, that is to say, nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression ….” The learned Judge continued to state: the boundary between “The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, may be, roughly, those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differences in kind.” The learned Judge proceeded further to state: “We are therefore of opinion that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of Article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order.” This decision establishes two propositions viz. (i) maintenance of public order is equated with maintenance of public tranquillity; and (ii) the offences against public order are divided into two categories viz. (a) major offences affecting the security of the State, and (b) minor offences involving breach of purely local significance. This Court in Brij Bhushan v. State of Delhi [(1950) SCR 605] followed the earlier decision in the context of Section 7(1)(c) of the East Punjab Public Safety Act, 1949. Fazl Ali, J., in his dissenting judgment gave the expression “public order” a wider meaning than that given by the majority view. The learned Judge observed at p. 612 thus: “When we approach the matter in this way, we find that while ‘public disorder’ is wide enough to cover a small riot or an affray and other cases where peace is disturbed by, or affects, a small group of persons, ‘public unsafety’ (or insecurity of the State), will usually be connected with 77 serious internal disorders and such disturbances of public tranquillity as jeopardize the security of the State.” This observation also indicates that “public order” is equated with public peace and safety. Presumably in an attempt to get over the effect of these two decisions, the expression “public order” was inserted in Article 19(2) of the Constitution by the Constitution (First Amendment) Act, 1951, with a view to bring in offences involving breach of purely local significance within the scope of permissible restrictions under clause (2) of Article 19. After the said amendment, this Court explained the scope of RomeshThapper's case [(1950) SCR 594, 600, 601, 602] in State of Bihar v. Shailabala Devi [(1952) 2 SCC 22 : (1952) SCR 654] . That case was concerned with the constitutional validity of Section 4(1)(a) of the Indian Press (Emergency Powers) Act, 1931. It deals with the words or signs or visible representations which incite to or encourage, or tend to incite to or encourage the commission of any offence of murder or any cognizable offence involving violence. Mahajan, J., as he then was, observed at p. 660: “The deduction that a person would be free to incite to murder or other cognizable offence through the press with impunity drawn from our decision in Romesh Thapper case could easily have been avoided as it was avoided by Shearer, J., who in very emphatic terms said as follows: ‘I have read and re-read the judgments of the Supreme Court, and I can find nothing in them myself which bear directly on the point at issue, and leads me to think that, in their opinion, a restriction of this kind is no longer permissible.’” The validity of that section came up for consideration after the Constitution (First Amendment) Act, 1951, which was expressly made retrospective, and therefore the said section clearly fell within the ambit of the words “in the interest of public order”. That apart the observations of Mahajan, J., as he then was, indicate that even without the amendment that section would have been good inasmuch as it aimed to prevent incitement to murder.

10. The words “public order” were also understood in America and England as offences against public safety or public 78 peace. in Cantewell v. Connecticut [(1940) 310 US 296, 308] thus: Supreme America Court The observed “The offence known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquillity. It includes not only violent acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot … When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the power of the State to prevent or punish is obvious.” The American decisions sanctioned a variety of restrictions on the freedom of speech in the interests of public order. They cover the entire gamut of restrictions that can be imposed under different heads in Article 19(2) of our Constitution. The following summary of some of the cases of the Supreme Court of America given in a well-known book on Constitutional law illustrates the range of categories of cases covering that expression. “In the interests of public order, the State may prohibit and punish the causing of ‘loud and raucous noise’ in streets and public places by means of sound amplifying instruments, regulate the hours and place of public discussion, and the use of the public streets for the purpose of exercising freedom of speech; provide for the expulsion of hecklers from meetings and assemblies, punish utterances tending to incite an immediate breach of the peace or riot as distinguished from utterances causing mere ‘public inconvenience, annoyance or unrest’”. In England also Acts like Public Order Act, 1936, Theatres Act, 1843 were passed : the former making it an offence to use threatening, abusive or insulting words or behaviour in any public place or at any public meeting with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be caused, and the latter was enacted to authorise the Lord Chamberlain to prohibit any stage play whenever he thought its public performance would militate against good manners, decorum and the preservation of the public peace. The reason underlying all the decisions is that if the freedom of speech was not restricted in the manner the relevant Acts did, public safety and tranquillity in the State would be affected. 79 imposition of

11. But in India under Article 19(2) this wide concept of “public order” is split up under different reasonable heads. It enables restrictions on the exercise of the right to freedom of speech and expression in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. All the grounds mentioned therein can be brought under the general head “public order” in its most comprehensive sense. But the juxtaposition of the different grounds indicates that, though sometimes they tend to overlap, they must be ordinarily intended to exclude each other. “Public order” demarcated from the others. In that limited sense, particularly in view of the history of the amendment, it can be postulated that “public order” is synonymous with public peace, safety and tranquillity. therefore something which … … …

18. The foregoing discussion yields the following results : (1) “Public order” is synonymous with public safety and tranquillity : it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State; (2) there must be proximate and reasonable nexus between the speech and the public order; (3) Section 3, as it now stands, does not establish in most of the cases comprehended by it any such nexus; (4) there is a conflict of decision on the question of severability in the context of an offending provision the language whereof is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislation; one view is that it cannot be split up if there is possibility of its being applied for purposes not sanctioned by the Constitution and the other view is that such a provision is valid if it is severable in its application to an object which is clearly demarcated from other object or objects falling outside limits of constitutionally permissible legislation; and (5) the provisions of the section are so inextricably mixed up that it is not possible to apply the doctrine of severability so as to enable us to affirm the validity of a part of it and reject the rest.” (Emphasis supplied) 80 The Apex Court draws a delicate, yet decisive line between the security of the State and public order. It holds that the quiet rhythm of daily life, the calm of streets and markets, the harmony of neighbourhoods is nothing more and nothing less than the safety and tranquillity of the ordinary citizen. A breach of public order is not a revolution, but a riot, not a civil war, but a communal flare- up, not the downfall of Governments but, the shattering of the even tempo of the community life. Thus, in the constitutional vision, public order is not a sword to silent dissent, but a shield to preserve the peace. The Apex Court thus observed that, the law distinguishes between the cry of the rebellion and the murmur of the critic, between the dangerous incitement and the unpopular opinion. It held that there must be proximity and reasonable nexus between speech and public order. In the teeth of the afore-quoted judgments of the constitution benches of the Apex Court, interpreting Article 19(2), the freedom of speech and expression, being hedged with reasonable restrictions of several hues and forms, it becomes necessary to notice the sheet anchor of the learned senior counsel for the petitioner – the judgment in the case of SHREYA SINGHAL. 81 SHREYA SINGHAL:

12.10. Section 66A, 69A and 70 of the IT Act became the fulcrum of challenge before the Apex Court in the case of SHREYA SINGHAL. The Apex Court considered elaborate submissions made by respective parties. The challenge before the Apex Court and the contentions so advanced insofar as they are germane are as follows: “1. Section 66-A of the Information Technology Act, 2000 (the said Act) is unconstitutional because it violates the fundamental rights of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution.

2. (a) "Freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved." [See Sakal Papers (P) Ltd. v. Union of India, (1962) 3 SCR 842 at 866.] (b) "Freedom of the press is the Ark of the Covenant of Democracy because public criticism is essential to the working of its institutions. Never has criticism been more necessary than today, when the weapons of propaganda are so strong and so subtle. But, like other liberties, this also must be limited." [See Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788: (1973) 2 SCR 757 at 829.] (c) "Very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organizations...." [See RomeshThappar v. State of Madras, 1950 SCR 594 at 602.] 82 (d) "Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the a unconstitutional and void. Constitution cannot be ruled out, it must be held to be wholly an enactment, which is capable of being applied to cases where no such danger would arise, cannot be held to be constitutional and valid to any extent." [see RomeshThappar v. State of Madras, 1950 SCR 594 at 603.] (e) "It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express." [See Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788: (1973) 2 SCR 757 at 829.]

3. "There is nothing in clause (2) of Article 19 which permits the State, to abridge this right on the ground of conferring benefits upon the public in general or upon a section of the public. It is not open to the State to curtail or infringe the freedom of speech of one for promoting the general welfare of a section or a group of people unless its action could be justified under a law competent under clause (2) of Article 19." [See Sakal Papers (P) Ltd. v. Union of India, (1962) 3 SCR 842 at 862.]

4. Restrictions which can be imposed on freedom of expression can be only on the heads specified in Article 19(2) and none other. Restrictions cannot be imposed on the ground of "interest of general public" contemplated by Article 19(6). [See Sakal Papers (P) Ltd. v. Union of India, (1962) 3 SCR 842 at 868.]

5. Section 66-A penalises speech and expression on the ground that it causes annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will. These grounds are outside the purview of Article 83 19(2). Hence the said section is unconstitutional. [See Ministry of I&B, Govt. of India v. Cricket Assn. of Bengal, (1995) 2 SCC 161 at 226-27.1

6. Section 66-A also suffers from the vice of vagueness because expressions mentioned therein convey different meanings to different persons and depend on the subjective opinion of the complainant and the statutory authority without any objective standard or norm. [See State of M.P. v. Baldeo Prasad, 979; HarakchandRatanchandBanthia v. Union of India, (1969) 2 SCC 166 at 183, para 21; K.A. Abbas v. Union of India, (1970) 2 SCC 780 at 799, paras 45-46; Burstyn v. Wilson, 96 L Ed g 1098 at 1120-22; Ministry of I&B. Govt. of India v. Cricket Assn. of Bengal. (1995) 2 SCC 161 at 199-200.] (1961) SCR 970 1

7. In that context enforcement of the said section is an insidious form of censorship which is not authorised by the Constitution. [See Hector v. Attorney General of Antigua & Barbuda, (1990) 2 All ER 103.]

8. There are numerous instances about the arbitrary and frequent invocation of the said section which highlight the legal infirmity arising from uncertainty and vagueness which is inherent in the said section. (emphasis added)