2015 (3) TMI 814 - SC - Indian Laws

Struck down provision - Constitutionality of Section 66A of the Information Technology Act 2000 - fundamental right of free speech and expression guaranteed by Article 19(1)(a) of the Constitution of India - procedural unreasonableness aspect of the Section - Validity of Section 118 (d) of the Kerala Police Act. HELD THAT - The Preamble of the Constitution of India inter alia speaks of liberty of thought expression belief faith and worship. It also says that India is a sovereign democratic republic. It cannot be over emphasized that when it comes to democracy liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme. - Section 66A of the Information Technology Act, 2000 held unconstitutional - Against the fundamental right of free speech and expression guaranteed by Article 19(1)(a) of the Constitution of India - Not saved under Article 19(2). It is significant to notice first the differences between the US First Amendment and Article 19(1)(a) read with Article 19(2). The first important difference is the absoluteness of the U.S. first Amendment - Congress shall make no law which abridges the freedom of speech. Second whereas the U.S. First Amendment speaks of freedom of speech and of the press without any reference to expression Article 19(1)(a) speaks of freedom of speech and expression without any reference to the press . Third under the US Constitution speech may be abridged whereas under our Constitution reasonable restrictions may be imposed. Fourth under our Constitution such restrictions have to be in the interest of eight designated subject matters - that is any law seeking to impose a restriction on the freedom of speech can only pass muster if it is proximately related to any of the eight subject matters set out in Article 19(2). The real rule is that if a law is vague or appears to be so the court must try to construe it as far as may be and language permitting the construction sought to be placed on it must be in accordance with the intention of the legislature. Thus if the law is open to diverse construction that construction which accords best with the intention of the legislature and advances the purpose of legislation is to be preferred. Where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom the law must be held to offend the Constitution as was done in the case of the Goonda Act. This is not application of the doctrine of due process. The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases. In this case it is the converse proposition which would really apply if the learned Additional Solicitor General s argument is to be accepted. If Section 66A is otherwise invalid it cannot be saved by an assurance from the learned Additional Solicitor General that it will be administered in a reasonable manner. Governments may come and Governments may go but Section 66A goes on forever. An assurance from the present Government even if carried out faithfully would not bind any successor Government. It must therefore be held that Section 66A must be judged on its own merits without any reference to how well it may be administered. It has been held by us that Section 66A purports to authorize the imposition of restrictions on the fundamental right contained in Article 19(1)(a) in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action. We have held following K.A. Abbas case 1970 (9) TMI 104 - SUPREME COURT that the possibility of Section 66A being applied for purposes not sanctioned by the Constitution cannot be ruled out. It must therefore be held to be wholly unconstitutional and void. The present being a case of an Article 19(1)(a) violation Romesh Thappar s judgment 1950 (5) TMI 23 - SUPREME COURT would apply on all fours. In an Article 19(1)(g) challenge there is no question of a law being applied for purposes not sanctioned by the Constitution for the simple reason that the eight subject matters of Article 19(2) are conspicuous by their absence in Article 19(6) which only speaks of reasonable restrictions in the interests of the general public. The present is a case where as has been held above Section 66A does not fall within any of the subject matters contained in Article 19(2) and the possibility of its being applied for purposes outside those subject matters is clear. We therefore hold that no part of Section 66A is severable and the provision as a whole must be declared unconstitutional. It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision with several safeguards. First and foremost blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do. Secondly such necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution. However what has been said about Section 66A would apply directly to Section 118(d) of the Kerala Police Act as causing annoyance in an indecent manner suffers from the same type of vagueness and over breadth that led to the invalidity of Section 66A and for the reasons given for striking down Section 66A Section 118(d) also violates Article 19(1)(a) and not being a reasonable restriction on the said right and not being saved under any of the subject matters contained in Article 19(2) is hereby declared to be unconstitutional. In conclusion we may summarise what has been held by us above (a) Section 66A of the Information Technology Act 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2). (b) Section 69A and the Information Technology (Procedure Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid. (c) Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material. Similarly the Information Technology Intermediary Guidelines Rules 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment. (d) Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2). All the writ petitions are disposed in the above terms.

Summary

1. ISSUES PRESENTED and CONSIDERED

The primary issue addressed was the constitutionality of Section 66A of the Information Technology Act, 2000, in relation to the fundamental right of free speech and expression under Article 19(1)(a) of the Constitution of India. The judgment also considered the validity of Section 69A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, the applicability of Section 79 and the Information Technology (Intermediary Guidelines) Rules, 2011, and the constitutionality of Section 118(d) of the Kerala Police Act.

2. ISSUE-WISE DETAILED ANALYSIS

Section 66A of the Information Technology Act, 2000

Relevant Legal Framework and Precedents: Article 19(1)(a) guarantees freedom of speech and expression, subject to reasonable restrictions under Article 19(2). The petitioners argued that Section 66A infringed upon this right without falling under the permissible restrictions outlined in Article 19(2).

Court's Interpretation and Reasoning: The Court found that Section 66A was vague and overbroad, lacking clear definitions for terms like "grossly offensive" and "menacing." This vagueness led to arbitrary enforcement and a chilling effect on free speech. The Court emphasized that the section did not align with any of the permissible grounds for restricting free speech under Article 19(2).

Key Evidence and Findings: The Court noted that Section 66A's language was broad enough to encompass a wide range of protected speech, thereby affecting the public's right to know and the marketplace of ideas.

Application of Law to Facts: The Court applied the principles of free speech and the requirement for narrow tailoring of restrictions, concluding that Section 66A failed to meet these standards.

Treatment of Competing Arguments: The Court rejected the government's defense that the potential for abuse did not render the provision unconstitutional, emphasizing that the section's language itself was problematic.

Conclusions: Section 66A was struck down in its entirety as it violated Article 19(1)(a) and was not saved by Article 19(2).

Section 69A and the 2009 Rules

Relevant Legal Framework and Precedents: Section 69A allows the government to block public access to information for reasons aligned with Article 19(2).

Court's Interpretation and Reasoning: The Court found Section 69A to be narrowly drawn with sufficient procedural safeguards, including the requirement for written reasons and a hearing process.

Key Evidence and Findings: The Court noted the procedural safeguards in the 2009 Rules, which provided a structured process for blocking orders.

Application of Law to Facts: The Court upheld Section 69A and the Rules, finding them constitutionally valid as they adhered to the restrictions allowed under Article 19(2).

Treatment of Competing Arguments: The Court dismissed the argument that additional safeguards like those in the Criminal Procedure Code were necessary, finding the existing rules adequate.

Conclusions: Section 69A and the 2009 Rules were upheld as constitutional.

Section 79 and the 2011 Rules

Relevant Legal Framework and Precedents: Section 79 provides intermediaries with exemption from liability, subject to conditions.

Court's Interpretation and Reasoning: The Court read down Section 79(3)(b) to mean that intermediaries must act on court orders or government notifications that conform to Article 19(2).

Key Evidence and Findings: The Court found that requiring intermediaries to judge content without clear standards was problematic.

Application of Law to Facts: The Court upheld Section 79 and the 2011 Rules, subject to the condition that intermediaries act only on court orders or government notifications.

Treatment of Competing Arguments: The Court acknowledged the global practice of intermediaries having user agreements but emphasized the need for court orders to guide content removal.

Conclusions: Section 79 and the 2011 Rules were upheld with specific conditions for their application.

Section 118(d) of the Kerala Police Act

Relevant Legal Framework and Precedents: The provision was challenged for vagueness and overbreadth, similar to Section 66A.

Court's Interpretation and Reasoning: The Court found Section 118(d) to suffer from the same vagueness and overbreadth issues as Section 66A.

Key Evidence and Findings: The provision's language was found to be vague and capable of arbitrary application.

Application of Law to Facts: The Court applied the same reasoning as for Section 66A, finding Section 118(d) unconstitutional.

Treatment of Competing Arguments: The Court dismissed arguments of legislative competence, focusing on the provision's constitutional validity.

Conclusions: Section 118(d) was struck down as unconstitutional.

3. SIGNIFICANT HOLDINGS

Preserve verbatim quotes of crucial legal reasoning: The Court emphasized that "a law which is vague and overbroad, and which does not have a proximate relation to any of the eight subject matters contained in Article 19(2), must necessarily be struck down as unconstitutional."

Core principles established: The judgment reinforced the requirement for precision in laws affecting free speech and the necessity for such laws to align with Article 19(2).

Final determinations on each issue: Section 66A and Section 118(d) were struck down. Section 69A and the 2009 Rules were upheld. Section 79 and the 2011 Rules were upheld with conditions.