pucl pil challenging section 66a of the information technology act
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SYNOPSIS
The Peoples’ Union for Civil Liberties (PUCL) was established by Shri Jai
Prakash Narain, Acharya Kriplani, Krishna Kanth and others. Shri V.M
Tarkunde, Rajni Kothari, K.G. Kannabiran and others were associated with
PUCL as its President. The organization has 25 state branches all over the
Country. PUCL has been raising awareness about civil liberties and human
rights and also fighting for their protection. The PUCL has conducted many
fact finding enquiries and has compiled several reports on human rights
violations. Among several important cases fought by the PUCL, few are:
Telephone tapping case (1997) 1 SCC 301; Fake encounter in Manipur
(1997)3 SCC 463; Disclosure of criminal background and assets by
candidates (2003) 9 SCC 490; Challenge to POTA (2004) 9 SCC 980; and
Right to food which is still pending in this Hon’ble Court.
The present petition impugns Section 66A of the Information Technology
Act, 2000, the Information Technology (Procedure and Safeguards for
Blocking for Access of Information by Public) Rules, 2009 [henceforth
referred to as the Website Blocking Rules] and the Information Technology
(Intermediaries Guidelines) Rules, 2011 [The Intermediary Guidelines] as
being violative of Articles 14, 19 and 21 of the Constitution of India.
The instant writ petition is being filed under Article 32 of the Constitution of
India by way of a Public Interest Litigation as there are instances of
complaints under Section 66A of the Information Technology Act, 2000 as
well as misuse of the abovementioned Rules all over country despite this
Hon’ble Court issuing notice in Shreya Singhal vs Union of India (WP (c)
167 of 2012) and connected Writ Petitions/ Special Leave Petitions.
It is respectfully stated that Section 66A of the Information Technology Act,
2000 provides a maximum of three years punishment for due to, inter-alia,
“annoyance” or “inconvenience” being caused by online speech or writing.
The offence is cognizable and due to the vague and undefined purported
offences contained within it the power to punish speakers and writers
through arrest and threat of criminal trial is at the first instance granted to
complainants with offended sentiments and police officials. It is respectfully
submitted that such criminalisation of speech over the internet and mobile
phone communication is contrary to Articles 14, 19 and 21, because, inter
alia, the said section penalizes and restricts online speech to a much
greater degree than offline speech, restricts it in an unreasonable manner
contrary to Article 19 (1) (2) of the Constitution of India and that a
significant proportion of the offences in Section 66A do not even fall within
the permissible categories of restriction in Article 19 (2).
Similarly, the Information Technology (Intermediaries Guidelines) Rules,
2011 (hereinafter referred to as the “Intermediary Rules, 2011”) which are
formed under Section 79(2) read with Section 87(2)(zg) of the Information
Technology Act, 2000 also, inter alia, provide for “grossly harmful”,
“blasphemous”, “invasive of another's privacy”, “ethnically objectionable”,
“disparaging” such vague and undefined categories which require legal
determinations and effective censorship by private online service
providers, are contrary to Articles 14, 19 and 21, and are not reasonable
restrictions or falling within the permissible categories of restriction in
Article 19(2).
The Information Technology (Procedure and Safeguards for Blocking for
Access of Information by Public) Rules, 2009 which have been made
under Section 69A read with Section 87(2)(z) of the Information
Technology Act, 2000 similarly provide for blocking of web pages in India
without proper publication or notice to public containing the reasons for
blocking of websites. Further the process for blocking of websites is
entirely secret and ex facie fail to meet constitutional safeguards of natural
justice under Articles 19 and 21. The unreasonably restrictive procedure
for banning websites in addition, does not meet the procedural natural
justice standards for book banning; e-books may thus be banned easily
and secretively, immune to legal challenge as compared with their paper
counterparts. As such the rules concerning the blocking of websites in their
preset form are violative of Article 14 of the Constitution of India.
The Petitioners are concerned that Section 66A, the Blocking Rules, 2009
and Intermediaries Rules, 2011 all promote censorship on the Internet and
conflict with the protections under Articles 14, 19 and 21 of the Constitution
of India and hence approach this Hon’ble Court under its extraordinary
jurisdiction under Article 32 of the Constitution of India.
Hence the present Petition.
LIST OF DATES
9TH JUNE, 2000 The Information Technology Act, 2000 (21 of 2000) is
notified in the official gazette and it comes into force.
25TH AUGUST,
2005
An Expert Committee on Review of the IT Act 2000 is
constituted which submits its Report as well as proposed
changes to the Information Technology Act, 2000.
6TH
DECEMBER,
2006
Pursuant to the suggestions of the Expert Committee on
Review of the IT Act 2000 the Information Technology
(Amendment) Bill No. 96 of 2006 is introduced before the
LokSabha.
15TH
DECEMBER,
2006
The Information Technology (Amendment) Bill No. 96 of
2006 is referred to the Parliamentary Standing Committee
on Information Technology of the 14th LokSabha for
detailed examination and report.
7TH
SEPTEMBER,
2007
The Parliamentary Standing Committee on Information
Technology of the 14thLokSabha submits a detailed report
on the Information Technology (Amendment) Bill No. 96 of
2006.
22ND
DECEMBER,
2011
The Information Technology (Amendment) Bill No. 96-C of
2008 is introduced in the LokSabha.
23RD
DECEMBER,
2008
Information Technology (Amendment) Act, 2008 is passed
by the LokSabha.
5TH FEBRUARY,
2009
The Information Technology (Amendment) Act, 2008 is
notified and comes into effect. The Information
Technology (Amendment) Act, 2008:
a. Inserts Section 66A.
b. Inserts Section 69A under which the Website
Blocking Rules, 2009 are made.
c. Substitutes Section 79 under which the
Intermediary Guidelines Rules, 2011 are made.
27TH
OCTOBER,
2009
The Information Technology (Procedure and Safeguards
for Blocking for Access of Information by Public) Rules,
2009 (hereinafter referred to as the “Blocking Rules,
2009”) are notified under Section 69A read with Section
87(2)(z) of the Information Technology Act, 2000. The
Blocking Rules, 2009 provide the power to the Central
Government to block websites in India without publication
of the Blocking Order in the Official Gazette or providing
reasons to the public for such an Order. No public
consultation has been carried on these rules till date.
7TH FEBRUARY,
2011
Respondent No. 2 releases the Information Technology
(guidelines) Draft Rules, 2011 (hereinafter the “Draft
Rules”) for a purported public consultation inviting views
and comments till 28thFebruary, 2011. The consultation
was carried out in a secretive manner where the
comments received on the Draft Rules were not made
public, neither reasons were provided for the acceptance
or rejection of the comments.
7TH FEBRUARY
TO 28TH
FEBRUARY,
2011
Various responses are sent by Civil Society, Individuals
and Industry Associations to Respondent No. 2 which
object to the (Intermediaries guidelines) Draft Rules, 2011
on grounds that they violate the constitutional right to free
speech and expression. These comments are not posted
by Respondent No.2 or are made accessible to the public
despite a purported public consultation. The comments
received are not discussed and reasons are not assigned
for their acceptance or rejection either.
11TH APRIL
2011 The Information Technology (Intermediaries Guidelines)
Rules, 2011 are notified by Respondent No. 1 and come
into force. The Information Technology (Intermediaries
Guidelines) Rules, 2011 retain the character and content
of (Intermediaries guidelines) Draft Rules, 2011 which had
been previously been pointed out as an unreasonable
restriction on the exercise of the constitutional right to
speech and expression.
11TH MAY,
2011
Due to mass public outcry and media reports, a purported
clarification to the Information Technology (Intermediaries
Guidelines) Rules, 2011 titled as the, “Exemption from
Liability for Hosting Third Party Information: Diligence to
be Observed under Intermediary Guidelines Rules” is
issued by Respondent No. 1. The clarification which is in
the form of a press release seeks to clarify the scope of
the Information Technology (Intermediaries Guidelines)
Rules, 2011.
28TH JUNE,
2012
The National Crime Records Bureau, releases the Cyber
Crime statistics for the offences registered for the year
2011. The chapter relating to Cyber Crimes records an
alarming increase in the registration of Cyber Crimes
which has jumped from 996 in 2010 to 1791 in 2011. The
data also records that more than half of the offences have
been registered against accused in the 18-30 age group.
20TH AUGUST,
2012
The Central Government through a Press Release
acknowledges issuing four blocking orders dated,
18.08.2012, 19.08.2012, 20.08.2012 and 21.08.2012
which order the blocking of various websites in India.
These Orders do not make reference to the Blocking
Rules, 2009 and are not made public. These four blocking
orders are subsequently leaked online by the Economic
Times
29TH
NOVEMBER,
2012
A meeting of the Cyber Regulation Advisory Committee is
held under the Chairmanship of Shri Kapil Sibal, Union
Minister of Communication and Information Technology
which arrives at a consensus that provisions of Section
66A and 79 of the Information Technology Act, 2000 are
contextual and suitable clarifications in the form of
guidelines would be issued by the Government to the
States and Union Territories without any changes to the
provisions themselves.
9.01.2013 The Department of Electronics and Information
Technology issues an Advisory on the application of
Section 66A of the Information Technology Act whereby it
advises state governments, that in case of any cases
registered under Section 66A an advisory may be issued
to the police stations to obtain sanction of the Inspector
General of Police prior to the arrest.
18.03.2013 The Department of Electronics and Information
Technology issues another Clarification on the Information
Technology (Intermediary Guidelines) Rules, 2011 under
which it stated that the words “…..shall act within thirty-six
hours…” as mentioned in sub-rule (4) of Rule 3 have an
intended meaning that the intermediary shall respond or
acknowledge to the complainant within thirty six hours of
receiving the complaint/grievances about any such
information as mentioned in sub-rule (2) of Rule 3 and
initiate appropriate action as per law. This is the second
clarification which has been issued by the Union of India
to the Information Technology (Intermediary Guidelines)
Rules, 2011.
21.03.2013 The parliamentary committee on delegated legislation in
its 31st Report inter alia examines the Information
Technology (Intermediaries Guidelines) Rules, 2011 and
states at several instances that the rules are ultra vires
the principal legislation, i.e. Section 79 of the IT Act.
2013 ONWARDS Various incidents involving the use of Sec. 66A receive
media attention which highlights the arbitrary prosecution
resulting from vague and undefined terms. Further
instances of websites blocked, intermediaries asked to
takedown content without adequate reason or recourse
come to light.
19TH SEPT
2013
Hence the present petition filed under article 32 of the
Constitution of India
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. ____ OF 2013
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
IN THE MATTER OF:
PEOPLES’ UNION FOR CIVIL LIBERTIES
Through its General Secretary Dr. V. Suresh
Having its Office at 81 Sahyog Apartments,
Mayur Vihar Phase I,
Delhi-110091
…PETITIONER
Versus
1. UNION OF INDIA
Through Secretary
Ministry of Home Affairs
North Block, Parliament House
New Delhi
…Respondent No. 1
2. MINISTRY OF COMMUNICATIONS & INFORMATIONTECHNOLOGY,
Department of Telecommunications.1110, Sanchar Bhawan, Ashoka Road, NewDelhi, Through its Secretary
…Respondent No. 2
3. MINISTRY OF LAW & JUSTICEThrough its Secretary4th Floor A Wing Shastri Bhawan New Delhi: 110001 ,India
…Respondent No. 34. STATE OF WEST BENGAL
Through its Chief Secretary,Writers' Buildings.Kolkata-700 001 …Respondent No. 4
A WRIT PETITIONJ UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA
TO
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS OTHER COMPANION JUSTICES OF
THE HON’BLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHOWETH:
1. That this is a Writ Petition under Article 32 of the Constitution of
India by way of a Public Interest Litigation (“PIL”), challenging the
constitutional validity of the provisions of the Information Technology
Act, 2000 and the rules the framed thereunder, namely: a. SECTION
66A OF THE INFORMATION TECHNOLOGY ACT, 2000, b.THE
INFORMATION TECHNOLOGY (PROCEDURE AND SAFEGUARDS FOR
BLOCKING FOR ACCESS OF INFORMATION BY PUBLIC) RULES, 2009
formed under Section 79(2) read with Section 87(2)(zg) of the
Information Technology Act, 2000; and c.THE INFORMATION
TECHNOLOGY (INTERMEDIARIES GUIDELINES) RULES, 2011 (formulated
under Section 69A read with Section 87(2)(z) of the Information
Technology Act, 2000). The impugned provisions are violative of
Articles 14, 19 and 21 of the Constitution of India; not only do they
provide for arbitrary censorship of free expression but Section 66A of
the IT Act has also been unjustly, unfairly and flagrantly invoked in
various States of the country criminalizing even the most apparently
innocent of expressions thereby imperilling fundamental rights.
Citizens have been arrested and put on trial to penalize innocuous
expressions of speech contrary to Article 19 of the Constitution of
India as well as Articles 14 and 21 of the Constitution.
1A. The Petitioner is not a registered body but an association of
persons. The present petition is being signed by the authorised
representative of the Petitioner, Dr. V. Suresh, General Secretary of
the Petitioner.
2. The Petitioner has not approached any authority for the redressal of
the grievances and the prayers made in the present Petition.
3. The Peoples’ Union for Civil Liberties (PUCL) was established by
Shri Jai Prakash Narain, Acharya Kriplani, Krishna Kanth and others.
Shri V.M Tarkunde, Rajni Kothari, K.G. Kannabiran and others were
associated with PUCL as its President. The organization has 25
state branches all over the Country. PUCL has been raising
awareness about civil liberties and human rights and also fighting for
their protection. The PUCL has conducted many fact finding
enquiries and has compiled several reports on human rights
violations. Among several important cases fought by the PUCL, few
are: Telephone tapping case (1997) 1 SCC 301; Fake encounter in
Manipur (1997)3 SCC 463; Disclosure of criminal background and
assets by candidates (2003) 9 SCC 490; Challenge to POTA (2004)
9 SCC 980; and Right to food which is still pending in this Hon’ble
Court.
BRIEF FACTS
4. The present petition relates to the provisions of the
Information Technology Act, 2000 (hereinafter the “IT Act”) whose
principal aims at the time of enactment was to regulate electronic
commerce. To this end, the legislation of the IT Act was prompted by
5. The Model Law on Electronic Commerce drafted in 1996 by
the United Nations Commission on International Trade Law
(UNCITRAL) with the objective of standardizing national legislations
to facilitate electronic commerce. Thus the Information Technology
Act, 2000, modeled with modifications on the abovementioned
Model was introduced to provide legal recognition for transactions
carried out by means of electronic communication, commonly
referred to as "electronic commerce", which involve the use of
alternative to paper-based methods of communication and storage
of information to facilitate electronic filing of documents with the
Government agencies.
6. That in 2005, as per the powers under Sec. 88 of the IT Act,
2000 an Expert Committee on Review of the IT Act was constituted
by the Central Government. On 25th August, 2005, the Expert
Committee submitted its Report and proposed changes to the IT Act.
It is pertinent to note that the Expert Committee in the report and in
the changes it submitted:
a. Did not suggest any provision analogous to Sec. 66A of the
Information Technology Act, 2000.
b. The proposed changes asked for a complete redrafting of
Section 79 as they found the existing law to be vague and
onerous for intermediaries to apply.
c. Did not contain any provisions for the blocking of websites or
analogous provision to Sec. 69A
A true copy of the Report as well as proposed changes to the IT Act
as suggested by the Expert Committee are attached herein and are
marked as ANNEXURE – P/1(Pages ).
7. That pursuant to the suggestions of the Expert Committee on
Review of the IT Act 2000 the Information Technology (Amendment)
Bill No. 96 of 2006 was introduced before the Lok Sabha on 6th
December, 2006. Some features of the Information Technology
(Amendment) Bill No. 96 of 2006 included:
a. This version of the amending Bill contained Sec. 66A;
however it did so only with a term of imprisonment which
extended to two years, the offence also being non-cognizable.
b. It is pertinent to note that Sec. 66A was not inserted pursuant
to any recommendation by the Expert Committee.
c. A redrafted version of Sec. 79 which provided exemption from
liability to Internet Intermediaries was also contained. Sec.
79(4) provided the Central Government with the power to
prescribe guidelines through delegated legislation, to be
observed by such intermediaries. The Report stated that, the
guiding principles for the redrafted Sec. 79 were derived from
the European Union E-Commerce Directive (2000/31/EC).
d. There was no provision for the blocking of websites or a
provision similar to Section 69A
A true copy of the Information Technology (Amendment) Bill No. 96
of 2006 dated 2006 is attached herein and is marked as
ANNEXURE – P/2(Pages ).
8. On being tabled before the Lok Sabha, the Information Technology
(Amendment) Bill No. 96 of 2006 was referred to the Parliamentary
Standing Committee on Information Technology. The said Standing
Committee submitted a detailed report on the Information
Technology (Amendment) Bill No. 96 of 2006 on 7th September,
2007. Some of the pertinent points are :
a. The Department of Information Technology of Respondent No.
1 submitted that Sec. 66A had been inserted to address
issues pertaining to spam. Para 20 of the recommendations
suggested increasing the jail term to three years and making
the offenses cognizable. In para 35 of its recommendations,
the Standing Committee noted that a close scrutiny of Section
66A revealed that it did not deal adequately with the issue of
spam emails. Spam emails are usually unsolicited commercial
emails which are sent by online marketers. As per the report,
Sec. 66A was intended only to tackle cases of spam emails.
b. In Paras 8-10 of its recommendations, the Parliamentary
Standing Committee found fault with the 2006 version of the IT
Act (the Information Technology (Amendment) Bill No. 96 of
2006) and noted that:
(i) there was no scope for ambiguity in language of Sec. 79 of
the IT Act which provided for the exemption from liability for
intermediaries;
(ii) the enabling provisions should be incorporated in the
parent act itself; leaving it to the Central Government to
forumulate guidelines would result in ambiguity; and
(iii) specific legislative action was necessary rather than self
regulation by intermediaries.
c. There was no provision for the blocking of websites or a
provision similar to Section 69A.
A true copy of the Report of the Standing Committee on Information
Technology on the of the 14th Lok Sabha on the Information
Technology (Amendment) Bill No. 96 of 2006 dated 2006 is attached
herein and are marked as ANNEXURE – P/3(pages ).
9. That pursuant to the Report of the Standing Committee on
Information Technology of the 14th Lok Sabha on the Information
Technology (Amendment) Bill No. 96 of 2006, requisite changes
were made to the Amendment Bill which was introduced on 22nd
December, 2008, and was passed on 23rd December, 2008.
A true copy of the Information Technology (Amendment) Act, 2008
dated 2008 is attached herein and is marked as ANNEXURE –
P/4(pages ).
10. That the Information Technology (Amendment) Act, 2008 was
notified on 5th February, 2009 and came into effect. It made
substantial amendments to various provisions in the IT Act. The
various amendments included:
a. Insertion of Section 66A of the Information Technology Act,
2000
b. Insertion of Section 69A under which the Website Blocking
Rules, 2009 have been formulated.
c. Substitution of Section 79 under which the Intermediary
Guidelines Rules, 2011 are formulated.
SECTION 66A OF THE INFORMATION TECHNOLOGY ACT, 2000
11. That Section 66A of the IT Act deals with punishment for
sending offensive messages through communication service, etc.
and reads as follows:
“Any person who sends, by means of a computer resource
or a communication device,-
(a) any information that is grossly offensive or has
menacing character; or
(b) any information which he knows to be false, but for the
purpose of causing annoyance, inconvenience, danger,
obstruction, insult, injury, criminal intimidation, enmity,
hatred, or ill will, persistently makes by making use of such
computer resource or a communication device,
(c) any electronic mail or electronic mail message for the
purpose of causing annoyance or inconvenience or to
deceive or to mislead the addressee or recipient about the
origin of such messages
shall be punishable with imprisonment for a term which may
extend to three years and with fine.”
That Section 66A was inserted vide Information Technology
(Amendment) Act, 2008. It should be noted that this version was
totally different from that suggested by the Parliamentary Committee.
INSTANCES OF THE APPARENT MISUSE OF SECTION 66A, IT ACT
12. The repeated use of the arbitrary, subjective and unclear
nature of the terminology used in sec. 66A by different governments
to prosecute persons who accidentally run foul of the provisions, has
been widely reported by the media. The present Petitioner craves
leave to present a few such instances which illustrate the inherent
flaws in the construction of offences which result in the abuse of the
law:
a. Mayank Mohan Sharma and KVJ Rao, two Air India
Employees were arrested in Mumbai, Maharashtra for certain
posts on a closed facebook group in a purported case of inter
union rivalry. Subsequently, the Police have registered an FIR
under Sec. 66A against the complainant Mr. Sagar Karnik as
well.
b. Shaheen Dhada, a student was arrested in Palghar,
Maharashtra for posting a “status message” or “post” on social
networking website Facebook protesting an unofficial bandh
imposed due to the death of a politician. Her friend Renu
Srinivasan, also a student, was also arrested for merely
“liking” the post.
c. Aseem Trivedi a cartoonist was arrested in Mumbai,
Maharashtra for posting cartoons on his website and on the
social networking website facebook.
d. Ravi Srinivasan, a 46-year-old businessman in Puducherry,
was arrested for posting a “tweet” on micro blogging website
Twitter criticizing the son of a prominent politician.
e. A FIR is filed against Jagdish Patil in Thane, Maharashtra for
downloading the picture of a girl from social networking
website Facebook and sending it along with a birthday cake to
her.
True copies of details of these instances have been collectively
annexed herein and are marked as ANNEXURE – P/5
(COLLY)(Pages ).
IN RE: SECTION 66A OF THE IT ACT, 2000
13. It is submitted that due to vague, indeterminate and undefined
phrases which have been used in the construction of Section 66A
and given the status of ‘offence’, the legal and constitutional rights of
the people have been put in grave peril; they can be subjected to
criminal action even in totally innocuous situations. Such arbitrary
application results from vague phrasing and an absence of any clear
legislative definition of the expressions used in Section 66A. It is
pertinent here to note that many of the terms used in Sec. 66A have
not been defined either under the IT Act, 2000 or under the General
Clauses Act or under any other legislation, to the best of the
Petitioner’s knowledge. This unfortunately leaves the interpretation
of the provisions, which criminalizes even unintended, innocent acts,
to the police thereby seriously jeopardizing fundamental rights of
citizens to free speech and liberties.
14. For instance, the absence of any definition or any explanation
as to the scope of the terms “grossly offensive” or “menacing
character” in Sec. 66A(a), results in making acts which were
innocent of any criminal intention, an offence under Sec. 66A leaving
interpretation of the provisions to the whims and fancies of
prosecuting agencies.. The abounding vagueness of the terms
apart, the absence of limitations to the use of sec. 66A itself is
against Articles 19 and 21 of the Constitution, and as per the general
rule that criminal statutes should be defined certainly and strictly
construed. As a consequence of the vague phrasing they are ripe
for arbitrary application and may be struck down as unconstitutional
for being vague.
15. That it is pertinent to mention that Sec. 66A does not contain
one offence, but contains multiple offences which may be applied to
any speech or content uploaded online. In as much as Sec. 66A
lacks any coherence and structure as to the commission of a single
offence it does not contain any definitive ingredients of an offence
which are specified in the sub-sections.
16. It is submitted that the lack of coherence to tackle any
particular offence is most noticeable in Sec. 66A(b), which contains
a list of grounds attracting the offence. It is pertinent to mention that
most of the phrases such as, “annoyance” or “inconvenience” are
vague, imprecise of definition and inchoate and do not contain any
ingredients which can be easily and uniformly applied. It is similarly
relevant to highlight that even in respect of phrases for which
analogous criminal offences exist, there is no reference made to
such distinct sections. For instance, when Sec. 66A(b), states
“criminal intimidation” it does not make reference to Sec. 503 of the
Indian Penal Code, 1860 which contains the offence of criminal
intimidation. The absence of such reference to similar provisions in a
separate enactment, absent a definition of the offence along with the
conspicuous absence of any of the ingredients for criminal
intimidation creates a context ripe for arbitrary use abuse or misuse
of the law and may lead to a contrary interpretation of the offence of
criminal intimidation merely because it is carried online.
17. The offences u/s 66A are not only undefined they are also
broadly worded; so much so, even when the best construction is
placed on them they result in a duplication of offences which are
contained under other existing penal laws which are adequate to
check the commission of crimes. The point to be noted here is that
sec. 66A repeats existing offences without however, incorporating
the legislative and judicially evolved checks and balances guiding
their interpretation to specific acts as also guiding prosecutions,
including the existence of ingredients of the offence warranting
invoking the law as well as the safeguards and exceptions which
safeguard the liberties and fundamental rights of persons alleged to
have committed the crimes. In this respect a table listing the terms
under Section 66A are provided below:
S. 66A – (a)
Anyinformationthat is:
PurportedSame orsimilar wordsappearing inotherlegislations
Imprisonmentterm/fine orboth
Lack of similarity
Grosslyoffensive
Section 20(b)Indian PostOffice Act,1898
Imprisonmentfor a termwhich mayextend to oneyear or with afine or both
Section 20(b) onlyapplies in one to onecommunications in whichthere are personalthreats etc. made to therecipient and not forcontent which is postedpublicly.
Moreover the presentpunishment underSection 66A is far greaterthan that under Section20(b) of the Indian PostOffice Act.
Menacing Section 503(criminalintimidation)of the IndianPenal Code,1860
Imprisonmentwhich mayextend to twoyears or withfine or both.
Section 503 of the IPCdoes not mention theterm, “menacing”.Moreover no legislativeguidance is present inSection 66A whereby areference is made to theoffence under Section
503 of the IPC.
(b)
Informationhe knows tobe false butfor thepurpose ofcausing:
annoyance Section 507IPC
[Criminalintimidationby ananonymouscommunication]
Imprisonmentfor a termwhich mayextend to twoyears
Section 507 of the IndianPenal Code is anaggravated offencewhich takes from thelanguage of the offenceof criminal intimidationunder Section 503 of theIndian Penal Code.
Here it is pertinent tomention that Section 507or 503 do not contain anyreference to the termannoyance. They refer tothe causation of a threat.
Moreover the linkage ofsection 507 to the term,“annoyance” is acomplete non-sequiturgiven that there is norequirement of anonymityfor “annoyance” to beinvoked under Section66A.
Inconvenience
Section 268[PublicNuisance]
No specificpenalty hasbeenprovided. Incase theaggravatedand specified
There is no linkagebetween the term“inconvenience” and thereference to Section 268of the Indian Penal Code.There is no mention orreference to the term,
classes ofpublicnuisance arenot satisfied aresiduarypenalty of Rs.200 fine isimposed.
“inconvenience” insection 268 of the IndianPenal Code.
Section 268 of the IndianPenal Code after onlystates proximately, “acommon nuisance is notexcused on the groundthat it causes someconvenience oradvantage.” This termclearly is carved aslimiting a defence of“convenience” to theoffence of “publicnuisance” and in no wayis containing an offenceof “inconvenience”.Hence, no guidance canbe laid on it.
Danger Section 268 Same asabove
Where it isacknowledged that theterm, “danger” does findmention under Section268 of the Indian PenalCode, it does as aningredient to an offenceof Public Nuisance asopposed to an offence byitself. Hence, thereference under Section66A which is not acohesive section dealingwith a singular offenceand merely containsdistinct words, such as“danger” is not made out.
Obstruction Section 268 Same asabove
Where it isacknowledged that theterm, “obstruction” doesfind mention underSection 268 of the IndianPenal Code, it does as
an ingredient to anoffence of PublicObstruction as opposedto an offence by itself.Hence, the referenceunder Section 66A whichis not a cohesive sectiondealing with a singularoffence and merelycontains distinct words,such as “obstruction” isnot made out.
Insult Sections 504,509 & 295,295A, 298
Periods ofimprisonmentfrom 2 years.
Firstly each of theprovisions mentioned ofthe Indian Penal Codecontemplate “insult” asthe ingredient of aoffence as opposed to bean offence by itself.
For instance, Section 504of the Indian Penal Code,1860, “intentional insultwith intent to provokebreach of the peace” andSection 509 of the IndianPenal Code, 1860, “word,gesture or act intended toinsult the modesty of awoman”.
Injury Section 503,Explanation
Imprisonmentwhich mayextent to twoyears
Section 503 of the IndianPenal Code, 1860 refersto the offence of criminalintimidation and has nonexus with the term,“injury” which appears inisolation under Section66A.
Moreover, the term“injury” as it appears onlywithin the explanation
within the sentence that,“a threat to injure thereputation of anydeceased person inwhom the personthreatened is interested,is within this section.”The term “injury” withinthis explanation does notin any way explain orcontain the offence of“injury”.
Criminalintimidation
Section 503IPC
Imprisonmentwhich mayextend to twoyears
Even though the IndianPenal Code withinSection 503 contains anoffence of criminalintimidation no referenceis made to it.
enmity Section505(2) IPC,295, 295A,298
Imprisonmentwhich mayextend fromtwo to threeyears.
Firstly each of theprovisions mentioned ofthe Indian Penal Codecontemplate “enmity” asthe ingredient of aoffence as opposed to bean offence by itself.
For instance, Section505(2) of the IndianPenal Code, 1860, readsas, “statements creatingor promoting enmity,hatred or ill- will betweenclasses”. Here “enmity” isonly an ingredient to anoffence as opposed tothe offence itself.
Hatred or illwill
Section505(2) IPC
Imprisonmentwhich mayextend to twoyears
Firstly each of theprovisions mentioned ofthe Indian Penal Codecontemplate “hatred or illwill” as the ingredient of aoffence as opposed to bean offence by itself.
For instance, Section505(2) of the IndianPenal Code, 1860, readsas, “statements creatingor promoting enmity,hatred or ill- will betweenclasses”. Here “hatred orill will” is only aningredient to an offenceas opposed to theoffence itself.
18. An egregious instance of the use of Section 66A is the case
against Prof. Ambikesh Mahapatra and Sh. Subrata Sengupta. The
FIR against them for circulating a cartoon to their housing society
members was been filed (by a non recipient of the email) under
Section 66A of the Information Technology Act, 2000 as also
u/sections 500 (defamation) and 509 (insulting the modesty of a
woman through word, gesture or act) of the Indian Penal Code,
1860. The ingredients for the offence of defamation as well as
insulting the modesty of a woman are clearly contained under the
Indian Penal Code. Also, Section 499 of the Indian Penal Code
which contains the offence of defamation clearly contains exceptions
under which an act of parody/ satire would clearly qualify. In the
absence of any definition, ingredients or exceptions, Section 66A
imposes an onerous and unfair burden on the persons prosecuted
under it leaving it entirely to the subjective interpretation and
satisfaction of the complainant, the police authorities and courts as
to what constitutes the offence of “annoyance” and inconvenience”.
The unnecessary repetition of the offence under the IPC in sec. 66A
apart, it also needs to be pointed out that provisions under the Indian
Penal Code, 1860 are not limited to acts which are done offline and
applies as much to electronic communications. Courts have
repeatedly and purposively interpreted the provisions of the Indian
Penal Code, 1860 to apply them with the advance in technology.
Hence, it is evident that Sec. 66A results in duplication of existing
penal provisions without any concomitant purpose and with an
absence of ingredients and safeguards, thereby shifting the burden
of proof and changing the fundamental principles of criminal law.
only makes the burden on the accused harsher.
19. That Prof Ambikesh Mahapatra and Mr. Subrata Sengupta- then
office bearer of the Housing Society- were taken to the police station
at 11 pm on 12th April for circulation of the above email under
“protective custody”, without any diary number concerning the same
being recorded. Indeed an FIR was only filed thereafter, by a Mr.
Amit Sardar who was not a recipient of the email in question, nor a
member of the New Garia Housing Society. On 12.04.2012 the said
FIR was filed at Police Station Purba Jadavpur bearing Case No.
50, under Sections 509/500/114 of the Indian Penal Code and
Section 66A(b) of the Information Technology Act, 2000 for allegedly
sending an email on 22.03.2012 to other members of their housing
society which attached a collage cartoon of a political leader based
on a parody of a scene from the Bengali movie Sonar Kella. The
FIR notes that at Serial No. 12 (reproduced below with the
typographical mistakes as contained in the original) that:
“The accused persons being aided and abetted with each
other intending to insult the modesty of women by exhibited
some objectionable thing and defamed dignatory and also
send Mail through computer among the members of New
Garia Housing Society concerning some dignatory and
thereby causing annoyance, insult and injury to them at the
abovenoted date, time place””
A copy of cartoon from Sonar Kella is annexed herein and is marked as
Annexure – P/5A.
20. A bench of Justice Asoke Kumar Ganguly, Justice NC Sil, and Shri
SN Roy of the West Bengal Human Rights Commission took suo
motu cognizance of the matter on 16.4.2012. The WBHRC directed
investigation of the matter by the Commissioner of Police, Kolkata,
the Additional Commissioner of Police, the OC of PUrba Jadavpur
police station as well as the Sub Inspector who arrested Professor
Mahapatra and Shri Sengupta . The Hon’ble WBHRC recorded as
follows:
13. It is clear from the manner in which both Professor Mahapatra
and Shri Sengupta were taken from the office of the society in a
police van to the police station at 11 p.m. on 12.04.2012 that they
were arrested by the police…. Even though the Code of Criminal
Procedure Code does not define what is meant by arrest, but in
Section 41 thereof enumerates the situations when Police may
arrest without an order of a Magistrate or without a Warrant. None of
the situations contemplated in Section 41(1) is present in this case.
Shri Mishra and other police officers tried to justify by saying that
those two persons were taken in “protective custody” by the police
but admitted that there is nothing known as “protective custody” in
law.
14. Protective custody by the police can be only resorted to in case
of a minor or a lady who is trafficked or a person who is insane. The
concept of protective custody is wholly misplaced in respect of two
adult men. On the other hand Shri Sanjoy Biswas who was present
on the spot admitted before the Commission that there was a case
of wrongful confinement of the arrestees against the agitated mob
and a case under Section 341 IPC, which is a cognizable offence,
was made out. Police did not arrest anyone from those agitated
persons who forcibly confined the arrestees and even though the
Police Station one and half kilometer away. On the other hand police
arrested those two elderly persons who were peacefully sitting
confined in the office of the Society.
15. At the time police arrested those two persons no FIR was lodged
against them and the subject cartoon, allegedly circulated which was
filed with the FIR was not even seen by the police. At the time of
their arrest only allegations against those persons were that they
circulated by e-mail a cartoon which was derogatory to Hon’ble Chief
Minister and they carried a door to door derogatory campaign within
the said Society.
21. The Hon’ble WBHRC went on to explain the political and cultural
context to the cartoon circulated:
“22. In this case, the cartoon is based on the story line in a featurefilm meant for children called “Sonar Kella” directed by Late SatyajitRay. The film was very popular and enjoyed by children and theadults alike.
23. In the film a part of the story is that one Professor was pusheddown the mountain by the villain and when the professor was notvisible, the villain told Mukul, the child-hero in the film, that he hadvanished. Following that story sequence, here the cartoon depictsthat the Hon‟ble Chief Minister of West Bengal tells Mr. Mukul Roy,the newly appointed Railway Minister that the previous RailwayMinister had “vanished” and Indian Railway is depicted as SonarKella – the golden fort. This cartoon obviously referred to the recentpolitical events in the aftermath of removal of Mr. Dinesh Trivedi, theprevious Railway Minister
24. No one can attribute even remotely any suggestion which is lewdor indecent and slang in connection with the said film or even inrespect of the subject cartoon.”
22. Indeed the Hon’ble WBHRC made clear that the FIR did not disclose
the ingredients of any offence, as such the West Bengal State
Government, Respondent No. 2 herein, was directed to compensate
Prof. Mahapatra and Mr. Sengupta by payment of Rs. 50,000.
Although two months were provided to the West Bengal State
Government to execute the recommendations, they have not done
so till the present date.
23. Subsequently, a charge sheet has been filed against Prof.
Mahapatra and Mr. Sengupta on 19.07.2012 whereby the charges
under Sections 509/500/114 of the Indian Penal Code were been
dropped, charges under Section 66A(b) of the Information
Technology Act, 2000 and 66A(c) remain.
24. In addition to duplication of existing offences, Sec. 66A in the
absence of any rationale increases jail terms of existing offences,
which have already been made punishable under the Indian Penal
Code.
25. It is also pertinent to mention that Sec. 66A as a section only
applies to online speech. The same content if published offline by
way of a book or a pamphlet, may not invite any criminal charge
against the author under other laws, even though it is prosecutable
u/s 66A. . Such discrimination in application of a penal provision
solely based on the medium of communication in the absence of any
reasonable differentia plainly infringes upon the right to equality
under Article 14 of the Constitution of India.
26. That it is pertinent to note that the section has been applied
even in cases where an online communication occurs through a
private medium of communication not meant for public circulation.
Hence, the question of the material being "grossly offensive" or
question of the communication piece being "for the purpose of
causing annoyance, inconvenience, danger, obstruction, insult,
injury, criminal intimidation, enmity, hatred, or ill will," would only
arise if the recipient of such communication feels the same. It is
respectfully stated that in addition to other illegalities, this attack on
the privacy of a user of internet communication is ultra vires the
Article 21 and patently against the intention and spirit of the Act.
27. That the ambiguity and vagueness of the terms mentioned in
the impugned section apart, the wording of sec. 66A results in
attributing knowledge to the maker of the communication by the
sheer fact of making the communication. In the absence of rules or
guidelines elaborating or explaining what acts are lawful from those
which are not, , a person, living in a diverse society such as ours
with different standards/ tolerance levels for people, cannot possibly
fathom what might offend someone. Therefore it is very possible that
a person may attract criminal proceedings against herself/himself
even though the person did not even remotely intend to cause any of
the effects mentioned in the impugned section and is unaware as to
what would satisfy the words mentioned in Section 66A. It is hence,
not possible for a person to follow the "law" when he/she does not
know what constitutes an offence under it. It is trite law that penal
provisions must not be vague and ambiguous. Such vagueness and
ambiguity not only offends Article 21 but is also impinging the right to
speak freely as guaranteed by the Constitution.
SECTION 69A OF THE INFORMATION TECHNOLOGY ACT, 2000
28. Section 69A of the IT Act reads as:
“69-A. Power to issue directions for blocking for public access of anyinformation through any computer resource .—(1) Where the CentralGovernment or any of its officers specially authorised by it in thisbehalf is satisfied that it is necessary or expedient so to do, in theinterest of sovereignty and integrity of India, defence of India,security of the State, friendly relations with foreign States or publicorder or for preventing incitement to the commission of anycognizable offence relating to above, it may subject to the provisionsof sub-section (2), for reasons to be recorded in writing, by order,direct any agency of the Government or intermediary to block foraccess by the public or cause to be blocked for access by the publicany information generated, transmitted, received, stored or hosted inany computer resource.
(2) The procedure and safeguards subject to which such blocking foraccess by the public may be carried out, shall be such as may beprescribed.
(3) The intermediary who fails to comply with the direction issuedunder sub-section (1) shall be punished with an imprisonment for aterm which may extend to seven years and shall also be liable tofine.”
29. That the Information Technology (Procedure and Safeguards
for Blocking for Access of Information by Public) Rules, 2009 have
been made by Respondent No. 1 for blocking access to websites
pursuant to the powers vested under Section 69A of the Information
Technology Act, 2000. The Blocking Rules, 2009 contemplate under
Rule 3 for a “designated officer” being an officer not below the rank
of joint secretary in the central government to issue blocking orders
under Rule 5. Such directions are made suo motu or by request of
Nodal Officers appointed by Central, State Government and UT
Ministries or Departments, or Central Government agencies as per
Rule 4. Rule 3, 4, 5 of the Blocking Rules read as under:
“3. Designated Officer.—The Central Government shalldesignate by notification in Official Gazette, an officer of theCentral Government not below the rank of a Joint Secretary,as the” Designated Officer”, for the purpose of issuingdirection for blocking for access by the public any informationgenerated, transmitted, received, stored or hosted in anycomputer resource under sub-section (2) of section 69-A ofthe Act.4. Nodal Officer of organization.—Every organization for thepurpose of these rules, shall designate one of its officer as theNodal Officer and shall intimate the same to the CentralGovernment in the Department of Information Technologyunder the Ministry of Communications and InformationTechnology, Government of India and also publish the nameof the said Nodal Officer on their website.
5. Direction by Designated Officer.—The Designated Officermay, on receipt of any request from the Nodal Officer of anorganization or a competent Court, by order direct any Agency
of the Government or intermediary to block for access by thepublic any information or part thereof generated, transmitted,received, stored or hosted in any computer resource for any ofthe reasons specified in sub-section (1) of section 69-A of theAct.”
30. That the Rule 6 reads as follows:
“6. Forwarding of request by organization.—(1) Any personmay send their complaint to the Nodal Officer of theconcerned organization for blocking of access by the publicany information. generated, transmitted, received, stored orhosted in any computer resource:
Provided that any request, other than the one from theNodal Officer of the organisation, shall be sent with theapproval of the Chief Secretary of the concerned State orUnion territory to the Designated Officer:
Provided further that in case a Union territory has no ChiefSecretary, then, such request may be approved by theAdviser to the Administrator of that Union territory.
(2) The organization shall examine the complaint receivedunder sub-rule (1) to satisfy themselves about the need fortaking of action in relation to the reasons enumerated insub-section (1) of section 69-A of the Act and after beingsatisfied, it shall send the request through its Nodal Officerto the Designated Officer in the format specified in theForm appended to these rules.
(3) The Designated Officer shall not entertain anycomplaint or request for blocking of information directlyfrom any person.
(4) The request shall be in writing on the letter head of therespective organization, complete in all respects and maybe sent either by mail or by fax or by e-mail signed withelectronic signature of the Nodal Officer:
Provided that in case the request is sent by fax or by e-mailwhich is not signed with electronic signature, the NodalOfficer shall provide a signed copy of the request so as toreach the Designated Officer within a period of three daysof receipt of the request by such fax or e-mail.
(5) On receipt, each request shall be assigned a numberalongwith the date and time of its receipt by the DesignatedOfficer and he shall acknowledge the receipt thereof to the
Nodal Officer within a period of twenty four hours of itsreceipt.”
31. That the Rules also contemplate a committee to examine
requests by “any person” under Rule 7, when such requests for
blocking of websites are forwarded by the Nodal Officers with
approval from a Chief Secretary. The procedure for the examination
of such requests is stated under Rule 8. Rule 7 and 8 read as
follows:
“8. Examination of request.—(1) On receipt of requestunder rule 6, the Designated Officer shall make allreasonable efforts to identify the person or intermediarywho has hosted the information or part thereof as wellas the computer resource on which such information orpart thereof is being hosted and where he is able toidentify such person or intermediary and the computerresource hosting the information or part thereof whichhave been requested to be blocked for public access,he shall issue a notice by way of letters or fax or e-mailsigned with electronic signatures to such person orintermediary in control of such computer resource toappear and submit their reply and clarifications, if any,before the committee referred to in rule 7, at a specifieddate and time, which shall not be less than forty-eighthours from the time of receipt of such notice by suchperson or intermediary.
(2) In case of non-appearance of such person orintermediary, who has been served with the noticeunder sub-rule (1), before the committee on suchspecified date and time, the committee shall givespecific recommendation in writing with respect to therequest received from the Nodal Officer, based on theinformation available with the committee.
(3) In case, such a person or intermediary, who hasbeen served with the notice under sub-rule (1), is aforeign entity or body corporate as identified by theDesignated Officer, notice shall be sent by way of lettersor fax or e-mail signed with electronic signatures to suchforeign entity or body corporate and any such foreignentity or body corporate shall respond to such a noticewithin the time specified therein, failing which thecommittee shall give specific recommendation in writingwith respect to the request received from the Nodal
Officer, based on the information available with thecommittee.
(4) The committee referred to in rule 7 shall examine therequest and printed sample information and considerwhether the request is covered within the scope of sub-section (1) of section 69-A of the Act and that it isjustifiable to block such information or part thereof andshall give specific recommendation in writing withrespect to the request received from the Nodal Officer.
(5) The designated Officer shall submit therecommendation of the committee, in respect of therequest for blocking of information alongwith the detailssent by the Nodal Officer, to the Secretary in theDepartment of Information Technology under theMinistry of Communications and InformationTechnology, Government of India (hereinafter referredto as the “Secretary, Department of InformationTechnology”).
(6) The Designated Officer, on approval of the requestby the Secretary, Department of InformationTechnology, shall direct any agency of the Governmentor the intermediary to block the offending informationgenerated, transmitted, received, stored or hosted intheir computer resource for public access within thetime limit specified in the direction:
Provided that in case the request of the Nodal Officer isnot approved by the Secretary, Department ofInformation Technology, the Designated Officer shallconvey the same to such Nodal Officer.
………………………………………………….
9. Blocking of information in cases of emergency.—(1) Notwithstanding anything contained in rules 7 and 8,the Designated Officer, in any case of emergencynature, for which no delay is acceptable, shall examinethe request and printed sample information andconsider whether the request is within the scope of sub-section (1) of section 69-A of the Act and it is necessaryor expedient and justifiable to block such information orpart thereof and submit the request with specificrecommendations in writing to Secretary, Department ofInformation Technology.
(2) In a case of emergency nature, the Secretary,Department of Information Technology may, if he issatisfied that it is necessary or expedient and justifiablefor blocking for public access of any information or partthereof through any computer resource and after
recording reasons in writing, as an interim measureissue such directions as he may consider necessary tosuch identified or identifiable persons or intermediary incontrol of such computer resource hosting suchinformation or part thereof without giving him anopportunity of hearing.
(3) The Designated Officer, at the earliest but not laterthan forty-eight hours of issue of direction under sub-rule (2), shall bring the request before the committeereferred to in rule 7 for its consideration andrecommendation.
(4) On receipt of recommendations of committee,Secretary, Department of Information Technology, shallpass the final order as regard to approval of suchrequest and in case the request for blocking is notapproved by the Secretary, Department of InformationTechnology in his final order, the interim directionissued under sub-rule (2) shall be revoked and theperson or intermediary in control of such informationshall be accordingly directed to unblock the informationfor public access.”
32. That Rule 14 of the Blocking Rules also contemplates the
constitution of review committee which shall meet at least once in
two months to review the directions for blocking. Rule 16 states that
all information regarding all requests and complaints received and
actions taken thereof shall remain confidential. Rule 14 and 16 reads
as follows:
“14. Meeting of Review Committee.—The ReviewCommittee shall meet at least once in two months andrecord its findings whether the directions issued underthese rules are in accordance with the provisions ofsub-section (1) of section 69-A of the Act and if is of theopinion that the directions are not in accordance withthe provisions referred to above, it may set aside thedirections and issue order for unblocking of saidinformation generated, transmitted, received, stored orhosted in a computer resource for public access.
…………………………………………………
16. Requests and complaints to be confidential.—Strict confidentiality shall be maintained regarding all
the requests and complaints received and actions takenthereof.
33. It is submitted that Rule 3 and Rule 5 of the Blocking Rules
are liable to be set aside as unreasonable, illegal and
unconstitutional since they do not provide any hearing or afford
natural justice to the author whose website is blocked prior to the
blocking. Indeed even after such a website is blocked, no list of
blocked websites is released to the public, nor are reasons for
blocking websites released to the owner of the website. It is pertinent
to mention that the orders for blocking under Rule 6 are passed after
compliance with recommendations of a Committee for Examination
of Blocking Requests under Rule 7. It is respectfully submitted that
no such Committee approval is required if the request for blocking is
made by a government agency and the Designated Officer under
Rule 5 may block such a website on his or her own decision.
34. The procedure for the blocking with reference to requests
made by individual persons under Rule 6 are set out under Rule 8.
Certain purported safeguards are incorporated under which
complaints by private individuals for blocking are examined.
Specifically, Rule 8(1), states that the Designated Officer shall make
reasonable efforts to identify, “the person or intermediary who has
hosted the information” and issue such person or intermediary a
show cause notice to submit a reply and clarifications as to why the
website should not be blocked. Herein it is pertinent to mention that
the person and the intermediary hosting the information is not the
author of the content and hence the author has no notice or hearing
as to the content being blocked. This is similar to a situation where a
notice is issued to a bookshop which stocks the impugned book as
opposed to the author who has authored the book.
35. That even after the Blocking Order has been issued under
Rule 5 of the Blocking Rules, there is no legal provision for the
communication of the Order to the Author who is the primary
affected party. There is also a marked absence of natural justice
under the Blocking Rules, 2009 as there is no communication of the
blocking order to the author or even the opportunity of a post
decisional hearing. Hence, the owner and the author of the content
have no opportunity for understanding the reasons for the
censorship of content and the blocking order passed by the
Designated Officer. Additionally, there is also no provision in the
rules to file an appeal against such a blocking order.
36. That it is also submitted in this regard that persons who are
intermediaries or host information are private companies providing
facilities for profit who do not have the requisite locus or interest to
contest or respond to notices which are issued under Rule 8(1).
Moreover, Rule 8(2) provides that if such notices are not responded
within 48 hours then the Committee for Examination of Blocking
Requests can make its recommendations for the blocking of the
website in the absence of such a reply/response. An intermediary
who fails to comply with a request can be imprisoned and fined
under Section 69A. This provides no check for arbitrary or motivated
or political blocking. If the ISP fails to comply, the ISP may be held
liable for offence. This, in effect makes complying with censorship a
necessary condition bargain in order for the ISP it to continue
operations. In essence the `level playing field’ notion is totally
negated, unfairly and unacceptably empowering the state authorities
thereby denuding and endangering the enjoyment of fundamental
rights of citizens and others.
37. That the provisions with respect to blocking of websites in
cases of emergency contained under Rule 9 are even more
problematic as they do not require the service of any notice to any
person before the blocking order is issued; and this lack of hearing is
not remedied by any post decisional hearing for such emergency
orders to the author or even the person or intermediary hosting the
website. Indeed the nature of the “emergency” has not been defined
either. In this context it will be useful to consider how courts have
addressed similar situations elsewhere. In Yildrim v Turkey [2012]
ECHR 2074, The European Court of Human Rights held that “a
restriction on access to a source of information was only compatible
with the [European Convention on Human Rights] if a strict legal
framework was in place regulating the scope of a ban and affording
the guarantee of judicial review to prevent possible abuses.” Further,
that Courts “should have had regard to the fact that such a measure
would render large amounts of information inaccessible, thus directly
affecting the rights of internet users and having a significant
collateral effect.” It will be pertinent here to highlight that this is the
first decision by an international tribunal regarding the whole sale
blocking of internet content
38. That one of most important safeguards which are present in
the Blocking Rules, 2009 is the constitution of a `Review Committee’
which under Rule 14 is mandated to meet at least once every two
months and record its finding whether the directions issued under
the rules are in accordance with Sec. 69A, IT Act. The review
committee has also been provided with the power to set aside
directions and issue order for unblocking. However, there appears to
be no provision to make public information regarding the
proceedings before such Review Committee or details of individual
cases being heard by the Committee or about Orders passed by
such Committee. In the absence of such information, the Review
Committee functions as an internal committee without public
involvement, engagement or participation making decisions which
vitally affects the rights of individual citizens and service providers
without their knowledge or participation.
39. Apart from this aspect, Rule 16 of the Blocking Rules, 2009
further states that information regarding any request, complaints and
actions shall be kept strictly confidential. It is respectfully submitted
that such secrecy is completely opposed to any norms of natural
justice where no notice has been provided to the author of the
content. Here it will be necessary to point out that this Hon’ble Court
has recognized in a several judgments that the right to speech and
expression includes the right to read and receive information. The
absolute secrecy with which such blocking orders are made, without
any public notice and in the absence of any reasons affects what
information citizens are permitted to access and offends the right to
freedom of speech and expression as enshrined under Article
19(1)(a). In S.P Gupta v President of India and Ors[1982] AIR (SC)
149 it was held that “The concept of an open Government is the
direct emanation from the right to know which seems to be implicit in
the right of free speech and expression ….disclosure of information
in regard to the functioning of government must be the rule and
secrecy an exception justified only where the strictest requirement of
public interest so demands”. Information related to constitutional
freedoms should be accessible without the need to make formal
application for disclosure, especially information about the
functioning and decision making of public bodies. An RTI application
can partly circumvent rule 16.
40. That it is in this respect, submitted that the Blocking Rules, fall
outside the scope of the reasonable restrictions under Article 19(2)
as they do not contain any safeguards in the blocking of websites.
Besides the absence of any such safeguards, the Blocking Rules,
2009 do not contain any requirements for the Central Government to
provide the grounds of opinion as to what offences are committed in
respect of the Websites for which blocking orders are issued.In this
context it is useful to refer to Para 43, General Comment No. 34 on
the ICCPR by the Human Rights Committee at its 102nd session at
Geneva, 11-29 July 2011, CCPR/C/GC/34
“Any restrictions on the operation of websites, blogs or any other
internet-based, electronic or other such information dissemination
system, including systems to support such communication, such as
internet service providers or search engines, are only permissible to
the extent that they are compatible with paragraph 3. Permissible
restrictions generally should be content-specific; generic bans on the
operation of certain sites and systems are not compatible with
paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site
or an information dissemination system from”. (para 43)
It will also be pertinent to note the provision of Article 19 of the
ICCPR which states that:
ICCPR, Article 19“1. Everyone shall have the right to hold opinions withoutinterference.2. Everyone shall have the right to freedom of expression; this rightshall include freedom to seek, receive and impart information andideas of all kinds, regardless of frontiers, either orally, in writing or inprint, in the form of art, or through any other media of his choice.3. The exercise of the rights provided for in paragraph 2 of thisarticle carries with it special duties and responsibilities. It maytherefore be subject to certain restrictions, but these shall only besuch as are provided by law and are necessary:(a) For respect of the rights or reputations of others;(b) For the protection of national security or of public order (orderpublic), or of public health or morals.
41. It is also submitted that the abovementioned blocking powers
for websites under the impugned provision of the IT Act and Rules
disclose significant discrepancy when compared to the process for
banning books. The book banning provision is contained under the
power to confiscate a publication under Section 95 of the Code of
Criminal Procedure, 1973. Section 95 may be exercised when, (a)
the publication of which is punishable under section 124A or section
153A or section 153B or section 292 or section 293 or section 295A
of the Indian Penal Code (45 of 1860); and (b) by an order of the
State Government may, by notification, state the grounds of its
opinion for the confiscation. Section 96 of the Code of Criminal
Procedure, 1973 further provides a statutory right of Appeal to the
State High Court impugning the Order of Confiscation. Such an
appeal can be made not only by the author but by any person in
recognition of the fundamental right of speech and expression which
includes the right to read and receive information.
Therefore, it is submitted that the Blocking Rules, 2009 not only fail
to incorporate safeguards to safeguard rights under Article 19(1)(a)
but also fail to satisfy the constitutional touchstones of equality under
Article 14 by discriminating against content which hosted on the
Internet.
42. That due to the near total secrecy surrounding the process as
well as the eventual orders under the Blocking Rules, 2009, the
Petitioner has been able to refer to only two documents in this
Petition which highlight the grave dangers posed by them.
43. That the first document is a RTI response dated 10thJune,
2011 from the Ministry of Communication & Information Technology
to the Center for Internet and Society, Bangalore on the
implementation of the Blocking Rules. According to the RTI
Response:
a. The Department of Information and Technology, Government
of India, fails to specify how the person or the intermediary
hosting the website is determined to whom the notice under
Rule 8(1) is sent and then a reply is sought.
b. It further fails to provide a copy of any such notices which
have been issued by it, and the factum and nature of hearing
has been afforded by it before such a blocking order has been
issued by it.
c. There is further no clear response as to whether any of the
blocking directions which have been issued have been
revoked under Rule 14 by subsequent examination of the
review committee.
d. The response only provides the minutes of meeting of the
Committee for Examination of Requests constituted under
Rule 7 for one block order and fails to provide details for the
others.
e. No further information as to the constitution of the review
committee under Rule 14 or any meetings made by it have
been made available till date.
A copy of the RTI response dated 10thJune, 2011 is annexed
herein and is marked as Annexure – P/6(pages ).
44. That the second document which is relevant to the Blocking
Rules, 2009 is a news release by the Press Information Bureau
dated 20th August, 2012 released by the Ministry of Communications
and Information Technology which noted that the Ministry of Home
Affairs issued orders under Section 69A of the IT Act, 2000, directing
intermediaries, including international social networking sites, to
block 76 web pages on 18.08.2012, 80 web pages on 19.08.2012,
89 web pages on 20.08.2012. All these four Orders were
subsequently made publicly available by the Economic Times
through its article dated 24th August, 2012 titled as, “After paralysis,
UPA-II develops Twitter block; blocks handles of journalists, right-
wing groups”.
45. The three Orders referred to above reveal that:
a. The actual orders do not contain the reasons for blocking of
the websites or the grounds of opinion identifying the content
and the illegality as per the opinion of the blocking authority.
b. They merely listed the URL’s (web addresses) in a numbered
list and did not even mention any collective reason for issuing
the blocking orders.
c. The Orders also failed to mention any provision of the
Blocking Rules, 2009 under which they were issued. Hence,
there is ambiguity as to whether they are issued under Rule 8
as a normal request for blocking or under Rule 9 as a blocking
in cases of emergency.
d. The Orders prominently mentioned that the URL’s (web site
addresses) should not be mentioned in the compliance letter
confirming the secretive process under which such blocking
orders are made.
e. After the issuance of the Block Orders, it came to be known
that they contained directions to block the twitter
handles/accounts, of two prominent journalists, Shiv Aroor of
the Headlines Today television channel and Kanchan Gupta,
formerly of The Pioneer. In these blocking orders the complete
twitter handles (accounts) themselves were blocked as
opposed to individual tweets (messages). This is similar to an
analogy where rather than confiscating an offending book
under an order under Sec. 95 of the CrPC, the author is
prevented from any future writing by confiscating the means to
write thereby constituting a serious violation of the author’s
fundamental right of free speech and expression.
A copy of the Press Information Bureau Release dated 20.08.2012
as well as the Orders dated 18.08.2012, 19.08.2012 and 20.08.2012
are collectively annexed herein and are marked as Annexure – P/7
COLLY (Pages ).
46. That the Petitioners submit that an empirical study published
on 9th August, 2012 by the OpenNet Initiative [a collaborative
partnership of three institutions: the Citizen Lab at the Munk School
of Global Affairs, University of Toronto; the Berkman Center for
Internet & Society at Harvard University; and the SecDev Group
(Ottawa)] found glaring flaws with the implementation of the Blocking
Rules, 2009 which result in a violation of the fundamental rights
guaranteed under Articles 14, 19 and 21. The OpenNet Initiative
study inter alia revealed that:
a. When users attempt to access a blocked Website on any of
the tested ISPs, they receive a “server not found” error page.
This error page — also received in the instance of a genuine
server error — gives users the impression that the Web sites
are inaccessible as a result of routine network errors, rather
than an order issued under the Blocking Rules, 2009
b. Technical analysis revealed evidence of collateral filtering on
two ISPs: Bharti Airtel and MTNL. Collateral filtering is a result
of IP-based blocking and refers to Web site that are
unintentionally filtered as a result of sharing the same IP
address as a Web site that has been intentionally blocked. For
example, testing during 2006 – 2007 found that a site about
American-Israeli rabbi Meir Kahane (http://kahane.org) was
blocked because it shares the same IP address as the Hindu
Unity Web site (http://hinduunity.com, http://hinduunity.org);
testing in 2009 – 2010 confirmed that the block was still in
place. Similarly, during testing in 2008 – 2009, a Web site for
travel agents (http://www.positivespace.com) and a system
administrator resource Web site (http://gwsystems.co.il) were
found blocked as a result of sharing that same IP address with
the Hindu Unity Web site.
A copy of OpenNet Initiative empirical study published on 9thAugust,
2012 is annexed herein and is marked as Annexure – P/8(Pages
).
47. It is therefore evident that not only are the Blocking Rules,
2009 against the fundamental rights enshrined under Articles 14, 19
and 21 but are also inherently secret, and thus fail the constitutional
touchstones of equality under the law, free speech and natural
justice.
INFORMATION TECHNOLOGY (INTERMEDIARIES GUIDELINES) RULES,
2011
48. Section 79 provides for exemption from liability of
Intermediary. Also the definition of “Intermediary”, as per clause (w)
of sub-section (1) of Section 2 of the IT Act was amended. The
definition now reads as follows:
(w) “intermediary”, with respect to any particularelectronic records, means any person who on behalf ofanother person receives, stores or transmits that recordor provides any service with respect to that record andincludes telecom service providers, network serviceproviders, internet service providers, web-hostingservice providers, search engines, online payment sites,online-auction sites, online-market places and cybercafes;
49. In the present digital age, blogs and websites are a
substantial medium for citizens and civil society to express their
views, share opinions and engage in discussions. Blogs and
websites have a great role to play in the expression of individual
opinion as well as the formation of public opinion. The internet
specifically serves as a medium to report news and events from
places including from places not reported by print media, which for
reasons of space constraints as also artificially constructed limits
selectively privileges news about and from certain types of regions
and issues. In a way, the internet has democratised the free flow of
information including from places where dictatorial and authoritarian
regimes which closely monitor sharing of news and also in fact
violently suppress free speech. The recent upsurge of peaceful
agitations in the Middle East demanding greater democracy and
upheavals against dictatorial regimes as for example in recent
events in Tunisia and Egypt illustrate the way the electronic
message gateway has influenced free speech and expression
around the world. This apart, the digital medium has been of
immense impact during times of natural disasters such as the
earthquake and tsunami which struck Japan, which enabled quick
warning to people as also in the mobilization of assistance and help
rendering immediate assistance possible. Hence, over and above
the exercise of individual speech, the Internet through individual user
generated content also serves the function of a modern press.
50. That it is respectfully submitted that Intermediaries play a vital
role in dissemination of such information by providing tools and
platforms that allow users to access the Internet, host content, share
files and transact business. Most blogs and websites are on the
backbone of Intermediaries which provide unmatched cost benefits.
These also include social networking websites where Indian citizens
regularly express their opinions. In this respect it is humbly
submitted that the rankings of top 25 websites in India as compiled
by Alexa, a company which is considered an authority on website
traffic, reveals a majority of the websites are Internet Intermediaries.
Alexa rankings have been cited widely in legal journals and
decisions and a copy of the Alexa top 25 websites in India as on
15th January 2013 (dynamic changing Alexa rankings accessible at
http://www.alexa.com/topsites/countries/IN) is attached herein and is
marked as ANNEXURE – P/9(Pages ).
A copy of the Quantcast top websites accessed in India also reveals
that most of the top websites are Intermediaries providing the
functionality of content hosting and publishing for their users. A copy
of the Quantcast top websites (dynamic changing Quantcast
rankings accessible at http://www.quantcast.com/top-sites/IN)
accessed in India as on 1.15.2013 is attached herein and is marked
as ANNEXURE – P/10(Pages )
51. That in addition the promotion of Internet based commerce is
one of the fundamental purposes of the IT Act, 2000. Internet
Intermediaries form an essential component of Internet Commerce
generating new age entrepreneurs and business as well as
generating employment. A report on Internet Intermediaries by the
Organization of Economic Cooperation and Development (OECD)
dated April, 2010, concluded that as per official records a total of
1.4% of the GDP of the United States was generated by Internet
Intermediaries. Though similar figures are unavailable for Internet
Intermediaries in India it can be reasonably expected that electronic
commerce in India is composed of a sizeable extent of revenue,
business and trade by Internet Intermediaries. A copy of the OECD
study on Internet Intermediaries dated April, 2010 is attached herein
and is marked as ANNEXURE – P/11(Pages ).
52. That on 7th February, 2011, Department of Information
Technology, Ministry of Communications & Information Technology
released the Information Technology (Intermediaries guidelines)
Draft Rules, 2011 (hereinafter the “Draft Rules”) for a public
consultation inviting views and comments till 28th February, 2011.
The consultation was carried out in a secretive manner where the
comments received on the Draft Rules were not made public, neither
were reasons provided for the acceptance or rejection of the
comments.
A copy of the (Intermediaries Guidelines) Draft Rules, 2011 is
attached herein and is marked as ANNEXURE – P/12.
53. That between 7th February and 28th February, 2011 various
responses were sent by members of civil society, individuals and
industry associations to Respondent No. 2 which object to the
(Intermediaries Guidelines) Draft Rules, 2011 inter alia on grounds
that they violate the constitutional right to free speech and
expression. These comments were not posted online by Respondent
No.2 or made accessible to the public despite a purported public
consultation. The comments received were further not discussed
and reasons are not assigned for their acceptance or rejection
either. The Petitioner has made a best effort to compile comments to
the (Intermediaries guidelines) Draft Rules, 2011 which are attached
herein and are marked as ANNEXURE – P/13(Colly)
(Pages ).
54. That the Central Government notified the Information
Technology (Intermediaries guidelines) Rules, 2011, on 11th April
2011, prescribing guidelines for intermediaries, in exercise of the
purported powers conferred by Clause (zg) of Sub- section (2) of
Section 87 read with Sub-section (2) of Section 79 of the IT Act. The
Information Technology (Intermediaries Guidelines) Rules, 2011
retained the character and content of (Intermediaries guidelines)
Draft Rules, 2011 which had been previously been pointed out as
placing unreasonable restrictions on the exercise of the
constitutional right to speech and expression in the absence of
procedural safeguards.
A copy of the Information Technology (Intermediaries Guidelines)
Rules, 2011 is attached herein and is marked as ANNEXURE –
P/14(Pages ).
55. That due to mass public outcry and media reports, a purported
clarification dated 11th May, 2011 titled as the, “Exemption from
Liability for Hosting Third Party Information: Diligence to be
Observed under Intermediary Guidelines Rules” was issued by
Respondent No. 1. The clarification which was in the form of a press
release sought to clarify the scope of the Intermediaries Rules, 2011.
A copy of the “Exemption from Liability for Hosting Third Party
Information: Diligence to be Observed under Intermediary Guidelines
Rules” issued by Respondent No. 1 on 11th May, 2011 is attached
herein and is marked as ANNEXURE – P/15(Pages ).
56. That the Intermediary Rules, 2011 under Rule 3 contemplate
due diligence that has to be observed by an intermediary.
a. Sub-rule (1) of rule 3 mandates Intermediaries to publish rules
and regulations, privacy policy and user agreement for access
or usage of the Intermediary's computer resource.
b. Sub-rule (2) of rule 3 mandates the Intermediary to inform
users the kind of information that cannot be hosted, uploaded,
modified, published, transmitted, updated or shared.
c. Sub-rule (3) of rule 3 mandates that the Intermediary shall not
knowingly host or publish any information or shall not initiate
the transmission, select the receiver of transmission, and
select or modify the information contained in the transmission
as specified in sub-rule (2).
d. Sub-rule (4) of rule 3 requires the Intermediary to disable
information that is in contravention of sub-rule (2) within 36
hours, upon obtaining knowledge by itself or on being brought
to actual knowledge by an affected person.
e. Sub-rule (5) of rule 3 mandates the Intermediary to inform
users that in case of non-compliance with rules and
regulations, user agreement and privacy policy for access or
usage of intermediary computer resource, the Intermediary
has the right to immediately terminate the access or usage
rights of the users to the computer resource of Intermediary
and remove non-compliant information.
f. Sub-rule (7) of rule 3 mandates the intermediary to provide
information to Government agencies on a request in writing.
Rule 3 of the Intermediary Rules reads as follows:
“ 3. Due diligence to be observed by intermediary — Theintermediary shall observe following due diligence whiledischarging his duties, namely: —
(1) The intermediary shall publish the rules and regulations,privacy policy and user agreement for access or usage of theintermediary's computer resource by any person.
(2) Such rules and regulations, terms and conditions or useragreement shall inform the users of computer resource not tohost, display, upload, modify, publish, transmit, update orshare any information that —
(a) belongs to another person and to which the user does nothave any right to;
(b) is grossly harmful, harassing, blasphemous, defamatory,obscene, pornographic, paedophilic, libellous, invasive ofanother's privacy, hateful, or racially, ethnically objectionable,disparaging, relating or encouraging money laundering orgambling, or otherwise unlawful in any manner whatever;
(c) harm minors in any way;
(d) infringes any patent, trademark, copyright or otherproprietary rights;
(e) violates any law for the time being in force;
(f) deceives or misleads the addressee about the origin ofsuch messages or communicates any information which isgrossly offensive or menacing in nature;
(g) impersonate another person;
(h) contains software viruses or any other computer code, filesor programs designed to interrupt, destroy or limit thefunctionality of any computer resource;
(i) threatens the unity, integrity, defence, security orsovereignty of India, friendly relations with foreign states, orpublic order or causes incitement to the commission of anycognisable offence or prevents investigation of any offence oris insulting any other nation.
(3) The intermediary shall not knowingly host or publish anyinformation or shall not initiate the transmission, select thereceiver of transmission, and select or modify the informationcontained in the transmission as specified in sub-rule (2):
provided that the following actions by an intermediary shall notamount to hosting, publishing, editing or storing of any suchinformation as specified in sub-rule: (2) —
(a) temporary or transient or intermediate storage ofinformation automatically within the computer resource asan intrinsic feature of such computer resource, involving noexercise of any human editorial control, for onwardtransmission or communication to another computerresource;
(b) removal of access to any information, data orcommunication link by an intermediary after suchinformation, data or communication link comes to theactual knowledge of a person authorised by theintermediary pursuant to any order or direction as per theprovisions of the Act;
(4) The intermediary, on whose computer system theinformation is stored or hosted or published, upon obtainingknowledge by itself or been brought to actual knowledge by anaffected person in writing or through email signed withelectronic signature about any such information as mentionedin sub-rule (2) above, shall act within thirty six hours andwhere applicable, work with user or owner of such informationto disable such information that is in contravention of sub-rule(2). Further the intermediary shall preserve such informationand associated records for at least ninety days forinvestigation purposes,
(5) The Intermediary shall inform its users that in case of non-compliance with rules and regulations, user agreement andprivacy policy for access or usage of intermediary computerresource, the Intermediary has the right to immediatelyterminate the access or usage lights of the users to thecomputer resource of Intermediary and remove noncompliantinformation..
(6) The intermediary shall strictly follow the provisions of theAct or any other laws for the time being in force.
(7) When required by lawful order, the intermediary shallprovide information or any such assistance to GovernmentAgencies who are lawfully authorised for investigative,protective, cyber security activity. The information or any suchassistance shall be provided for the purpose of verification ofidentity, or for prevention, detection, investigation,prosecution, cyber security incidents and punishment ofoffences under any law for the time being in force, on arequest in writing stating clearly the purpose of seeking suchinformation or any such assistance.
(8) The intermediary shall take all reasonable measures tosecure its computer resource and information containedtherein following the reasonable security practices andprocedures as prescribed in the Information Technology(Reasonable security practices and procedures and sensitivepersonal Information) Rules, 2011.
(9) The intermediary shall report cyber security incidents andalso share cyber security incidents related information with theIndian Computer Emergency Response Team.
(10) The intermediary shall not knowingly deploy or install ormodify the technical configuration of computer resource orbecome party to any such act which may change or has thepotential to change the normal course of operation of thecomputer resource than what it is supposed to "performthereby circumventing any law for the time being in force:
Provided that the intermediary may develop, produce,distribute or employ technological means for the sole purposeof performing the acts of securing the computer resource andinformation contained therein.
(11) The intermediary shall publish on its website the name ofthe Grievance Officer and his contact details as well asmechanism by which users or any victim who suffers as aresult of access or usage of computer resource by any personin violation of rule 3 can notify their complaints against suchaccess or usage of computer resource of the intermediary orother matters pertaining to the computer resources madeavailable by it. The Grievance Officer shall redress thecomplaints within one month from the date of receipt ofcomplaint.
57. That the Intermediaries Rules, 2011 by mandating and
requiring Intermediaries to place restrictions on the content posted
on their websites results in placing unreasonable restrictions on the
freedom of speech and expression of the citizens of India and goes
beyond the limits set by Article 19(2). Towards this, Sub-rule (2) of
Rule 3 contains various kinds and classes of Information for which
the Intermediary has to inform users, as a matter of ‘due diligence’
the type of information that cannot be hosted, uploaded, modified,
published, transmitted, updated or shared. It is submitted that such
information is outside the scope of permissible restrictions under
Article 19(2).
Furthermore, it is submitted that the grounds for such kinds and
classes of Information is making very general and sweeping and
worded in broad and vague terms without reference to any existing
provision of law to assist or explain how the specific acts can be
interpreted or applied. In some instances the grounds do not find
mention under any legislative enactment and go beyond the breadth
of Section 79 of the IT Act, ostensibly creating new grounds and
substantive offenses or/and contraventions.
58. That indeed the rules mandate that the intermediary must
restrict a user’s expression or face the force of law for failure to
observe ‘due diligence’- thus creating additional burden from any law
under force. E.g. private person can only sue for defamation but
intermediary would be made liable even if the remark was merely
“disparaging”.
59. It is humbly submitted that the Intermediaries Rules, 2011
while providing for an affected private party to complain about a
posted content to an Internet Intermediary does not afford a right of
hearing to the user who posted the content. Even assuming, without
admitting, that a hearing is granted by the Intermediary to the User
who posted the content the timelines for compliance render the
hearing anything but perfunctory and tokenistic. Sub-rule (4) of rule
3 which requires the Intermediary to disable information that is in
contravention of sub-rule (2) within 36 hours, upon obtaining
knowledge by itself or on being brought to actual knowledge by an
affected person may in some instances not provide the user who
posted the content 24 hours notice to reply to the complaint of an
affected Party.
60. In Excel Wear vs Union Of India &Ors, AIR 1979 SC 25 this
Hon’ble Court held that Section 25(O) and 25R of the Industrial
Disputes Act 1947 were constitutionally bad and invalid as the order
passed by the authority had no guidelines to follow, is not subject to
scrutiny by any higher or tribunal either in appeal or revision. There
was no procedure for review and the authority was not obligated to
give reasons. Applying these principles to the present case it can be
seen that the procedures under the Intermediary Rules there are no
proper legal recourses afforded to persons whose content has been
wrongfully taken down. Also there is no procedure to prefer an
appeal against the Executive Order
61. Further the Intermediaries Rules, 2011 also interfere with the
neutral, passive nature of Internet Intermediaries inasmuch as they
ambiguously state under sub-rule (4) of Rule 3 that the Intermediary
shall also disable access to the Information on its own knowledge.
This requirement of action on discovery is over and above a
complaint which may be filed by an affected Party and it goes
beyond the principle of exemption from intermediary liability as
contained under Section 79 of the IT Act, which is the parent
provision. Exemption from liability under Section 79 of the IT Act is
granted to Intermediaries only on the basis of their passivity as they
are not seen to be the authors of the content. Hence, by inserting a
provision for policing information and content, the Intermediaries
Rules, 2011 go beyond the ambit of the IT Act, 2000. It is also
relevant to note that in case an Intermediary fails to discover or have
knowledge by itself of the information then it may be made liable,
which is again against the language and intent of Section 79 of the
IT Act.
62. The Petitioner submits that the Intermediaries Rules, 2011
also vest vast censorship powers with Private Intermediaries in the
absence of necessary safeguards. These Private Intermediaries
serve as essential conduits for the expression of free speech and
expression. It is submitted that censorship of speech and expression
is permissible under law flowing from the mandate of Article 19(2).
However, as held by the Hon'ble Supreme Court in a catena of
cases the power of censorship should be exercised under law which
contains well defined grounds and with adequate safeguards. The
Petitioner submits that the Intermediaries Rules, 2011 are not only
vaguely drafted but also fail to incorporate such procedural
safeguards thereby failing to satisfy the constitutional touchstones of
reasonable restrictions on the right to speech and expression.
63. Comparing the provisions in analogous laws of other country
jurisdictions, the European Union’s Directive 2000/31 EC directive
puts no liability on the intermediary as they act merely as a conduit
and furthermore no liability is put on the intermediary to monitor the
content:
“ARTICLE 12
"Mere conduit"
1. Where an information society service is provided thatconsists of the transmission in a communicationnetwork of information provided by a recipient of theservice, or the provision of access to a communicationnetwork, Member States shall ensure that the serviceprovider is not liable for the information transmitted, oncondition that the provider:
(a) does not initiate the transmission;
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information containedin the transmission.
2. The acts of transmission and of provision of accessreferred to in paragraph 1 include the automatic,intermediate and transient storage of the informationtransmitted in so far as this takes place for the solepurpose of carrying out the transmission in thecommunication network, and provided that theinformation is not stored for any period longer than isreasonably necessary for the transmission.
3. This Article shall not affect the possibility for a courtor administrative authority, in accordance with MemberStates' legal systems, of requiring the service providerto terminate or prevent an infringement.”
ARTICLE 15
No general obligation to monitor
1. Member States shall not impose a general obligation onproviders, when providing the services covered by Articles 12,13 and 14, to monitor the information which they transmit orstore, nor a general obligation actively to seek facts orcircumstances indicating illegal activity.
2. Member States may establish obligations for informationsociety service providers promptly to inform the competentpublic authorities of alleged illegal activities undertaken orinformation provided by recipients of their service orobligations to communicate to the competent authorities, attheir request, information enabling the identification ofrecipients of their service with whom they have storageagreements.”
64. It is submitted that the Intermediaries Rules, 2011 contain
apparent contradictions and inconsistencies which create ambiguity
and may lead to overboard application:
a. Sub-rule (4) of Rule 3 states that the Intermediary shall act
within thirty six hours on receiving a complaint from an
Effected Party; in contrast, sub-rule (11) of Rule 3 states that
the Grievance Officer of the Intermediary will redress the
complaints of the Affected Party within a period of one month.
Hence, the time limits for initiating and completing action
remain unclear, inconsistent and mutually contradictory.
b. There are also ambiguities in sub-rule (11) of Rule 3 wherein it
states that the Intermediary shall publish a mechanism on its
website by which an affected party may notify the
Intermediary. Such a mechanism has not been prescribed or
adequately explained by the Intermediaries Rules, 2011.
65. That the Intermediaries Rules, 2011, under Rule 3 (7) also
mandate the Intermediaries to provide information to Government
agencies. Such sharing of information, albeit on a written request
adversely affects the privacy of citizens. Rule 3 (7) does not make
any reference to the specific Rules made under the Telegraph Act or
under the Information Technology Act, 2000, for interception of
communications/information and creates an additional power to
intercept communications and breach individual privacy in the
absence of any safeguards. It is submitted that such a power
permitting invasion of privacy exists independently of any procedural
safeguards and is contrary to Articles 14, 19 and 21.
66. Rule 3(7) also refers to “cyber security incident”, as a ground
for providing information to the Government. Rule 2(d) defines the
said term as follows:
“Cyber security incident” means any real or suspectedadverse event in relation to cyber security that violates anexplicitly or implicitly applicable security policy resulting inunauthorized access, denial of service or disruption,unauthorised use of a computer resource for processing orstorage of information or changes to data, informationwithout authorisation;”
The said definition of “cyber security incident” is vague and all
encompassing and is liable to misuse and thus has an adverse
effect on privacy of citizens.
67. The Petitioner submits that the only empirical study conducted
on the effect of the Intermediaries Rules, 2011 has been by the
Center for Internet and Society, Bangalore which has concluded that
the takedown mechanism prescribed by the Intermediary Rules,
2011 has a chilling effect on free expression. Of the 7 intermediaries
to which takedown notices were issued and which were examined as
part of the study, 6 intermediaries removed and disabled the
targeted information or communication links despite the legitimacy of
the expressions contained therein and also despite apparent flaws in
the takedown notices that were sent to them. A copy of the Report,
“Intermediary Liability in India: Chilling Effects on Free Expression
on the Internet, 2011” is annexed herein and is marked as
ANNEXURE – P/15.
68. The analogous takedown mechanisms which already exist
under law recognize that components of natural justice safeguards
should be present even when intermediaries are made aware of
illegal activities. This is principally contained under Rule 74 of the
Copyright Rules, 2012 which state that though an intermediary is
obligated to take down content however the take down complaint
has to be confirmed with court order within 21 days of the complaint.
69. It is further submitted that since the Intermediary Rules, 2011
have been made there has been a considerable rise in violations of
the freedom of speech and expression guaranteed under Article
19(1)(a). This is visible in two international studies which specifically
cite the Intermediary Rules, 2011 as causes for the decline in the
freedom of speech and expression as present in the country. These
include the ‘2012 Annual Report of Freedom House on India’ and
the ‘2011 Report of Reporters without Borders’, which are both
annexed herein and marked as Annexure – P/16.
70. The exemption from liability based on inherent passivity of the
intermediary under Section 79, IT Act, 2000, is based on the EU
Directive 2000/31 (E-Commerce Directive). Article 12 of the said
Directive labels intermediaries as ‘mere conduits’ and exempts them
from liability on the condition of their passivity. Article 15 states that
intermediaries have no general obligation to monitor.
71. In Sabam v Scarlet C70/10 the Court of Justice of the
European Union ruled that a proposed measure ordering an Internet
service provider to install a system of filtering of all electronic
communications and blocking certain content in order to protect
intellectual property rights was in breach of European law.
72. Under sub-rule (4) of rule 3 of the Intermediary Rules,
intermediaries are obligated to take action when they discover any
offensive material. This is an obligation to police and monitor
information making, and thus makes them the de facto censor,
thereby hampering the fundamental right of freedom and expression
guaranteed to all citizens.
73. That it is pertinent to note that the intermediary cannot be
deemed to be capable of determining the illegality of the material.
This is because legal knowledge is needed to interpret statutes and
rules there under, whose burden cannot be cast on individual
intermediaries; therefore intermediaries cannot be supposed to be
qualified or equipped to take down information by their own
discovery, especially when such information contains exercises of
public expression by the citizenry.
74. The rules thus suffer from illegality and are patently unfair as
they do not offer any guidelines to ensure legitimacy of complaint
(e.g. Blocking rules complaint form) and do not require party lodging
complaint to prove content is illegal. Since the matter has not been
adjudicated, the illegality of the content cannot be determined.
Furthermore, it is not mandatory for the intermediary to inform users
regarding the removal of his information. The intermediary is simply
forced to act within 36 hours. It is easier for the intermediary to
takedown information once a complaint is received and thereby
avoid liability without even prima facie examining the content and
satisfying themselves about the validity of the complaint. Once a
complaint is received they can no longer claim to be an innocent
disseminator. In effect the provisions are so one sided that on the
part of the intermediaries, it would be more practical to pull out the
content, even if the intermediary may personally feel that such an
action is essentially arbitrary, unreasonable and violative of the
user’s fundamental right to free speech and expression. Such a legal
regime will end up promoting self censorship on the part of the
intermediaries as a more practical way of avoiding lengthy legal
proceedings; in effect what this means is that it is easy for persons
to make patently motivated and partisan complaints about content
posted in intermediary’s site with a reasonable certainty that the
service provider or intermediary will tend to block or remove the
content as an easier alternative to avoiding controversy, prosecution
and time and resource consuming legal proceedings.
75. It is in this connection that we notice that the intermediary is
given full immunity if it acts on complaints. In fact, not acting would
make them liable. This complex power/burden on the intermediary
has a chilling effect on free speech. Thus, the Rules are bad for
incompleteness as there are no guidelines set for (1) counter claims
(2) no procedure to follow when an intermediary disagrees with a
request. It gives one person the unbridled power to restrict the
fundamental freedom of another. Also, the effect of the rule will
effectively prevent disputes from going to court.
76. The Intermediary Rules also leads to arbitrary private
censorship. This much is made clearing an academic article which
examined the subject:
“In practice it is the interest of a hosting provider who hasbeen notified of the presence of illegal content to remove thiscontent from its server, whether the content is ultimately illegalor not. This results in private censorship. ”
-“What Can Be Done Against Cyber Hate Freedom OfSpeech Versus Hate Speech In The Council OfEurope”,Isablelle Rorive, Cardozo Journal ofInternational and Comparative Law, Volume 17 No.3:
77. It is useful in this context to take note of the `Declaration of
the Committee of Ministers on Human Rights and the Rule of Law in
the Information Society’ [CM(2005)56 final 13 May 2005] of the
Council of Europe which explained that:
“Freedom of expression, information and communicationshould be respected in a digital as well as in a non-digitalenvironment, and should not be subject to restrictions otherthan those provided for in Article 10 of the ECHR, simplybecause communication is carried in digital form. Memberstates should maintain and enhance legal and practicalmeasures to prevent state and private censorship”.
78. The Petitioner also seeks to highlight Press Reports by which
the Hon’ble Minister for Communications and Information
Technology in a private meeting requested the executives of various
internet intermediaries to pre-screen content. It is submitted that
such an extra-legal measure which plainly conflicts with the dicta of
the Supreme Court prohibiting pre-censorship is impermissible.
Moreover prescribing such a function to a private intermediary vests
it with a judicial function to determine the illegality of content in the
absence of any objective standards. Though subsequent statements
have been made by Respondent No.1 stating that there are no plans
to mandate the pre-screening of content, the announcement and
such extra-judicial directives given in a closed door meeting have
contributed to the chilling effect on free speech and expression
online. It is submitted that these apprehensions are not illusory or
imaginary. The statements made off-and-on record by the Union
Minister concerned makes it apparent that pre-censorship is what is
expected of intermediaries and service providers; the number of
prosecutions launched under the impugned provisions across the
country indicate to the intermediary and service provider the
implication of not responding to government’s prompting; in fact they
are testimony to the intolerance on the part of ruling dispensations to
any form of critical examination or comment of their activities. Copies
of the various news reports as to Pre-screening are collectively
annexed herein and are marked as ANNEXURE – P/17(Pages ).
79. That on 18.03.2013 the Department of Electronics and
Information Technology issued a Clarification on the Information
Technology (Intermediary Guidelines) Rules, 2011 under which it
stated that the words “…..shall act within thirty-six hours…” as
mentioned in sub-rule (4) of Rule 3 have an intended meaning that
the intermediary shall respond or acknowledge to the complainant
within thirty six hours of receiving the complaint/grievances about
any such information as mentioned in sub-rule (2) of Rule 3 and
initiate appropriate action as per law. Further, the Grievance Officer
of the intermediary shall redress such complaints promptly but in any
case within one month from the date of receipt of complaint in
accordance with sub-rule (11) of Rule 3.
It is important to note here that the clarification dated 18.03.2013
was published on the website of the Department of Electronics and
Information Technology was not through a gazette notification and
does not have the force of law. This is because Section 79 allows for
delegated legislation to be made by the Respondent through the
making of rules which is published in the official gazette. Even
otherwise the gazette notification which though acknowledges the
ambiguity present in the Information Technology (Intermediary
Guidelines) Rules, 2011 does not, in effect, amend them.
80. The Parliamentary Committee on Delegated Legislation in its
31st Report dated 21.03.2013 examined the vires of, (i) The
Information Technology (Reasonable security practices and
procedures and sensitive personal data or information) Rules, 2011;
(ii) The Information Technology (Intermediaries Guidelines) Rules,
2011; (iii) The Information Technology (Guidelines for Cyber Cafe)
Rules, 2011; and (iv) The Information Technology (Electronic
Service Delivery) Rules, 2011 stated at several instances how these
rules are ultra vires the principal legislation.
That the Committee on Delegated Legislation observed with respect
to the Information Technology (Intermediaries guidelines) Rules,
2011:
a. Rule 3(2): “The Committee would suggest that in order toremove ambiguity/misgivings in the minds of the people,the definition of those terms used in different laws shouldbe incorporated at one place in the aforesaid rules forconvenience of reference by the intermediaries andgeneral public. In regard to those terms which are notdefined in any other statute, these should be defined andincorporated in the rules to ensure that no new category ofcrimes or offences is created in the process of delegatedlegislation.”
b. Rule 3(4) : “The Committee feels that there is need forclarity on the aforesaid contradictions and if need be, theposition may be clarified in the rules particularly on theprocess for take down of content and there should besafeguards to protect against any abuse during suchprocess”
81. It is respectfully submitted that Section 66A of the Information
Technology Act, 2000, the Information Technology (Procedure and
Safeguards for Blocking for Access of Information by Public) Rules,
2009 and the Information Technology (Intermediaries Guidelines)
Rules, 2011 collectively by promote uncertainty stemming from
ambiguous provisions which allows erroneous applications. Due to
the uncanonised power contained under the impugned provisions,
they create a reasonable apprehension in a speaker that he will be
held liable for speech that should properly be protected under Article
19(1) (a). This is especially problematic as the closer the speech is
to the line between protected and unprotected, the more pronounced
this uncertainty will be. Given the existence of both ambiguity and
error, would-be speakers of statements critical of policy makers and
people in power might well decide that it would be practically
expedient not to speak rather than to risk liability. Speech that is
actually even protected under Article 19(1) (a) will therefore be
discouraged and avoided.
82. That the impugned legal provisions clearly have chilling effect
on free speech as inter alia due to their vague drafting they make
speakers uncertain of a law’s application. This uncertainty may
translate into a variety of risks, any of which may cause a speaker to
remain silent. For example, a speaker may be deterred by:
a. the risk of wrongful criminal conviction and sanction;
b. the litigation costs of defending himself in criminal, civil, or
administrative procedures, regardless of their outcome.
c. the personal and reputational costs of defending against
criminal, civil, or administrative procedures, regardless of their
outcome.
d. the costs of obtaining legal advice prior to speaking;
e. the threat of investigation or surveillance, whether or not it
results in legal proceedings;
Hence, the detrimental effects of the impugned provisions, on the
freedom of expression under Article 19(1) (A), are directly contrary to
the same. Further, such negative effects also by allowing frivolous
prosecution result in a violation of Article 21.
83. The Petitioner also submit that the United Nations Special
Rapporteur on Freedom of Expression Frank LaRue stated in his
widely-cited “Report on the Promotion and Protection of the Right to
Freedom of Opinion and Expression” dated 10th August, 2011 that,
“by vastly expanding the capacity of individuals to enjoy their right tofreedom of opinion and expression, which is an 'enabler' of otherhuman rights, the Internet boosts economic, social and politicaldevelopment, and contributes to the progress of humankind as awhole.”
It was also stated in the above referred report that:
“(a) Any restriction must be provided by law, which mustbe formulated with sufficient precision to enable anindividual to regulate his or her conduct accordingly andmust be made accessible to the public;(b) Any restriction must pursue one of the legitimate
grounds for restriction set out in article 19, paragraph 3,of the International Covenant, namely (i) respect of therights or reputation of others; or (ii) the protection ofnational security or of public order, or of public health ormorals;(c) Any restriction must be proven as necessary andproportionate, or the least restrictive means to achieveone of the specified goals listed above.”
Therefore, given the tremendous reach of the Internet and facilitation
it provides, the detrimental effects resulting from the vague and
ambiguous impugned provisions on the right to free expression, is
clearly contrary to Articles 14, 19 and 21 of the Constitution of India.
A copy of the “Report on the Promotion and Protection of the Right
to Freedom of Opinion and Expression” dated 10thAugust, 2011 is
annexed herein and marked as Annexure – P/18(Pages ).
84. That therefore the constitutionality of the impugned sections
and rules is under challenge on several grounds. The first would be
on the ground of lack of clarity or vagueness of the impugned statute
and rules thereunder and the second on the ground of the need to
define ambiguous terms.
GROUNDS
85. The Petitioners seek to challenge, Section 66A of the
Information Technology Act, 2000, the Information Technology
(Procedure and Safeguards for Blocking for Access of Information by
Public) Rules, 2009 and the Information Technology (Intermediaries
Guidelines) Rules, 2011 on the following amongst other grounds,
which are taken in the alternative and without prejudice to one
another:
SECTION 66A
A. FOR THAT as a criminal, cognizable offence carrying a three year
prison term Section 66A of the Information Technology Act, 2000 is
contrary to constitutional protections under Articles 14, 19 and 21 of the
Constitution of India.
B. FOR THAT Clause (a) of Section 66A is itself is contrary to Article 19
(1) of the Constitution of India, it’s constituents do not fall within the
permissible categories of restriction Art 19(2) and is beyond the
reasonable restrictions imposed under Article 19 (2). The said clause is
very widely worded and penalizes sending information which is `grossly
offensive' and has a `menacing character'. Both words are not defined;
whether a piece of information is offensive or menacing is very
subjective and hence defies a standard. Further in this clause there is
no need to show `intention' as reflected by the words `for the purpose
of' in the other two clauses (b) and (c) of Section 66A. While these sub
clauses require the offender to possess the ‘knowledge’ of crime being
committed, the broad terms used under the impugned Section sweep
any person under its ambit and is therefore open to arbitrary
application. Further, Clause (a) of Section 66A uses expressions such
as ‘grossly offensive’ and menacing’ which are not only impossible to
define but also highly subjective by individual standards.
C. FOR THAT Clause (b) of Section 66A is contrary to Article 14 and 21
of the Constitution of India because without defining the terms which
have been made offences, penalty Section 66A has been introduced,
which is totally impermissible. It is also violation of Article 19(1) of the
Constitution of India and is beyond the reasonable restrictions imposed
under 19 (2). The said clause has three ingredients :
i) knowledge that the information is false
ii) intent to cause annoyance, inconvenience etc
iii) persistently sending by a computer resource or communication
device.
As such clause (b) prescribes penalties for offences such as
‘annoyance’, ‘criminal intimidation’, ‘insult’ and promoting ‘hatred’
or ‘ill- will’ between groups. Thus, prescribing the same punishment
for ‘annoyance’, as well as ‘criminal intimidation, by bundling of
disparate terms within the same clause is not only against the
requirement that criminal penalties for major and minor offences be
proportionate, it leads to confusion and misuse. Moreover, some of
these offences are already covered under various sections of the
Indian Penal Code, 1860 (IPC). As the threshold requirements
under Section 66A as a whole are lower due to the inclusion of the
terms “insult” and “annoyance” and open to subjective
interpretation, misuse and confusion is widespread.
D. FOR THAT clause (c) of Section 66A Clause (c) of the section is
meant to be an anti-spam provision but does not do justice to the
requirement of either users or industry. It is respectfully stated
that in its present form it is contrary to Article 19(1) of the
Constitution of India, does not fall within permissible categories of
restriction and is beyond the reasonable restrictions imposed
under 19 (2) as it requires intent to annoy, cause inconvenience,
but does not define the said criminal offences. It is respectfully
stated that annoyance is only one part of a multi-factor test for
nuisance and the punishment is vastly different, for example
under Section 290 of the Indian Penal Code 1860, the
punishment for nuisance if not otherwise specified is a fine of Rs.
200.
E. FOR THAT further, to "deceive or mislead the addressee or
recipient about the origin of such message” implies that if an
email is forwarded after deleting the name of the sender it could
well constitute this offence. In private group emails with
jokes/articles etc which are circulated/ forwarded, in a chain of
friends, often senders do not even know the origin of a particular
mail. In addition as would befit a provision to prevent spam, there
is no requirement that the electronic communication to be
unsolicited, or sent in bulk. It is respectfully stated that a civil
penalty to penalise spam as has been specified under the
Telecom Commercial Communications Customer Preference
Regulations, 2010.
F. FOR THAT the provisions of Section 66A are contrary to Article
14 of the Constitution of India, in most instances penalties for the
same offences are higher in the IT Act as compared to those in
the IPC. Thus, if an offence is committed through an electronic
medium such as the internet, it would attract a higher penalty
than otherwise. For instance, causing threatening someone with
injury to their reputation through email attracts a penalty of three
years imprisonment under the IT Act while the same offence
when committed verbally attracts a penalty of two years
imprisonment under the IPC (Section 503 and 506). This
differentiation between punishments for the same offence
without any reasonable basis for such distinction cannot be
protected, is invidious and is an infringement of Article 14.
G. FOR THAT the internet has been an important democratising
factor in terms of access to speech. That the low threshold for
criminal prosecution concerning persons using the internet to
express themselves as opposed to the same expression made
through newspapers, television and face to face interactions is
unreasonable. It is pertinent to mention that offences under 66A
are cognizable. It is respectfully stated that this leaves an
unfettered discretion regarding arrest to police personnel at the
first instance and makes the Section liable to wanton misuse.
H. FOR THAT the view taken in the United States of America
regarding free speech is expansive, and virtually all attempts to
regulate the Internet have been struck down. Most recently the
Communications Decency Act 1996 which sought to criminalise
the transmission of "obscene or indecent" messages to
recipients under 18 was found to be overly broad, thus violating
the freedom of speech provisions of the First Amendment (Reno
v. American Civil Liberties Union). The Court again ruled that
any undefined limitations on the Internet were unconstitutional in
American Civil Liberties Union v. Ashcroft (2002). Furthermore,
threats and harassing speech sent online are dealt with under
regular hate laws, laws against inciting violence, etc, as opposed
to laws specifically engaged with the internet. It is respectfully
submitted that the principles to strike down such laws in the US
are applicable in Indian context and under Indian laws also.
I. FOR THAT the Union of India has drawn false equivalence
between the terms of Section 66A, IT Act and other statutes.
These equivalent laws in the United Kingdom are the
Communications Act, 2003 (s. 127) and the Malicious
Communications Act 1988 (s.1). It is pertinent to mention that for
both the legislations mentioned above, the penalty is up to 6
months' imprisonment or to a maximum fine of £5000 or both.
On the other hand Section 66A imposes even greater, unduly
excessive, unwarranted and arbitrary penal consequences.
J. FOR THAT a comparison of similar laws demonstrates the
differentia between Section 66A of the IT Act and legislation
alleged to be similar:
Provision inlegislation
Terms referenced inSection 66A
Points of distinction
UnitedKingdomTheCommunication Act, 2003Section 127
Improper use of publicelectroniccommunicationsnetwork(1)A person is guilty ofan offence if he—(a)sends by means of apublic electroniccommunicationsnetwork a message orother matter that isgrossly offensive or ofan indecent, obscene ormenacing character; or(b) causes any suchmessage or matter to beso sent.(2)A person is guilty ofan offence if, for thepurpose of causing
1. The leading case withrespect to Section 127 ofthe BritishCommunication Act, 2003is the case of PaulChambers v. Director ofPublic Prosecutions[2012] EWH2 2157 inwhich the prosecution of a“tweet” came under heavycriticism. In any case theconstitutionality of Section127 was not challengedas the United Kingdomdoes not have a formaland written constitution.2. Due to the widespreadcondemnation causeddue to the case, theDirector of Public
annoyance,inconvenience orneedless anxiety toanother, he—(a)sends by means of apublic electroniccommunicationsnetwork, a messagethat he knows to befalse,(b)causes such amessage to be sent; or(c)persistently makesuse of a publicelectroniccommunicationsnetwork.(3)A person guilty of anoffence under thissection shall be liable,on summary conviction,to imprisonment for aterm not exceeding sixmonths or to a fine notexceeding level 5 on thestandard scale, or toboth.(4)Subsections (1) and(2) do not apply toanything done in thecourse of providing aprogramme service(within the meaning ofthe Broadcasting Act1990 (c. 42)).
Prosecutions firstpublished the, “Interimguidelines on prosecutingcases involvingcommunications sent viasocial media” on 19December 2012. Theseguidelines tremendouslywatered down andprovided prosecutionguidance for theapplication of Section 127to internet content. Theseguidelines expresslyrecognised the chillingeffects of mereprosecutions underSection 127 and notedthat, “There is a highthreshold that must bemet before criminalproceedings are broughtand in many cases aprosecution is unlikely tobe required in the publicinterest.”3. Further, the Director ofPublic Prosecutions hasissued, “Guidelines onprosecuting casesinvolving communicationssent via social media” on20th June, 2013 on similarlines recognising thechilling effect on freespeech calling onprosecutors to exerciseconsiderable caution.
United Statesof AmericaTelecommunications Act,1996Section 502includedprovisions oftheCommunications DecencyAct of 1996
47 U.S.C. 233(a) Prohibited actsgenerallyWhoever—(1) in interstate orforeigncommunications—(A) by means of atelecommunicationsdevice knowingly—(i) makes, creates, orsolicits, and
1. The provisions of theTelecommunications Act,1996 which have beencited have been severelycurtailed by the ruling ofthe United StatesSupreme Court in thecase of Reno v. AmericanCivil Liberties Union (96-511) 521 U.S. 844 (1997).The Respondent, UOI isrelying upon the
(to be codifiedat 47 U.S.C.Section223(a) to (h)
(ii) initiates thetransmission of,any comment, request,suggestion, proposal,image, or othercommunication which isobscene or childpornography, with intentto abuse, threaten, orharass another person;(B) by means of atelecommunicationsdevice knowingly—(i) makes, creates, orsolicits, and(ii) initiates thetransmission of,any comment, request,suggestion, proposal,image, or othercommunication which isobscene or childpornography, knowingthat the recipient of thecommunication is under18 years of age,regardless of whetherthe maker of suchcommunication placedthe call or initiated thecommunication;(2) knowingly permitsany telecommunicationsfacility under his controlto be used for anyactivity prohibited byparagraph (1) with theintent that it be used forsuch activity, shall befined under title 18 orimprisoned not morethan two years, or both.
provisions which havebeen amended in 2003following this decision, thelegislative history of whichis set out below.2. In the above citedcase, the United StatesSupreme Court confirmedan injunction passed bythe a three judge DistrictCourt on 223(a)(1)(B)'sprohibitions insofar asthey relate to "indecent"communications, butexpressly preserves theGovernment's right toinvestigate and prosecutethe obscenity or childpornography activitiesprohibited therein. Afterthis decision, allreferences to "indecenttransmission" provisionand the "patentlyoffensive display" wereamended to “childpornorgraphy”.3. It is also pertinent toexamine that theprovisions under Section223(a)(1)(A) do notmerely criminalise speechwhich is “abusive”,“threatening” or“harassing” butcriminalise it when, thereis communication whichalready is obscene orcontains childpornography. Here, theexistence of childpornography or obscenityis relevant for constitutionan offence as opposed tomere abuse, threats, orharassment.
K. FOR THAT even the ingredients for the offences contained
under Section 66A have been left undefined and hence their
prosecution is on the subjective assessment of the police
authorities as opposed to any objective criteria. Such wide
ranging and unbridled discretion is contrary to Articles 19, 14
and 21.
L. FOR THAT Section 66A does not contain or define one single
offence, but include multiple offences without clear, specific and
objective definition of any of the offences outlined in the
provision itself. By failing to disclose any definition for the
phrases under Sec. 66A, there is a complete absence as to the
ingredients necessary for constituting the offence which leads to
wide charging discretion and arbitrary application leading to a
violation of Articles 14 and 21.
M. FOR THAT several phrases under Sec. 66A are wholly vague,
unclear and undefined and inasmuch go outside the breadth of
the reasonable restrictions which are contained under Article
19(2) which can be placed upon the right to freedom of speech
and expression as contained under Article 19(1)(a). Hence,
Section 66A is contrary to the fundamental right to freedom of
speech and expression.
N. FOR THAT even for phrases contained under Sec. 66A for
which offences and ingredients are contained under other laws
such as the phrase, “criminal intimidation” for which an offence is
contained under Section 503 of the Indian Penal Code, 1860,
there is no reference to Section 503 contained alongwith the
phrase. In such situations, the application of the offence of
“criminal intimidation” under Section 66A of the IT Act, 2000 and
Section 503 of the Indian Penal Code, 1860 will result in
variance in outcome and discriminatory application for speech in
the absence of any reasonable differentia. Hence, such
discriminatory application inasmuch results in a violation of right
to equality as enshrined under Article 14.
O. FOR THAT phrases which exist under Sec. 66A do not contain
any exceptions or safeguards as are provided for similar
offences contained other penal laws and lead to arbitrary and
discriminatory treatment for the same speech based solely on
the medium in which it is made. For instance the offence of
defamation as contained under Section 499 of the Indian Penal
Code, 1860 contains a list of exceptions from the offence, which
do not find mention under Section 66A, which contains phrases
such as “annoyance”, “ill will” and “grossly offensive” leading to
an offence for the same speech. Hence the absence of any
safeguards or exceptions under Section 66A conflicts with
Articles 14, 19 and 21 of the Constitution.
P. FOR THAT Section 66A lacks rational nexus with the purpose
which is sought to be achieved as most offences for which the
phrases which have been used, already exist in a more detailed
and considered manner under other enactments which apply to
speech carried out offline as well as online. Due to its application
it even results in an excessive increase in the eventual
punishment merely because the speech has been made online.
For instance Section 294 IPC which contains the offence for
singing obscene songs, gestures and signs contains a
punishment on conviction for only 3 months, whereas Section
66A of the IT Act, contemplates a punishment for a period of
imprisonment which extends to three years. Hence, the same
speech can lead to offences under Section 66A of the IT Act and
Section 294 of the Indian Penal Code, with completely distinct
terms of imprisonment for the same speech. Hence, Section 66A
is clearly superfluous and contrary to Articles 14, 19 and 21.
Q. FOR THAT Section 66A is attracted solely on online speech and
no such analogous umbrella provisions exist for speech which is
made through printed matter or otherwise carried offline. Hence,
speech which may otherwise be legal offline invites prosecution
merely because the same speech is made online. Such
discriminatory treatment for the same speech is clearly contrary
to Articles 14, 19 and 21.
BLOCKING RULES, 2009
R. FOR THAT for the reasons as set out in this petition, the
Blocking Rules, 2009 are liable to be read in accordance with
constitutional provisions and principles of natural justice or set
aside as void, illegal and unconstitutional as in their present form
they are contrary to Articles 14, 19 and 21 of the Constitution of
India.
S. FOR THAT Rule 8(1) which, states that the Designated Officer
shall make reasonable efforts to identify, “the person or
intermediary who has hosted the information” and issue such
person or intermediary a show cause notice to submit a reply
and clarifications as to why the website should not be blocked.
Here it is pertinent to mention that the person and the
intermediary hosting the information is not the author nor the
owner of the content and hence the author or owner has no
notice or hearing as to the content being blocked. Hence, no
hearing or notice is issued to the author/owner, which results in
a complete violation of natural justice and is contrary to articles
14, 19 and 21 of the constitution.
T. FOR THAT under Rule 5 of the Blocking Rules, 2009, there is no
legal provision for the communication of the Blocking Order to
the Author who is the primary affected party.
U. FOR THAT there is also a complete absence of natural justice
under the Blocking Rules, 2009 due to the absence of
communication of the Blocking Order or even the opportunity of
a post decisional hearing. Hence, the owner and the author of
the content has no opportunity for understanding the reasons for
the censorship of content and the blocking order passed by the
Designated Officer. Additionally, there is also no provision in the
rules to file an appeal against such a blocking order. This is
plainly contrary to Articles 14, 19 and 21 of the Constitution of
India.
V. FOR THAT under the Blocking Rules, 2009, Rule 14 envisages
a Review Committee which is mandated to meet at least once
every two months and record its finding whether the directions
issued under the rules are in accordance with Sec. 69A.
However as per RTI responses cited in the present petition, no
such review committee, its date of meetings or even its
deliberations have been made available resulting in a violation of
the fundamental right to freedom of speech and expression as
contained under Article 19(1)(a).
W. FOR THAT Rule 16 of the Blocking Rules, 2009 further states that
information regarding any request, complaints and actions shall
be kept strictly confidential. It is respectfully submitted that such
secretive banning of content is completely opposed to any norms
of natural justice where no notice has been provided to the author
of the content. Additionally, the Supreme Court has recognized in
a several judgments that the right to speech and expression
includes the right to read and receive information. Hence, the
absolute secrecy with which such blocking orders are made,
without any public notice and in the absence of any reasons
offends the right to freedom of speech and expression as
enshrined under Article 19(1)(a).
X. FOR THAT the Blocking Rules, fall outside the scope of reasonable
restrictions under Article 19(2) as they do not contain any
safeguards in the blocking of websites. Besides the absence of
any such safeguards, the Blocking Rules, 2009 do not contain
any requirements for the Central Government to provide the
reasons to what offences are committed in respect of the
Websites for which blocking orders are issued.
Y. FOR THAT the Blocking Rules, 2009 result in discriminatory
treatment of e-books and books- or more generally speech that is
published on the internet from speech which is published
physically on paper etc. Such discrimination in the absence of
any reasonable differentia is in contradiction with Article 14 which
contains the right to equality to equally placed speech. For
instance, the book banning provision that is contained under the
power to confiscate a publication under Section 95 of the Code of
Criminal Procedure, 1973 may be exercised when, (a) the
publication of which is punishable under section 124A or section
153A or section 153B or section 292 or section 293 or section
295A of the Indian Penal Code (45 of 1860); and (b) by an order
of the State Government may, by notification, state the grounds
of its opinion for the confiscation. Section 96 of the Code of
Criminal Procedure, 1973 further provides a statutory right of
Appeal to the State High Court impugning the Order of
Confiscation. Such an appeal can be made not only by the author
but by any person in recognition of the fundamental right of
speech and expression includes the right to read and receive
information. The Petitioner submits that the Blocking Rules, 2009
by failing to incorporate such safeguards not only conflict with the
right to freedom of speech and expression under Article 19(1)(a)
but also fails to satisfy the constitutional touchstones of equality
under Article 14 by discriminating against content which hosted
on the Internet.
INTERMEDIARIES RULES, 2011
Z. FOR THAT Rule 3(2) , 3(3), 3(4) and 3(7) of the Intermediaries
Rules, 2011 are violative of Articles 14, 19 and 21 of the
Constitution of India. That the said Intermediaries Rules, 2011
are liable to be quashed and declared unconstitutional as they
place unreasonable restrictions on the exercise of free speech
and expression as well as violate the right to privacy.
AA. FOR THAT Rule 3(2) of the Intermediary Rules requires private
companies to exercise active censorship by seeking out under
Rule 3(2) inter alia content that:
“ is grossly harmful, harassing, blasphemous defamatory,
obscene, pornographic, paedophilic, libellous, invasive of
another's privacy, hateful, or racially, ethnically objectionable,
disparaging, relating or encouraging money laundering or
gambling, or otherwise unlawful in any manner whatever.”
That none of the above or other terms under Rule 3(2) are
defined. Inasmuch as failure to comply with the said provisions
exposes intermediaries to civil and criminal prosecution, private
companies and individuals are incentivised to act conservatively
in censoring all content that could conceivably fall within any of
the categories of Rule 3(2).
BB.FOR THAT the impugned Intermediaries Rules, 2011 violate the
fundamental right to freedom of speech and expression granted
to citizens and are unconstitutional inasmuch as Sub-rule (4) of
rule 3 of Intermediaries Rules, 2011 mandates that the
intermediary, on whose computer system the information is
stored or hosted or published, upon obtaining knowledge by itself
or been brought to actual knowledge by an affected person in
writing or through email signed with electronic signature about
any such information as mentioned in sub-rule (2) above, shall
act within thirty six hours and where applicable, work with user or
owner of such information to disable such information that is in
contravention of sub-rule (2).
CC. FOR THAT the impugned Intermediaries Rules, 2011 place
unreasonable restrictions on the exercise of free speech and
expression wherein they while providing for an affected private
party to complain about a posted content to an Internet
Intermediary does not afford a right of hearing to the user who
posted the content.
DD. FOR THAT the impugned Intermediaries Rules, 2011 are liable
to be quashed and declared unconstitutional as they place
unreasonable restrictions on the exercise of free speech and
expression where even assuming without admitting a hearing is
granted by the Intermediary to the User who posted the content
the timelines for compliance render the hearing perfunctory. Sub-
rule (4) of rule 3 which requires the Intermediary to disable
information that is in contravention of sub-rule (2) within 36 hours,
upon obtaining knowledge by itself or on being brought to actual
knowledge by an affected person may in some instances not
provide the user who posted the content 24 hours notice to reply
to the complaint of an Effected Party.
EE. FOR THAT the impugned Intermediaries Rules, 2011 are liable to
be quashed and declared as unconstitutional as they place
unreasonable restrictions on the exercise of free speech and
expression where sub-rule (2) of Rule 3 includes an exhaustive
list including information that is grossly harmful, harassing,
blasphemous, defamatory, obscene, pornographic, pedophilic,
libelous, invasive of another's privacy, hateful, or racially,
ethnically objectionable, disparaging, relating or encouraging
money laundering or gambling, or otherwise unlawful in any
manner whatever. The subject matter of information listed in sub-
rule (2) of rule 3 is highly vague and open for wide interpretation.
Furthermore, it goes way beyond the restrictions imposed under
Article 19(2).
FF. FOR THAT the Intermediaries Rules, 2011 are liable to be
quashed and declared unconstitutional as they place
unreasonable restrictions on the exercise of free speech and
expression as they place a burden on the Intermediaries to
decide on the lawful nature of the content under sub-rule (2) of
Rule 3 without legislative guidance as a pre-condition for
exemption from liability. Intermediaries, on receiving a complaint,
to ensure that they continue to receive the protection offered by
Section 79 of the IT Act, will be forced to disable access to the
content posted by a user within thirty six hours irrespective of the
illegality. Thus, under the Intermediaries Rules, 2011 any person
who is critical of an article or a blog post can raise a complaint
with an Intermediary, and this will result in removal of the content
by the Intermediary. Thus, the direct effect of the rules will be
strict censoring of content posted online by users. The rules will
have a direct effect on the fundamental right of freedom of
speech and expression guaranteed under Article 19(1) of the
Constitution of India. Article 19(1) of the Constitution of India
guarantees all citizens the right to freedom of speech and
expression.
GG. FOR THAT the impugned Intermediaries Rules, 2011 are liable to
be quashed and declared as unconstitutional as they go beyond
the reasonable restrictions placed on the exercise of the right to
free speech and expression under Clause (2) of Article 19 of the
Constitution of India. Clause (2) of Article 19 of the Constitution of
Indiapermits the state to make laws mandating 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. Thus, any restrictions
that can be made on the right of citizens to freedom of speech
and expression can only be within the ambit of clause (2) of
Article 19. Any unreasonable restrictions on fundamental rights
that are imposed by a statute or executive orders are liable to be
struck down as unconstitutional by a competent court. The
Hon'ble Supreme Court has held in Express Newspapers
(Private) Ltd. and Anr. Vs. The Union of India (UOI) and Ors., AIR
1958 SC 578 that if any limitation on the exercise of the
fundamental right under Art. 19(1)(a) does not fall within the four
corners of Art. 19(2) it cannot be upheld. The Hon'ble Court
further held that there can be no doubt that freedom of speech
and expression includes freedom of propagation of ideas. It is
submitted that in judging whether a statute is constitutional the
effect that the statute will have on the fundamental rights of
citizens has to be examined. The effect of Intermediaries Rules,
2011 will be lead to strict censorship by Intermediaries of content
posted by users. Such an action by the intermediaries will affect
the fundamental right of freedom of speech and expression
guaranteed by Article 19(1) of the Constitution of India.
HH. FOR THAT Sub-rule (2) of Rule 3 of the Intermediaries Rules,
2011 is liable to be quashed and declared as unconstitutional as
it goes beyond reasonable the restrictions placed on the exercise
of the right to free speech and expression under Clause (2) of
Article 19 of the Constitution of India. Sub-rule (2) of Rule 3
contains various kinds and classes of Information for which the
Intermediary has to inform users that such information that
cannot be hosted, uploaded, modified, published, transmitted,
updated or shared. It is humbly submitted that the grounds for
such kinds and classes of Information is broadly and vaguely
worded and does not make reference to any provision of law. In
some instances the grounds do not find mention under any
legislative enactment and going beyond the breadth of Section 79
of the IT Act ostensibly creating new grounds and substantive
offenses or/and contraventions.
II. FOR THAT this Hon'ble Court considered the issue of restrictions
on freedom of speech in detail in Sakal Papers (P) Ltd. Vs. The
Union of India, AIR 1962 SC 305, has held that the fundamental
right to speech and expression may not be interpreted in a
narrow and pedantic manner. Hence as the Intermediaries Rules,
2011 go beyond the permissive limits to freedom of speech and
expression that can be imposed by a statute. Rule 3 of the
Information Technology (Intermediaries guidelines) Rules, 2011
is violative of the fundamental right to freedom of speech and
expression guaranteed under Article 19(1) of the Constitution of
India and is liable to be struck down.
JJ. FOR THAT Sub-rule (2) of Rule 3 mandates intermediaries to
place restrictions on the kind of content that a user can post by
listing a broad list of information. Sub-rule (2) of Rule 3 mandates
users not to host information included in a broad list that includes
information that is grossly harmful, harassing, blasphemous,
defamatory, obscene, pornographic, paedophilic, libelous,
invasive of another's privacy, hateful, or racially, ethnically
objectionable, disparaging, relating or encouraging money
laundering or gambling, or otherwise unlawful in any manner
whatever. The subject matter of information listed in sub-rule (2)
of rule 3 is highly subjective and is not defined either in the rules
or in the Act. The action of the Respondent No. 1 in notifying the
Intermediaries Rules, 2011 rules is highly unreasonable and
arbitrary.
KK. FOR THAT Sub-rule (4) of Rule 3 mandates that the
intermediary, upon obtaining knowledge by itself or been brought
to actual knowledge by an affected person about any such
information as mentioned in sub-rule (2) above, shall act within
thirty six hours to disable such information that is in contravention
of sub-rule (2), does not provide for an opportunity to the user
who has posted the content to reply to the complaint and to justify
his case. The rule that mandates the intermediary to disable the
content without providing an opportunity of hearing to the user
who posted the content is highly arbitrary. Moreover, the rules
result in endowing an adjudicating role to the intermediary in
deciding questions of fact and law, which can only be done by a
competent court. Such a provision of the rules is highly
unreasonable and arbitrary.
LL. FOR THAT Sub-rule (5) of rule 3 mandates the intermediary to
inform users that in case of non-compliance with rules and
regulations, user agreement and privacy policy for access or
usage of intermediary computer resource, the Intermediary has
the right to immediately terminate the access or usage rights of
the users to the computer resource of Intermediary and remove
non-compliant information. This provision will result in
termination of services to a user on posting of any content which
the intermediary deems as unlawful. Such a power mandated to
be exercised by the intermediary is highly unreasonable and
arbitrary.
MM. FOR THAT the Intermediaries Rules, 2011 are liable to be
quashed and declared as unconstitutional as violate the
fundamental Right to Privacy as provided under Article 21 of the
Constitution of India. Sub-rule (7) of rule 3 mandates the
intermediary, when required by lawful order, to provide
information or any such assistance to Government Agencies who
are lawfully authorised for investigative, protective, cyber security
activity. The requirement for lawful order is modified while
mandating that the information or any such assistance shall be
provided for the purpose of verification of identity, or for
prevention, detection, investigation, prosecution, cyber security
incidents and punishment of offences under any law for the time
being in force, on a request in writing stating clearly the purpose
of seeking such information or any such assistance. The
requirement of giving information about users by the intermediary
on a mere written request from an agency and in the absence of
safeguards violates the right to privacy of citizens.
NN. FOR THAT Sub-Rule 7 of the Intermediaries Rules, 2011, does
not make any reference to the specific Rules made under the
Telegraph Act or under the Information Technology Act, 2000 for
interception of communications/information and create an
additional power to intercept communications and breach
individual privacy in the absence of any safeguards. It is humbly
submitted that such this power for invasion of privacy exists
independently of any procedural safeguards and is contrary to
Articles 14, 19 and 21.
OO. FOR THAT the impugned Intermediaries Rules, 2011 are liable to
be quashed as they are ultra vires the parent provision, viz.
Section 79 of the IT Act. The Central Government obtains the
source of power to issue the Intermediaries Rules, 2011 from the
provisions of the Information Technology Act, 2000. The rule
making power has to be strictly confined to the boundaries
specified as per the Act and cannot result in expanding the scope
of the Act itself. Chapter XII of the Information Technology Act,
2000 (as amended) provides Exemption from Liability of
Intermediaries in Certain Cases. This exemption is subject to
certain conditions to be observed by the Intermediaries. The
Government obtains the source of power to issue these rules
from two provisions of the Act :
“S.79 (2) (c) – ...the intermediary observes due diligencewhile discharging his duties under this Act and also observessuch other guidelines as the Central Government mayprescribe in this behalf.”“S.87 (2) (zg) - the guidelines to be observed by theintermediaries under sub-section (2) of section 79”
Thus the rule making power of the Central Government is limited
to prescribing other guidelines in this behalf. Hence by exceeding
the scope of the provisions of the IT Act, 2000 theIntermediaries
Rules, 2011 are liable to be quashed as they are ultra vires the
parent provision.
PP. FOR THAT the impugned Intermediaries Rules, 2011 are liable to
be quashed as they are ultra vires the parent provision, viz.
Section 79 of the IT Act. These guidelines formed under Section
79 can only be related to “due diligence” to be observed by the
intermediary while discharging its duties under the Act. But the
Intermediaries Rules, 2011 have widened the scope of the Act by
legislating on information that can be posted by a user and listing
a much broad list of information that can be considered as
unlawful. The Intermediaries Rules, 2011 go beyond controlling
intermediaries and result in controlling the users who post
content.
QQ. FOR THAT the abovementioned provisions of the Intermediaries
Rules, 2011 are liable to be quashed as they are ultra vires the
parent provision, viz. Section 79 of the IT Act. The Hon'ble
Supreme Court has held in Agricultural Market Committee Vs.
Shalimar Chemical Works Ltd. (1997)5 SCC 516that the delegate
which has been authorized to make subsidiary Rules and
Regulations has to work within the scope of its authority and
cannot widen or constrict the scope of the Act or the policy laid
down thereunder. It cannot, in the garb of making Rules, legislate
on the field covered by the Act and has to restrict itself to the
mode of implementation of the policy and purpose of the Act. In
view of the law as laid down in the aforementioned judgments,
Respondent No. 1 has acted beyond its powers vested by the IT
Act, 2000 in framing the Intermediaries Rules, 2011.
The Intermediaries Rules, 2011 are in excess of the provisions
contained in Section 79 of the Act as amended. Various
provisions contained in the Intermediaries Rules, 2011 have, in
fact, made additions to the provisions in Section 79 of the Act.
Rules have thus added and amended the provisions in the Act.
Rules notified by the respondents are ultra vires of the
Information technology Act, 2000 and are liable to be struck
down.
RR. FOR THAT the impugned Intermediaries Rules, 2011 are liable to
be quashed as they are ultra vires the provisions of Section 69 of
the IT Act. Section 69 of the IT Act, 2000 provides the power to
issue directions for interception or monitoring or decryption of any
information through any computer resource. Sub-section (2) of
Section 69 provides for procedures and safeguards subject to
which such interception or monitoring may be carried out. The
Information Technology (Procedure and Safeguards for
Interception, Monitoring and Decryption of Information) Rules,
2009 were notified by the Government to provide for such
safeguards and procedures. These rules enshrine the guidelines
prescribed by the Hon'ble Supreme Court in People's Union of
Civil Liberties (PUCL) Vs. Union of India (UOI) and Anr., (1997)1
SCC 301.These rules mandate that such interception or
monitoring of information can be carried out by an order by an
order issued by a competent authority. The competent authority
to issue such an order under these rules is the Secretary in the
Ministry of Home Affairs, in case of Central Government or the
Secretary in charge of the Home Department, in case of a State
Government or Union Territory. Sub-rule (7) of rule 3 that
mandates an intermediary to provide information does not have
any such safeguards and is in violation of the provisions of the
Act and the rules issued thereunder.
The Intermediaries Rules, 2011 being ultra vires of Section 69 of
the IT Act and equally violative of the safeguards for the right to
privacy under it, is liable to be struck down.
SS. FOR THAT the Intermediaries Rules, 2011 also vest vast
censorship powers with Private Intermediaries in the absence of
necessary safeguards. These Private Intermediaries serve as
essential conduits for the expression of free speech and
expression. It is submitted that censorship of speech and
expression is permissible under law flowing from the mandate of
Article 19(2). However, as held by the Hon'ble Supreme Court in
a catena of cases the power of censorship should be exercised
under law which contains well defined grounds and with adequate
safeguards. Hence, the power to confiscate a publication under
Section 95 of the Code of Criminal Procedure, 1973 is may be
exercised when, (a) the publication of which is punishable under
section 124A or section 153A or section 153B or section 292 or
section 293 or section 295A of the Indian Penal Code (45 of
1860); (b) by an order of the State Government may, by
notification, state the grounds of its opinion for the confiscation.
Section 96 of the Code of Criminal Procedure, 1973 further
provides a statutory right of Appeal to the State High Court
impugning the Order of Confiscation. The Petitioner submits that
the Intermediaries Rules, 2011 are not only vaguely drafted but
also fail to incorporate such procedural safeguards failing to
satisfy the constitutional touchstones of reasonable restrictions
on the right to speech and expression and hence are liable to be
quashed.
TT. FOR THAT the purported public consultation resulting in the
formation of the Intermediaries Rules, 2011 has been carried out
in an unreasonable and arbitrary manner.
UU. FOR THAT the Intermediaries Rules, 2009, Blocking Rules, 2009
and Section 66A of the IT Act, which have penal consequences,
contain vague and ambiguous terms, thus ought to be quashed
for being arbitrary and thus infringing upon Article 14, 19 and 21
of the Constitution of India.
THE CONSTITUTIONALITY OF THE IMPUGNED SECTION AND RULES
ON GROUNDS OF EXCESSIVE VAGUENESS
VV. FOR THAT it was held in the case of State of Madhya Pradesh v.
Baldeo Prasad AIR 1961 SC 293 by this Hon’ble Court that:
“Where a statute empowers the specified authorities to takepreventive action against the citizens it is essential that itshould expressly make it a part of the duty of the saidauthorities to satisfy themselves about the existence of whatthe statute regards as conditions precedent to the exercise ofthe said authority. If the statute is silent in respect of one ofsuch conditions precedent it undoubtedly constitutes a seriousinfirmity which would inevitably take it out of the provisions ofArt. 19(5). The result of this infirmity is that it has left to theunguided and unfettered discretion of the authority concernedto treat any citizen as a goonda. In other words, therestrictions which it allows to be imposed on the exercise ofthe fundamental right of a citizen guaranteed by Art. 19(1)(d)and (e) must in the circumstances be held to beunreasonable”
WW. FOR THAT in the matter of K.A. Abbas v Union of India AIR 1971
SC 481 it was held that:
“It cannot be said as an absolute principle that no law will beconsidered bad for sheer vagueness. The real rule is that if alaw is vague or appears to be so, the court must try toconstrue it, as far as may be, and language permitting, theconstruction sought to be placed on it, must be in accordancewith the intention of the legislature. Thus if the law is open todiverse construction, that construction which accords best withthe intention of the legislature and advances the purpose oflegislation, is to be preferred. Where however the law admitsof no such construction and the persons applying it are in aboundless sea of uncertainty and the law prima facie takesaway a guaranteed freedom, the law must be held to offendthe Constitution, This is not application of the doctrine of dueprocess. The invalidity arises from the probability of themisuse of the law to the detriment of the individual.’ “A lawwhich affects fundamental rights and is so vague that thepersons applying it are in a sea of uncertainty may bedeclared unconstitutional and void”
XX. FOR THAT Furthermore, in the matter of Kartar Singh v State of
Punjab, 1994 SCC (3) 569, the Hon’ble court held that;
“It is the basic principle of legal jurisprudence that anenactment is void for vagueness if its prohibitions are notclearly defined” at 130: “It is the basic principle of legaljurisprudence that an enactment is void for vagueness if itsprohibitions are not clearly defined” “Laws should give theperson of ordinary intelligence a reasonable opportunity to
know what is prohibited.” “Vague laws may trap the innocentby not providing fair warning” “Impermissibly delegates basicpolicy matters to policemen and also judges with the attendantdangers of arbitrary and discriminatory application.”
YY. FOR THAT Further in the matter of Tarsem Singh v Union of India
(1995) 115 PLR 34 it was held that:
“the law which is vague is void. The laws should give a personof ordinary intelligence, a reasonable opportunity to know whatis permitted so that he may act according to law. Vague lawsmay lay a trap to the innocent by not providing fair warning.”
ZZ. FOR THAT That under US Constitutional Law, a statute is void for
vagueness and unenforceable if it is too vague for the average citizen to
understand. This is because it deprives citizens of their right without fair
process, violating due process. In Smith v Gougen 415 U.S. 566 (1974),
the court held that the term “treats contemptuously did not provide a
“readily ascertainable standard of guilt” and found that the statutory
language used “may be said to encourage arbitrary and erratic arrests and
convictions.” Inherently vague statutory language permits such selective
enforcement, thus declared it void for vagueness.
AAA. FOR THAT in Winters v New York 333 U.S. 507 (1948) the court
held that 'where the statute uses words of no determinative meaning, or
the language is so general and indefinite as to embrace not only acts
commonly recognized as reprehensible, but also others which it is
unreasonable to presume were intended to be made criminal, it will be
declared void for uncertainty.'
‘It leaves open, therefore, the widest conceivable inquiry, the scope
of which no one can foresee and the result of which no one can
foreshadow or adequately guard against.'
It was held in the said case that where a statute is so vague as to
make criminal an innocent act, a conviction under it cannot be
sustained.
BBB. FOR THAT In Reno v American Civil Liberties 521 U.S. 844
(1997) the court found a violation of the First Amendment of the
Constitution. Judge Buckwalter stated that “indecent” “patently offensive”
and “in context” were so vague that criminal enforcement of either section
would violate the “fundamental constitutional principle” of “simple fairness”.
CCC. FOR THAT In Ashcroft v American Civil Liberties Union 535 U.S.
564 (2002) Justice Stevens at 674:
“Criminal prosecutions are, in my view, an inappropriatemeans to regulate the universe of materials classified as“obscene: since the line between communications which“offend” and those which do not is too blurred to identifycriminal conduct”
DDD. FOR THAT furthermore in Connally v General Construction Co 269
U.S. 385 (1926) it was held at 391:
“Terms of a penal statute creating a new offence mustbe sufficiently explicit to inform those who are subject toit what conduct on their part will render them liable to itspenalties…and a statute which either forbids or requiresthe doing of an act in terms so vague violates the firstessential of due process”
EEE. FOR THAT in Papchristou v Jacksonville 405 U.S. 156 (1972) the
court stated in para 162 that “The ordinance is void for vagueness…it fails
to give a person of ordinary intelligence fair notice that his contemplated
conduct is forbidden by the statute” and because it encourages arbitrary
and erratic arrests and convictions (Thornhill J.).
FFF. FOR THAT it is was also held in the matter of Pierce v United
States 314 U.S. 306 (1920) “The crime must be defined with appropriate
definiteness”. In Cantwell v. State of Connecticut 310 U.S. 296 (1940) it
was held that
“There must be ascertainable standards of guilt. Men ofcommon intelligence cannot be required to guess at themeaning of the enactment.”
86. The Petitioners submit that they have not filed any other petition
arising out of the same cause of action or facts before this Hon’ble
Court or any other court in the country.
87. The Annexures P-1 to P-18 attached herewith are true copies of their
respective originals.
PRAYER
In the circumstances, it is therefore most humbly prayed that this Hon'ble
Court may be pleased to issue a writ of mandamus, certiorari or a writ or
direction of like nature to:-
i. Issue a writ of certiorari or any other appropriate writ and declare
Section 66A of the Information Technology Act, 2000 to be ultra
vires and unconstitutional contrary to Articles 14, 19 and 21 of the
Constitution of India;
ii. Direct the Respondent No. 2 go grant notice and hearing to the
author/owner of uploaded content under Rules 5, 8(1) and 11 of
the Information Technology (Procedure and Safeguards for
Blocking for Access of Information by Public) Rules, 2009 formed
under Section 79(2) and Section 87(2)(zg) of the Information
Technology Act, 2000 without which the said provisions would be
contrary to natural justice and therefore void;
iii. Direct the Respondent No. 2 that any order made under the
Information Technology (Procedure and Safeguards for Blocking
for Access of Information by Public) Rules, 2009 to block a
website provide reasons and be published in the Official Gazette
of Petitioner No. 1 and to that extent Rule 16 of the same be
declared void;
iv. Issue a writ of Mandamus or any other writ or direction and
declare that any person will have locus standi to challenge any
order of blocking made under Information Technology (Procedure
and Safeguards for Blocking for Access of Information by Public)
Rules, 2009 as per the right to receive information under article
19, 21 and 14 of the Constitution of India;
v. Issue an appropriate writ order or direction to declare that the
requirement of confidentiality of the complainant under Rules 16
of the Information Technology (Procedure and Safeguards for
Blocking for Access of Information by Public) Rules, 2009 be
determined in each case by a court of competent jurisdiction;
vi. Issue an appropriate writ order or direction and quash Rules 3 (2),
3(3), 3(4) and 3(7) of the Information Technology (Intermediaries
Guidelines) Rules, 2011 as ultravires Section 79 of the
Information Technology Act, 2000 and contrary to article 19, 14
and 21 of the Constitution of India ;
vii. Pass such other and further order (s) as this Hon'ble Court may
deem fit and proper in the facts and circumstances of the case.
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS INDUTY BOUND SHALL EVER PRAY.
Drawn by:
Karuna Nundy, Advocate
Apar Gupta, Advocate
Filed by
PUKHRAMBAM RAMESH KUMAR
Advocate on record for the petitioner
Dated:
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
CRL.M.P. OF 2013
IN
WRIT PETITION (CRIMINAL) NO. ____ OF 2013
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
IN THE MATTER OF:
PEOPLES’ UNION FOR CIVIL LIBERTIES …PETITIONER
Versus
UNION OF INDIA AND ORS ….RESPONDENTS
APPLICATION FOR STAY AND INTERIM DIRECTIONS
To,
The Hon’ble Chief Justice of India
and his companion justices of
the Hon’ble Supreme Court of India
The humble petition of the petitioner above named:
MOST RESPECTFULLY SHOWETH:
1. The present petition impugns Section 66A of the Information Technology
Act, 2000, the Information Technology (Procedure and Safeguards for
Blocking for Access of Information by Public) Rules, 2009 [henceforth
referred to as the Website Blocking Rules] and the Information Technology
(Intermediaries Guidelines) Rules, 2011 [The Intermediary Guidelines] as
being violative of Articles 14, 19 and 21 of the Constitution of India.
2. The instant writ petition is being filed under Article 32 of the Constitution
of India by way of a Public Interest Litigation as there are instances of
complaints under Section 66A of the Information Technology Act, 2000 as
well as misuse of the abovementioned Rules all over country.
3. The facts and circumstances giving rise to the present application are
narrated in the accompanying Writ Petition and the same are not reiterated
herein in the interest of brevity. The Petitioner craves leave to refer to and
rely upon the accompanying Writ Petition atthe time of hearing of the
present application.
4. It is respectfully stated that Section 66A of the Information Technology
Act, 2000 provides a maximum of three years punishment for due to, inter-
alia, “annoyance” or “inconvenience” being caused by online speech or
writing. The offence is cognizable and due to the vague and undefined
purported offences contained within it the power to punish speakers and
writers through arrest and threat of criminal trial is at the first instance
granted to complainants with offended sentiments and police officials. It is
respectfully submitted that such criminalisation of speech over the internet
and mobile phone communication is contrary to Articles 14, 19 and 21,
because, inter alia, the said section penalizes and restricts online speech
to a much greater degree than offline speech, restricts it in an
unreasonable manner contrary to Article 19 (1) (2) of the Constitution of
India and that a significant proportion of the offences in Section 66A do not
even fall within the permissible categories of restriction in Article 19 (2). It
is respectfully stated that Prof. Ambikesh Mahapatra and Mr. Subrata
Sengupta are, amongst many others, facing rigours of criminal trial merely
for circulating an innocuous cartoon amongst neighbours, a criminal
complaint having been brought against them by a stranger to the email
conversation. That Prof Mahapatra is a Professor of chemistry at Jadavpur
University and that Mr. Sengupta, a retired engineer, is approx. 73 years of
age and suffers from serious illness, that as such they – and others
similarly placed- should not be required to go through a criminal trial under
a provision that is ex-facie unconstitutional, especially when there is no
other provision of the criminal law that they are charged with.
5. It is respectfully stated that the Information Technology (Intermediaries
Guidelines) Rules, 2011 (hereinafter referred to as the “Intermediary
Rules, 2011”) which are formed under Section 79(2) read with Section
87(2)(zg) of the Information Technology Act, 2000 also, inter alia, provide
for “grossly harmful”, “blasphemous”, “invasive of another's privacy”,
“ethnically objectionable”, “disparaging” such vague and undefined
categories which require legal determinations and effective censorship by
private online service providers, are contrary to Articles 14, 19 and 21, and
are not reasonable restrictions or falling within the permissible categories
of restriction in Article 19(2).
6. It is respectfully stated further that the Information Technology
(Procedure and Safeguards for Blocking for Access of Information by
Public) Rules, 2009 which have been made under Section 69A read with
Section 87(2)(z) of the Information Technology Act, 2000 similarly provide
for blocking of web pages in India without proper publication or notice to
public containing the reasons for blocking of websites. Further the process
for blocking of websites is entirely secret and ex facie fail to meet
constitutional safeguards of natural justice under Articles 19 and 21. The
unreasonably restrictive procedure for banning websites in addition, does
not meet the procedural natural justice standards for book banning; e-
books may thus be banned easily and secretively, immune to legal
challenge as compared with their paper counterparts. As such the rules
concerning the blocking of websites in their preset form are violative of
Article 14 of the Constitution of India.
7. It is respectfully stated that Section 66A, the Blocking Rules, 2009 and
Intermediaries Rules, 2011 all promote censorship on the Internet and
conflict with the protections under Articles 14, 19 and 21 of the Constitution
of India and hence approach this Hon’ble Court under its extraordinary
jurisdiction under Article 32 of the Constitution of India.
8. That as stated in the petition, the Information Technology (Blocking of
Information) Rules, 2009 provide for a secretive process by which Orders
are issued by Respondent No. 1 to block websites in the absence of any
safeguards or natural justice afforded to the author/owner. Due to the non-
transparent procedure, in which Blocking Orders are not made public and
even reasons are not provided for issuing them it becomes imperative for
any further action under them to be stayed. The broad deprivations of
freedom of speech caused by such widespread blocks are set out in detail
in the empirical studies annexed to the petition.
9. The Information Technology (Intermediary Guidelines) Rules, 2011
are delegated legislation which is ex-facie ultra vires the principal
legislation, i.e. Section 79 of the Information and Technology Act, 2000.
The Information Technology (Intermediary Guidelines) Rules, 2011 provide
for private censorship where takedown of content by intermediaries
(companies and individuals) is incentivized by immunity from civil and
criminal prosecution. Due to the broad, undefined categories present under
the Information Technology (Intermediary Guidelines) Rules, 2011 the
intermediaries are interpreting the provisions in a conservative manner
leading to excessive takedown of content as evinced by the empirical
study annexed to this petition conducted by the Centre for Internet and
Society “Intermediary Liability in India: Chilling Effects on Free Expression
on the Internet, 2011”.
10. It is respectfully stated further that content on the internet taken down
under the Intermediary Guidelines and banned under the Website
Blocking Rules without notice to the author/owner and without adequate
remedies for challenge or appeal stifle dissent and unpopular opinion
and hamper the functioning of democracy pending disposal of the
present petition.
11. It is respectfully stated that those being arrested and those undergoing
trial under Section 66A of the IT Act shall suffer irreparable loss and
injury if the reliefs as prayed for hereinafter are not granted in favour of
the Petitioner.
12. That the present application is being made bonafide and in the
interests of justice.
PRAYER
In the premises it is most respectfully prayed that this Hon'ble Court may
be pleased to -
i) a) Stay the operation of Section 66A of the Information
Technology Act, 2000 and all proceedings being conducted
thereunder;
In the alternative;
b) Direct formation of a Committee of experts in law and
information technology to review fresh complaints and ongoing
cases under Section 66A of the Internet Technology Act, 2000
pending disposal of the present petition, and that no FIR be
registered, action be taken by police authorities, cases be
continued pursuant to Section 66A until approval by the said
Committee;
ii) Direct Respondent No. 2 that blocked websites under the
Information Technology (Procedure and Safeguards for
Blocking for Access of Information by Public) Rules, 2009
display reasons for which they were blocked by the
Designated Authority pending the disposal of the present writ
petition ;
iii) Direct that pending disposal of the present petition Grievance
Officers of intermediaries be notified by Respondent No. 2 to
pursue the following procedure to take down content when
brought to actual knowledge in writing that the said content is
in violation of law:
a) Initiate steps to inform the author/ owner of the content
and to take down the said content within 36 hours
b) redress such complaints promptly but in any case within
one month from the date of receipt of complaint.
c) Confirm takedown of content on registration of an FIR or
by order of a competent court.
iv) Pass such other and further order as may be deemed fit and
proper in the facts and circumstances of the present case.
AND FOR THIS ACT OF KINDNESS AND JUSTICE THE PETITIONERSHALL, AS IN DUTYBOUND, EVER PRAY.
FILED BY:
Filed on:
PUKHRAMBAM RAMESH KUMAR
Advocate for the Petitioner
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