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