IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. OF 2012

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF:

Shreya Singhal ……Petitioner Versus

Union of India …. Respondents

PAPER BOOK

(FOR INDEX PLEASE SEE INSIDE)

ADVOCATE FOR THE PETITIONER: RANJEETA ROHATGI

INDEX

SR.NO. PARTICULARS PAGES

1. Check List A1 – A2

2. Synopsis and list of dates B -

3. Writ Petition with Affidavit

4. ANNEXURE –P/1:

Copies of news reports in relation to the aforesaid cases of invocation of Section 66A

RECORD OF PROCEEDINGS

S.NO. DATE OF RECORD OF PROCEEDINGS PAGES

SYNOPSIS

The instant writ petition is being filed under Article 32 of the

Constitution of India by way of a Public Interest Litigation (“PIL”)

seeking to impugn Section 66A of the Information Technology Act,

2000 (“IT ACT”) as being violative of Article 14,19 and 21 of the

Constitution of India and so also to seek directions under Article 142

of the Constitution on the application of Sections 41, 156(1) and

196A of the Code of Criminal Procedure (Cr.P.C) so as to reconcile

the aforesaid three provisions with Article 19 (1) (a) of the

Constitution.

The Petitioner herein like crores of other citizens of this Country is a

user of the internet and of social networking sites such as Facebook

and Twitter. Recent events involving action taken by various

authorities under the aforesaid Section 66A of the IT Act have left a

chilling effect on the Petitioner and crores of other internet users. It is

in this conspectus that the petitioner herein approaches this Hon’ble

Court under its extra ordinary jurisdiction under Article 32 of the

Constitution of India.

SECTION 66 A

The said Section 66A 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.” (emphasis supplied)

It is humbly submitted that the phraseology of the aforesaid Section

is so wide and vague and incapable of being judged on objective

standards, that it is susceptible to wanton abuse. It is pertinent to

note that all the terms underlined by the Petitioner for emphasis,

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 Hon’ble Court has long held in A.K. Roy v. Union of India,

(1982) 1 SCC 271, that:

“the impossibility of framing a definition with mathematical

precision cannot either justify the use of vague expressions or

the total failure to frame any definition at all which can furnish,

by its inclusiveness at least, a safe guideline for understanding

the meaning of the expressions used by the legislature.”

In that case, this Hon’ble Court while dealing with the National

Security Act went on to hold as follows:

“The particular clause in sub-section (2) of Section 3 of the

National Security Act is, therefore, capable of wanton abuse in

that, the detaining authority can place under detention any

person for possession of any commodity on the basis that the

authority is of the opinion that the maintenance of supply of

that commodity is essential to the community. We consider the

particular clause not only vague and uncertain but, in the

context of the Explanation, capable of being extended

cavalierly to supplies, the maintenance of which is not

essential to the community. To allow the personal liberty of the

people to be taken away by the application of that clause

would be a flagrant violation of the fairness and justness of

procedure which is implicit in the provisions of Article 21.”

(Emphasis supplied)

It is humbly submitted that in view of the wide and vague

phraseology of Section 66A of the IT Act, the aforesaid dicta of this

Hon’ble Court is squarely attracted, for this provision is indeed

capable of wanton abuse in view of the subjective discretion of the

police and the susceptibility of it being invoked cavalierly. In fact, the

following recent events fortify the apprehensions of the Petitioner

herein:-

a. In April 2012, a professor of chemistry from Jadavpur

Univeristy in West Bengal, one Sri Ambikesh Mahapatra, was

arrested for posting a cartoon concerning a political figure

from the State of West Bengal on social networking sites.

b. In May 2012, two Air India employees, V Jaganatharao and

Mayank Sharma were arrested by the Mumbai Police under

inter alia Sec. 66 of the IT Act for putting up content on

Facebook and Orkut which was against a trade union leader

and some politicians. They were in custody for 12 days.

c. In October 2012, one businessman Ravi Srinivasan was

arrested by the Puducherry Police for having made a

allegation on a social networking site twitter against a

politician from Tamil Nadu.

d. Most recently, Ms Shaheen Dadha, a 21-year-old girl was

arrested a few days ago for questioning the shutdown in

Mumbai after the demise of a political figure on the social

networking website facebook, which was 'liked' and shared by

her friend one Ms Renu, who was also arrested by the Thane

police in Maharashtra.

Hence, it is humbly submitted that the chilling effect caused by the

rather wide legislative language of the said Section 66A is already a

reality and not a far-fetched apprehension. It is humbly submitted

that such a chilling effect is most certainly violative of the sacrosanct

freedom of speech and expression guaranteed by Article 19 (1) (a)

of the Constitution. Furthermore, whether or not the said section 66A

meets the test of Article 19 (2), in view of the arbitrariness flowing

from its vague language, the aforesaid provision it is submitted is

nonetheless violative of Article 14 and Article 21 of the Constitution

based on the afore-cited dicta in AK Roy (supra).

SECTION 41 AND 156 (1) CR.P.C.

Section 41 of the Cr.P.C. empowers the police to arrest any person

without an order from the Magistrate and without a warrant in the

event that the offence involved is what is classified as “a cognizable

offence” under the first schedule to the Code. Similarly, Section 156

(1) empowers the investigation by the police into a cognizable

offence without an order of a Magistrate. Thus, the code of criminal

Procedure allows the setting into motion of criminal law even to the

extent of an arrest in the cases of cognizable offences without any

judicial sanction. It is humbly submitted that the Petitioner wishes to

bring to the notice of this Hon’ble Court the practice of abusing the

aforesaid provisions of the Cr.P.C. by the police authorities

inasmuch as offences under 66A are clubbed with one or the other

cognizable offence under the Indian Penal Code such as Section

505 IPC so as to allow the police to arrest a person primarily being

booked for an offence under Section 66A of the IT Act.

This Hon’ble Court has long recognized in Pepsi Foods Ltd. v.

Special Judicial Magistrate, (1998) 5 SCC 749 that setting into

motion criminal law even for non cognizable offences is a serious

matter and cannot be done as a matter of course when a magistrate

acts under Section 156 (3) and 157 of the Cr.P.C as follows;- .

“28. Summoning of an accused in a criminal case is a serious

matter. Criminal law cannot be set into motion as a matter of

course. It is not that the complainant has to bring only two

witnesses to support his allegations in the complaint to have

the criminal law set into motion. The order of the Magistrate

summoning the accused must reflect that he has applied his

mind to the facts of the case and the law applicable thereto.

He has to examine the nature of allegations made in the

complaint and the evidence both oral and documentary in

support thereof and would that be sufficient for the

complainant to succeed in bringing charge home to the

accused. It is not that the Magistrate is a silent spectator at the

time of recording of preliminary evidence before summoning of

the accused. The Magistrate has to carefully scrutinise the

evidence brought on record and may even himself put

questions to the complainant and his witnesses to elicit

answers to find out the truthfulness of the allegations or

otherwise and then examine if any offence is prima facie

committed by all or any of the accused.” (emphasis supplied)

It is humbly submitted that if such is the high bar to set the criminal

law into motion, then offences involving the freedom of speech and

expression and its curtailment most certainly deserve the same high

bar whether or not it is a cognizable offence.

More recently, this Hon’ble Court recognized this facet of the

interplay of constitutional freedom and criminal jurisprudence in the

case of S. Khushboo v. Kanniammal, (2010) 5 SCC 600 as

follows:

“In such cases, the proper course for Magistrates is to use

their statutory powers to direct an investigation into the

allegations before taking cognizance of the offences alleged. It

is not the task of the criminal law to punish individuals merely

for expressing unpopular views. The threshold for placing

reasonable restrictions on the “freedom of speech and

expression” is indeed a very high one and there should be a

presumption in favour of the accused in such cases. It is only

when the complainants produce materials that support a prima

facie case for a statutory offence that Magistrates can proceed

to take cognizance of the same. We must be mindful that the

initiation of a criminal trial is a process which carries an implicit

degree of coercion and it should not be triggered by false and

frivolous complaints, amounting to harassment and humiliation

to the accused.” (Emphasis supplied)

Thus, this Hon’ble Court suggested that a Section 202 of Cr.P.C.

inquiry is a must as a prerequisite before issuance of process in

cases involving the freedom of speech and expression.

It is interesting to that there is in fact a protection contained in

Section 196 (1-A) of the Cr.P.C. whereby cognizance of an offence

under Section 153-B and Section 505 of the IPC cannot be taken by

a court without prior sanction of Central government or of the State

Government or of the District Magistrate. However, this bar

introduced by an amendment in 1980 though a move in the right

direction is insufficient for it does not in any way blunt or qualify the

powers of the police under Section 156 (1) or under Section 41 of

the Cr.P.C. The Petitioner submits that unless there is judicial

sanction as a prerequisite to the setting into motion the criminal law

with respect to freedom of speech and expression, the law as it

stands is highly susceptible to abuse and for muzzling free speech in

the country.

THE “CHILLING EFFECT”

The invocation of penal provisions on tenuous grounds has a

“chilling effect” on free speech, that is to say it severally

disincentivizes citizens from exercising their constitutionally

protected right to free speech for fear of frivolous prosecution and

police harassment. This Hon’ble Court has held in a catena of cases

that the constitutional protection of free speech is calculated to

insulate the freedom from such a “chilling effect”.

It is submitted that it would amount to little consolation to say that

the right to free speech of a citizen will be eventually vindicated at

the end of an extended legal proceeding. The very fact that the

machinery of the criminal law is set in motion against citizens on

frivolous grounds amounts to harassment that is inadequately

mitigated by the eventual discharge or acquittal. Hence, it is

submitted that the protection of the fundamental right to free speech

necessitates the existence of a safety walls at the very threshold of

setting the criminal law into motion.

RELIEFS PRAYED FOR

Hence, apart from the striking down of Section 66A of the IT act is

constitutional, the petitioner herein also seeks the invocation of

Article 142 by this Hon’ble Court as has been done in the cases of

PUCL/ Vishaka so as to lay down a guideline that all offences

irrespective of the classification under the first schedule of the Code

of Criminal Procedure, if they involve freedom of speech and

expression ought to be treated as non cognizable offences for the

purposes of Section 41 and 156 (3) of the Code of Criminal

Procedure and that even for commencing investigation in such

matters a Section 202 inquiry is mandatory.

LIST OF DATES

2008 An amendment to the Information Technology Act, 2000

introduced Section 66A which 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; orb) 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.”

April 2012 A professor of chemistry from Jadavpur Univeristy in

West Bengal, one Sri Ambikesh Mahapatra, was

arrested for posting a cartoon concerning a political

figure from the State of West Bengal on social

networking sites.

May 2012 Two Air India employees were arrested by the Mumbai

Police under inter alia Sec. 66 of the IT Act for putting

up content on Facebook and Orkut which was against a

trade union leader and some politicians. They were in

custody for 12 days.

Oct 2012 One businessman Ravi Srinivasan was arrested by the

Puducherry Police for having made a allegation on a

social networking site twitter against a politician from

Tamil Nadu.

Nov 2012 One Ms Shaheen Dadha, a 21-year-old girl was

arrested a days ago for questioning the shutdown in

Mumbai after the demise of a political figure on the

social networking website Facebook, which was 'liked'

and shared by her friend one Ms Renu, who was also

arrested by the Thane police in Maharashtra.

26.11.2012 The present petition under Article 32 of the Constitution

of India is filed.

IN THE SUPREME COURT OF INDIA

WRIT JURISDICTION

(Under Article 32 of the Constitution of India)

Writ Petition (Civil) No. of 2012

IN THE MATTER OF

Ms. Shreya Singhal r/o C-109, South Extension-IINew Delhi

Petitioner Versus

1. Union of India Through Secretary Ministry of Home AffairsNew Delhi

2. Ministry of Communications & Information Technology. Department of Telecommunications. 1110, Sanchar Bhawan, Ashoka Road,. New DelhiThrough its Secretary

3. Ministry of Law & Justice Through its Secretary 4th FloorA Wing Shastri Bhawan New delhi : 110001 Delhi ,India .

….Contesting Respondents

WRIT PETITION U/ARTICLE 32 FOR ISSUANCE OF WRIT OF MANDAMUS FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS U/A 14, 19, 21 UNDER THE CONSTITUTION OF INDIA

To,

The Hon’ble Chief Justice of India and his companion judges

of the Hon’ble Supreme Court of India, at New Delhi

The humble petition of the petitioners

above named

MOST RESPECTFULLY SHEWETH:

1. That this is a Writ Petition under Article 32 of the Constitution

of India by way of a Public Interest Litigation (“PIL”) seeking to

impugn Section 66A of the Information Technology Act, 2000

(“IT ACT”) as being violative of Article 14,19 and 21 of the

Constitution of India and so also to seek directions under

Article 142 of the Constitution on the application of Sections

41 and 156(1) of the Code of Criminal Procedure (Cr.P.C) so

as to bring the aforesaid two provisions in conformity with

Article 19 (1) (a) of the Constitution.

2. The Petitioner herein is studying to do law and like crores of

other citizens of this Country is a user of the internet and of

social networking sites such as Facebook and Twitter.

3. Recent events involving action taken by various authorities

under the aforesaid Section 66A of the IT Act have left a

chilling effect on the Petitioner and crores of other internet

users. The said events are as follows:

(i) In April 2012, a professor of chemistry

from Jadavpur Univeristy in West

Bengal, one Sri Ambikesh Mahapatra,

was arrested for posting a cartoon

concerning a political figure from the

State of West Bengal on social

networking sites.

(ii) In May 2012, two Air India employees

were arrested by the Mumbai Police

under inter alia Sec. 66 of the IT Act for

putting up content on Facebook and

Orkut which was against a trade union

leader and some politicians. They were

in custody for 12 days.

(iii) In Oct 2012, one businessman Ravi

Srinivasan was arrested by the

Puducherry Police for having made a

allegation on a social networking site

twitter against a politician from Tamil

Nadu.

(iv) In Nov 2012, one Ms Shaheen Dadha, a

21-year-old girl was arrested a days

ago for questioning the shutdown in

Mumbai after the demise of a political

figure on the social networking website

Facebook, which was 'liked' and shared

by her friend one Ms Renu, who was

also arrested by the Thane police in

Maharashtra.

Copies of news reports in relation to the aforesaid cases of

invocation of Section 66A, as available on the web portals of

such news publications, are collectively marked and annexed

as Annexure – P/1 (Colly).

4. It is in this conspectus that the petitioner herein approaches

this Hon’ble Court under its extra ordinary jurisdiction under

Article 32 of the Constitution of India.

5. It is submitted that the respondent no.1 is Union of India

through Secretary, Ministry of Home, and respondent no.2 is

Secretary, Ministry of Communications & Information

Technology and Respondent No. 3 is Secretary, Ministry of

Law & Justice 

6. That all the respondents fall within the definition of Article 12

of the Constitution of India and hence amenable to the Writ

Jurisdiction of this Hon’ble Court.

7. The following substantial question of law of general public

importance arise in the instant petition:

QUESTIONS OF LAW

A. Whether the vague description of various acts constituting

an offence under Section 66A of the IT Act, without any

definition or prescription of standards whatsoever being

capable of wanton abuse is violative of the sacrosanct

freedom of speech and expression guaranteed by Article

19 (1) (a) of the Constitution and so also violative of Article

14 and 21 of the Constitution?

B. Whether the protection afforded to free speech by means

of the bar contained in Section 196 (1A) of the Cr.P.C. to

taking cognizance of an offence by courts in absence of

prior sanction by the Central or State Government or

District Magistrate in relation to offences u/s 153-A, 295-A

or 505 (1) of the IPC is rendered otiose in the absence of

any similar bar on the power of police to investigate,

search, seizure and arrest under Section 156 (1) and 41 of

the Cr.P.C in such cases. (vide State of Karnataka v.

Pastor P. Raju, (2006) 6 SCC 728)?

C. Whether the chilling effect created by the frivolous

invocations of criminal law especially in cases involving

free speech deserves to be negated by a judicial safety

valve such as an order from a magistrate as a prerequisite

to initiation of investigation or arrest by the police?

D. Whether this Hon’ble Court, in the absence of legislative

safeguards against the abuse of the powers under Section

41 and 156 (1) of the Cr.P.C. ought to issue guidelines

under Article 142 of the Constitution so as to reconcile the

freedom of speech and expression under Article 19 (1) (a)

with the aforesaid provisions of the Cr.P.C. including as

suggested by this Hon’ble Court in S. Khushboo v.

Kanniammal, (2010) 5 SCC 600?

8. That the brief facts leading to the filing of the instant petition

are set out herein below:-

I. That in 2008, an amendment to the Information

Technology Act, 2000 introduced Section 66A which read

as follows:-

66A. “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.” (emphasis supplied)

II. It is submitted that in view of the wide and vague

phraseology of Section 66A of the IT Act, it is humbly

submitted that the aforesaid dicta of this Hon’ble Court is

squarely attracted, for this provision is indeed capable of

wanton abuse in view of the subjective discretion of the

police and the susceptibility of it being invoked cavalierly.

In fact, the following recent events fortify the

apprehensions of the Petitioner herein:-

(i) In April 2012, a professor of chemistry

from Jadavpur Univeristy in West Bengal, one Sri

Ambikesh Mahapatra, was arrested for posting a

cartoon concerning a political figure from the State of

West Bengal on social networking sites.

(ii) In May 2012, two Air India employees

were arrested by the Mumbai Police under inter alia

Sec. 66 of the IT Act for putting up content on

Facebook and Orkut which was against a trade

union leader and some politicians. They were in

custody for 12 days.

(iii) In Oct 2012, one businessman Ravi

Srinivasan was arrested by the Puducherry Police for

having made a allegation on a social networking site

twitter against a politician from Tamil Nadu.

(iv) In Nov 2012, one Ms Shaheen Dadha, a

21-year-old girl was arrested a days ago for

questioning the shutdown in Mumbai after the

demise of a political figure on the social networking

website Facebook, which was 'liked' and shared by

her friend one Ms Renu, who was also arrested by

the Thane police in Maharashtra.

4 That it is submitted by the petitioner herein being aggrieved is

assailing the constitutionality of Section 66A and other

provisions of Indian Penal Code under Article 32 of the

Constitution of India on the following amongst various grounds

which are taken in the alternative and without prejudice to one

another.

5 The Petitioner is filling the instant writ petition on the following

amongst others grounds without prejudice to each other:

GROUNDS

A. For that the phraseology of Section 66A of the IT Act, 2000 is

so wide and vague and incapable of being judged on objective

standards, that it is susceptible to wanton abuse and hence

falls foul of Article 14, 19 (1) (a) and Article 21 of the

Constitution.

B. For that all terms constituting an offence under Section 66 A of

the IT Act have not been defined either under the IT Act, 2000

or under the General Clauses Act or under any other

legislation and thus susceptible to abuse and consequentially

violative of Article 14 and 21 of the Constitution. This Hon’ble

Court has held in A.K. Roy v. Union of India, (1982) 1 SCC

271, that:

“The impossibility of framing a definition with

mathematical precision cannot either justify the use of

vague expressions or the total failure to frame any

definition at all which can furnish, by its inclusiveness at

least, a safe guideline for understanding the meaning of

the expressions used by the legislature.”

In that case, this Hon’ble Court while dealing with the National

Security Act went on to hold as follows:

“The particular clause in sub-section (2) of Section 3 of

the National Security Act is, therefore, capable of

wanton abuse in that, the detaining authority can place

under detention any person for possession of any

commodity on the basis that the authority is of the

opinion that the maintenance of supply of that

commodity is essential to the community. We consider

the particular clause not only vague and uncertain but,

in the context of the Explanation, capable of being

extended cavalierly to supplies, the maintenance of

which is not essential to the community. To allow the

personal liberty of the people to be taken away by the

application of that clause would be a flagrant violation of

the fairness and justness of procedure which is implicit

in the provisions of Article 21.” (Emphasis supplied)

C. For that in view of the following recent events fortify the

apprehensions of the Petitioner as to the abuse of Section

66A of the IT Act:-

a. Application of this section in the case of one Ms Shaheen

Dadha, a 21-year-old girl who was arrested a few days ago

for questioning the shutdown in Mumbai after the demise of

a political figure on the social networking website facebook,

which was 'liked' and shared by her friend one Ms Renu,

who was also arrested by the Thane police in Maharashtra.

b. One businessman Ravi Srinivasan being arrested by the

Puducherry Police last month for having made a allegation

on a social networking site twitter against a politician from

Tamil Nadu.

c. A professor from Kolkata, one Sri Ambikesh Mahapatra,

being arrested in April 2012 for posting cartoons against a

political figure on social networking sites.

D. For that the invocation of penal provisions on tenuous grounds

has a “chilling effect” on free speech, that is to say it severally

disincentivizes citizens from exercising their constitutionally

protected right to free speech for fear of frivolous prosecution

and police harassment. This Hon’ble Court has held in a

catena of cases that the constitutional protection of free

speech is calculated to insulate the freedom from such a

“chilling effect”. It is submitted that it would amount to little

consolation to say that the right to free speech of a citizen will

be eventually vindicated at the end of an extended legal

proceeding. The very fact that the machinery of the criminal

law is set in motion against citizens on frivolous grounds

amounts to harassment that is inadequately mitigated by the

eventual discharge or acquittal. Hence, it is submitted that the

protection of the fundamental right to free speech necessitates

the existence of a safety valve at the very threshold of setting

the criminal law into motion.

E. For that this Hon’ble Court has long recognized in Pepsi

Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC

749 that setting into motion criminal law even for non

cognizable offences is a serious matter and cannot be done

as a matter of course when a magistrate acts under Section

156 (3) and 157 of the Cr.P.C as follows;- .

“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support

thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” (emphasis supplied)

It is humbly submitted that if such is the high bar to set the

criminal law into motion, then offences involving the freedom

of speech and expression and its curtailment most certainly

deserve the same high bar whether or not it is a cognizable

offence.

F. For that this Hon’ble Court in S. Khushboo v. Kanniammal,

(2010) 5 SCC 600 suggested that in matters involving freedom

of speech a Section 202 inquiry ought to be made mandatory

as follows :

“In such cases, the proper course for Magistrates is to use

their statutory powers to direct an investigation into the

allegations before taking cognizance of the offences alleged. It

is not the task of the criminal law to punish individuals merely

for expressing unpopular views. The threshold for placing

reasonable restrictions on the “freedom of speech and

expression” is indeed a very high one and there should be a

presumption in favour of the accused in such cases. It is only

when the complainants produce materials that support a prima

facie case for a statutory offence that Magistrates can proceed

to take cognizance of the same. We must be mindful that the

initiation of a criminal trial is a process which carries an implicit

degree of coercion and it should not be triggered by false and

frivolous complaints, amounting to harassment and humiliation

to the accused.

G. For that the protection afforded to free speech by means of

the bar contained in Section 196 (1A) of the Cr.P.C. to taking

cognizance of an offence by courts in absence of prior

sanction by the Central or State Government or District

Magistrate in relation to offences u/s 153-A, 295-A or 505 (1)

of the IPC is rendered otiose in the absence of any similar bar

on the power of police to investigate, search, seizure and

arrest under Section 156 (1) and 41 of the Cr.P.C in such

cases. (vide State of Karnataka v. Pastor P. Raju, (2006) 6

SCC 728).

H. For that this Hon’ble Court, in the absence of legislative

safeguards against the abuse of the powers under Section 41

and 156 (1) of the Cr.P.C. ought to issue guidelines under

Article 142 of the Constitution so as to reconcile the freedom

of speech and expression under Article 19 (1) (a) with the

aforesaid provisions of the Cr.P.C. including as suggested by

this Hon’ble Court in S. Khushboo v. Kanniammal, (2010) 5

SCC 600.

9. That no Writ Petition u/A 226 of the Constitution has been filed

in this matter to any High Court or Under Article 32 in this

Hon’ble Court prior to this petition by the Petitioner herein.

P R A Y E R

Under the circumstances this Hon’ble Court may be pleased to

a) declare that Section 66A of the Information Technology Act,

2000 is violative of Article 14, 19 (1) (a) and 21 of the

Constitution of India and hence unconstitutional; and

b) issue guidelines under Article 142 of the Constitution of India

as this Hon’ble Court may deem fit to reconcile Section 41 and

156 (1) of the Cr.P.C with Article 19 (1) (a) of the Constitution

including but not limited to;

i. that offences under the Indian penal Code and

any other legislation creating a criminal offence if

they involve the freedom of speech and

expression be treated as a non-cognizable

offence for the purposes of Section 41 and

Section 156 (1);

ii. that the postponement of process under Section

202 of Cr.P.C. is mandatory in cases involving the

freedom of speech and expression

c) pass such other or further order which this Hon’ble Court

deem fit and proper in the facts and circumstances of the

present case.

Drawn BY Filed by

NINAD LAUD & SHIVPRASAD SWAMINATHAN RANJEETA ROHATGIAdvocates Advocate for the petitioners

Dated: