Vous êtes sur la page 1sur 13

I.

THE IMPUGNED ACT IS VIOLATIVE OF FUNDAMENTAL RIGHT UNDER ARTICLE 14.

i.

The impugned Act is impractical: ELABORATE. (i).(a) The Act is vague and liable to be arbitrarily used: Doctrine of void for vagueness: Article 14 of the Constitution It is well established fact that Part III of our Constitution is modelled on the Bill of Rights in the U.S. Constitution. Furthermore the words used in Article 14 of our Constitution have been borrowed from the 14th Amendment of the U.S. Constitution. The Indian Courts have relied extensively on the decisions of the U.S. Supreme Court in interpreting the particular Article.1 Void for vagueness is a legal concept that states that a given statute is void and unenforceable if it is too vague for the average citizen to understand and does not provide fair warning.2. Laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.3 In United States regulations containing words such as 'obscene', 'indecent', 'immoral', 'prejudicial, to the best interests of people', 'tending to corrupt morals', 'harmful' were considered vague and were void4.

Applicability in India: The Indian courts have also upheld this doctrine. In State of Madhya Pradesh and Anr. v. Baldeo Prasad,5 the Central Provinces and Berar Goondas Act 1946 was declared void for uncertainty. The condition for the application of Sections 4 and 4A was that the person sought to be proceeded against must be a goonda but the definition of goonda in the Act indicated no
1

Basheshar Nath v. CIT, (1959) Supp 1 SCR 528, 551; V.K. Sircar, The Old and New Doctrines of Equality : A Critical Study of Nexus Tests and Doctrine of Non-Arbitrariness, (1991) 3 SCC (Jour) 1
2 3 4

Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). Kartar Singh v. State of Punjab (1994) 3 SCC 569 In Kingsley International Pictures Corporation. v. Regents (1959) 360 U.S. 684. AIR 1961 SC 293

tests for deciding which person fell within the definition. The provisions were therefore held to be uncertain and vague. Similarly, the impugned Act is vague for the following reasons: (i).(a).(1) Definition of Abusive Communication: Section 2(a) of the Act defines Abusive Communication. This definition is vague in the following aspects: a) No definition of harass or threaten is given, which could prove problematic in attempts to develop clear and objective boundaries for enforcement.6 These terms can be broadly interpreted and juvenile pranks or jokes could fall under this provision. b) The standard of reasonable person evoked to fix the liability under this provision is again vague. This discretionary standard can be arbitrarily used by enforcement agencies to punish innocent individuals. c) The phrase serves no legitimate purpose is indefinite as what is legitimate to one person may not be legitimate to another person. It has been held in several cases that such subjective elements lead to personal derelictions.7 (i).(a).(2) Definition of Sexually Offensive Communication: Section 2(d) of the Act defines Sexually Offensive Communication. This again relies on standards that are not particularly clear. To determine what content is suitable for minors the statute looks to prevailing standards in the adult community. The term patently offensive has been held to be vague and open ended. It was reiterated that definite standards should be laid down such as specifically denied by law.8 There can never be a common standard in any community. Every transmitter of a message will likely have a different definition of what that is appropriate. Furthermore, Social Networking Websites are located in cyberspace which transcends the geographical and cultural barriers. Hence what is suitable material or conduct for the member of one country might not be
6

Michael L. Pittaro, Cyber stalking: An Analysis of Online Harassment and Intimidation, (International Journal of Cyber Criminology, Vol 1, 2007) 7 Swamy Shraddananda v. State of Karnataka, AIR 2008 SC 3040; Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009)6SCC498 8 REnu v. ACLU

suitable for a member of another country. Similarly the serious literary, artistic, political or scientific value standard as required in 2(d)(3) is also very subjective in nature. FIND AUTHORITY (i.)(a)(iii.) Definition of Social Networking Website: The definition of Social networking Website under Section 2(c) of the impugned Act is too wide. A website which is not a social networking website per se but has a networking feature might be required to comply with the impugned Act. For instance, the website of a company which allows the employees to exchange ideas online might come within the purview of this Act even though the companys core business is not as a social networking website. Similarly, pages found on the websites of newspapers where visitors can leave their comments will classify as social networking websites under this Act. Furthermore, according to the definition a page which is accessible to third parties but wherein the third parties may not directly communicate with the creator of the page, will also be regulated under this Act. Thus this definition is too broad so as to defeat the object of this Act. The Act seeks to curb misuse of the social networking sites and not any site which has the remotest networking feature.

(i)(b)Statute is void for vagueness: Thus owing to the aforementioned lacunae in the definitions the impugned Act is highly vague and ambiguous.9 It would be unjust to punish a person without providing clear notice about what conduct is prohibited. For instance it was held that the banning of certain movies under a statute relating to the use of premises "for the purpose of lewdness" was unconstitutional when "lewdness" is not statutorily defined.10 Also, if the contours and minimum guidelines of the laws are not objective, enforcement of the law may be uneven and prone to personal predilections.11 Legislative efforts could run afoul of the Constitution if the
9

Baldeo prasad State ex rel. Faches v. N. D. D., Inc., 228 N. W. 2d 191 (Iowa 1975) 11 Kolender v. Lawson, 461 U.S. 352, 358 (1983)
10

statutory language is not clearly defined and a reasonable citizen would not know what conduct was permitted and what conduct was prohibited.12 This ambiguity in the statute will give unbridled powers in the hands of the enforcement agencies as the aforementioned phrases are susceptible to be interpreted in a subjective manner thereby leading to arbitrariness. Equality is antithetic to arbitrariness.13 An arbitrary action necessarily involves negation of equality and is violative of Article 14.14 This Act should be declared unconstitutional and invalid. The invalidity arises from the probability of the misuse of the law to the detriment of the individual. Wherein the persons applying a law are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution.15 (i).(b) The Act is irrational To characterize an Act as irrational, the Court has to hold on material that it is a decision so outrageous as to be in total defiance of logic or moral standards. 16 In the present case the Act does not lay down any plausible standards for the implementation of the Act. The Act is highly impracticable and in defiance of logic in the following ways:

(i.)(b)(1) No standard for obtaining the consent or age of the person on social networking website
12

Grayned v. Rockford, 408 U.S. 104, 108 (1972); In City of Chicago v. Morales, 527 U.S. 41 (1999), Chicago adopted an anti-loitering ordinance targeted at gangs. If a police officer reasonably believed that at least one person in a group of two or more loitering was a gang member, the officer could order them to leave the area. Failure to leave was a misdemeanor offense. The Court found the definition of loitering to be vague and the requirements to avoid breaking the law unclear. City of Chicago, 527 U.S. at 5960.
13

E.P. Royappa v. State of Tamil Nadu, (1974) SCC 3; State of Bihar v. Upendra (2009) 5 SCC 65 (para 24) Ajay Hasia v. Khalid Mujib (1981) 1 SCC 722; Maneka Gandhi v. Union of India (1978) 1 SCC 248; K.A.Abbas v. Union Of India, AIR 1971 SC 481 Union Railway Construction Co. Ltd. v. Ajay Kumar, AIR 2003 SC 1843 : (2003) 4 SCC 579, 591; State of NCT of

14

15

16

Delhi v. Sanjeev, (2005) 5 SCC 181, 193

There is no effective way to determine the identity or the age of a user who is accessing social networking website. For these reasons, there is no reliable way in many instances for a sender to know if the person is a major or a minor.17Furthermore while many social networks have minimum age

requirements as part of their terms of service, many under age users lie about their age in order to use popular social networks. Thus the consent of a person which is required under Section 4 of the Act before transmitting of sexually offensive communication can be given fraudulently by a minor who has projected himself as an adult in his profile. Furthermore, no procedure is laid down under the Act which spells out the manner in which such consent will be deemed to have been obtained. This can be elucidated with the help of an illustration. In cases of rape, evidence of consent can be obtained by the physical examination of the prosecutrix. However,this will not be possible in the case of the impugned Act as the only way of obtaining the evidence of the prior consent is from the communication between the parties. Such communication can never be verified if it is oral. (i.)(b)(3) The consent clause defeats the object of the Act Morality is a relevant factor in determining the rationality of the statute.18 Section 4 of the Act envisages that sexually offensive communication can take place between adults with their consent. This provision defeats the very purpose of the Act whose object is to prevent the misuse of social networking websites because the communication of obscene material through sexually offensive, abusive and defamatory communication is not in consonance with the moral standards of the society19 of Dhanyasthan. The communications of sexually offensive

communication with the consent of the parties would only corrupt public morality

17 18 19

Renu v. ACLU Garg v. Union of India, (1981) 4 SCC 676 Abbas v. Union of India, AIR 1971 SC 481 : (1970) 2 SCC 780

and defeat the object of the Act. Thus this provision reeks with immorality20 and is productive of great public mischief.21 (i.)(b)(2) Jurisdictional predicament of the Internet Persons communicating and transacting via the Internet often do not know each others physical location and usually cannot control the geographical flow of content. In addition, information mediated by many Internet services can appear simultaneously in almost every nation in the world. Also, information transmitted on the Internet can easily flow across national borders without detection. When discussing the question of Internet regulation, there is one essential aspect to keep in mind which is that a global form of communication which has no central depository and thus beyond the control of any government. 22 Even in an era of instant global communication, geography continues to play a major role.23 The difficulties involved in controlling persons and groups from afar are compounded in Cyberspace.24 The online world destroys classic notions of jurisdiction by transcending geographical constraints, making questions of jurisdiction very difficult and uncertain.25 Courts have struggled to develop a satisfactory solution, yet no progress has been made toward a uniform global standard of Internet jurisdiction.26 Thus the Internet regulation by goverment creates a jurisdictional quagmire.27

20 21 22 23

H.M. Seervai, Constitutional Law of India (Universal Law Publishing Co. Pvt. Ltd., New Delhi, 4 edn., Vol.-5) Ibid Regulation and the Internet, 26 Southern University Law Review 93 at 93 (1998) Biegel, Beyond Our Control? Confronting the Limits of our Legal System in the Age of Cyberspace(London and

th

Massachusetts, 2001) at 111


24

Geist, 16 Berkeley Technology Law Journal at 1371(2001) Heaven, A Proposal for Removing Road Blocks from the Information Superhighway By Using an Integrated

25

International Approach to Internet Jurisdiction, 10 Minnesota Journal of Global Trade 373 at 377 (2001)
26 27

Meehan, 31 Boston College International and Comparative Law Review at 349 (2008) David Post and David Johnson, Law and Borders The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367 (1996).

ii.

The impugned Act is discriminatory :


Art. 7 of the Universal Declaration of Human Rights says All are entitled

without any discrimination to equal protection of law. Equality before law or equal protection of law means that among equals the law should be equal and should be equally administered and the likes should be treated alike.28 Equal protection means the right to equal treatment in similar circumstances, 29 both in the privileges conferred and in the liabilities imposed by the laws.30 In the present case the liability under the Act is imposed only if the offences described in the Act are directed against people located in Dhanyasthan. The people located in some other State are at an equal risk of becoming victims of the misuse of social networking websites by the people located in Dhanyasthan. Thus it is submitted that the Act discriminates between the people31 located in Dhanyasthan and the people not located in Dhanyasthan as their position is same with respect to the subject matter of the legislation32, i.e. prevention of misuse of social networking websites.

iii.

The discrimination is not permissible on the principles of rational classification In order to pass the test of permissible classification two conditions must be fulfilled namely: (i.) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii.) that the differentia must have a rational relation to the subject sought by the statute in question.33

28 29 30 31 32 33

Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34 Shrikrishna v. State of Rajathan, AIR 1955 SC 795 State of W.B. v. Anwar Ali, AIR 1952 SC 75; Food Corp. of India v. Bhanu Lodh, (2005) 3 SCC 618 Uttarakhand M.K.P. v. State of U.P., AIR 1992 SC 1695 Chiranjit Lal v. Union of India, AIR 1951 SC 41 Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34; State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75

In the present case, computer literacy of the State of Dhanyasthan is 52%. The newspaper reports and news channels have been publishing several reports regarding the misuse of social networking websites. The Annual Conference of the Principals of Engineering Colleges passed a resolution requesting the Government to take measures to control the misuse of social networking websites.

Based on the above facts, it is apparent that the misuse of social networking websites is done by the people of Dhanyastahan also. However Sections 3, 4 and 5 of the Act make persons transmitting sexually offensive communication, abusive communication, and defamatory communication to or about a person located in Dhanyasthan liable under the Act. A person located in Dhanyasthan may also transmit sexually offensive, abusive and defamatory communication against a person belonging to some other State. There is thus no intelligible differentia34 in making the offense under the Act penal only if it is committed against a person located in Dhanyasthan.

Further, the classification made by the Legislature of making the Act penal only if the offences specified in the Act are committed against a person located in Dhanyasthan has no relation with the object sought by the Statute i.e. preventing the misuse of social networking websites in Dhanyasthan since people located in Dhanyasthan may also transmit sexually offensive communication, abusive communication, and defamatory communication against a person belonging to some other State. CONTENT INCLUDE CLASSIFICATION ON THE BASIS OF

Thus it is submitted that there is no nexus between the basis of classification and the object of the impugned Act. Hence, the classification is invalid under Article 14 of the Constitution of India.

34

A factor that distinguishes one in a different class from another which is capable of being understoodfrom th P Ramanatha Aiyar, The Major Law Lexicon (Lexis Nexis Butterworths Wadha, Nagpur, 4 edn., 2010)p.3471

iv.

The Act suffers from excessive delegation

(iii.)(a) No guiding principles or machinery for implementation of policy Though a legislative policy may be expressed in a statute, it must provide suitable machinery for implementing that policy in such a manner that such implementation does not result in undue or excessive hardship and arbitrariness.35
Air India Vs. Nergesh Meerza & Ors., (1981) 4 SCC 335, it was held that a discretionary power may not necessarily be a discriminatory power but where a statute confers a power on an authority to decide matters of moment without laying down any guidelines or principles or norms, the power has to be struck down as being violative of Article 14.

Even though the Dhanyasthan Social Networking Safety Act shows the policy of safeguarding the people against the misuse of social networking websites, it provides no principles on which the policy is to be implemented. It does not provide or prescribe (i.) any machinery for the regulation36 of content posted on social networking websites; (ii.) no authority under the Act for the effect of bringing any communication within the ambit of abusive or defamatory or sexually offensive communication; (iii.) the procedure to be followed by the authority37 when a person is made liable under the provisions; (iv) the right of representation to the accused; (v) the adjudication of the disputes arising from the order of the authority; (vi) the jurisdiction of the class of Courts for the purpose of the disputes arising under the Act. AUTHORITY

(iii.)(b) Vesting wide powers on executive without any procedural safeguards

Furthermore Section 7 of the Act provides scope for unchanelled administrative discretion as it vests very wide rule making power in the hands of the Government of Dhanyasthan and does not provide any measures for the safeguard against the

35 36 37

L.M. Singhvi, pg. 1573, vol.-1 Himmat Lal K. Shah v. Commr. Of Police, (1973) 1 SCC 227 K. Panduranga v. State of A.P., AIR 1985 AP 268

misuse of this provision by the Government. A provision which leaves an unbridled power to an authority cannot in any sense be characterised as reasonable.38

Thus the Act is violative of Article 14 of the Constitution of India as it confers unguided and unfettered power on the executive.39

(iii.)(c) Vagueness leads to arbitrariness

Where the conditions for the grant or renewal of licences are uncertain, vague and unintelligible and consequently wide and unfettered power was conferred upon the statutory authorities for the regulation of licences, it would be correct in law to hold such a Statute as violating Art.14 of the Constitution of India. 40 Where the standard or guide furnished by the statute is vague or uncertain it amounts to the absence of any guide at all and the law must be struck down as conferring unguided power upon the Executive to discriminate.41 The definitions of the offences which are made penal by the Dhanyasthan Social Networking Safety Act are not certain and intelligible. Thereby they do not serve as guide to the administrative authority in deciding whether a communication can be termed as offensive under the Act. Thus the Act confers wide discretionary powers in the executive to discriminate, thus violating Article 14 of the Constitution of India.

v.

Conflict with IT Act and IPC Where an exclusive special law is enacted to deal with a particular class of people, the same will be held to be unconstitutional if the classification of such class stands on a reasonable basis.42

38 39 40 41 42

Hari Chand Sarda v. Mizo District Council, AIR 1967 SC 829 : (1967) 1 SCR 1012 B.B. Rajwanshi v. State of U.P., (1988) 2 SCC 415 : AIR 1988 SC 1089 Harakchand Ratanchand Banthia v. Union of India, (1969) 2 SCC 166 : (1970) 1 SCR 479 Kathi Raning v. State of Saurashtra, 1952 SCR 435 : AIR 1952 SC 123 Cf. Gurbachan v. Sate of Bombay, 1952 SCR 737 : AIR 1952 SC 221

Existing Law: Sections 66A, 66 E, 67, 67A and 67B of the IT Act 2000 make sending offensive messages; capturing, publishing or transmitting the image of a private area of any person without his or her consent; publishing or transmitting obscene material; publishing or transmitting of material containing sexually explicit act; publishing or transmitting of material depicting children in sexually explicit act in electronic form penal. Also, Sections 292, 293 and 294 of IPC make obscenity an offence. Unreasonable classification of Social Networking Websites as a special class Lack of intelligible differentia:The impugned Act puts a burden on a specific technology and type of website i.e., the social networking websites. It imposes criminal sanction vis--vis social networking websites only. The publication and transmission of abusive defamatory and sexually offensive can take place through electronic mail not falling within the ambit of Social Networking Website and their effects can be equally menacing. Electronic mails can be sent to the recipient having such communication. The only requirement is the knowledge of the recipeints unique mail address.43 The message will be available to him/her when he/she opens his/her electronic mail inbox.44Thus there is no difference peculiar45 to social networking websites and yet the law hits only46 the social networking websites. Hence the presumption of reasonable classification is of no anvil as the

43

United States v. Morris, 928 F.2d 504 (2d Cir. 1991); David K. McGraw, Sexual Harassment in Cyberspace: The

Problem of Unwelcome E-Mail, 21 Rutgers Computer & Tech. L.J. 491 (1995); Former Italian Judge Receives Death ThreatsVia Internet, Netacross the World (Mar. 25, 1996), abstracted fromAgence France Press; Straits Times (Singapore) March 24, 1996 (on file with author); Editorial, Policing Cyberspace, N.J. L.J., Feb. 27, 1995, at 22; EMail Is Becoming A Conduit of Prejudice on Many
44

Edward A. Cavazos & Gavino Morin, Cyberspace and the Law: Your Rights and Duties in the On-Line World, 17

Yale J. Int'l L. 41, 83 (2008)


45 46

Executive Engineer, Dhenkanal Minor Irrigation Division v. N.C.Buddharaj, (2001) 2 SCC 721 Ibid

impugned Act is discriminatory on the face of it47 and it is patent that no intelligible differentia exists48 for regulation only of social networking websites. Classification hasno nexus with the object of the Act: The object of the Act is to prevent offensive communication on the cyberspace as well as to stop cyberharassment and cyber-defamation of individuals. However abusive, sexually offensive and defamatory communication can be transmitted via electronic mail or electronic mail messages not falling within the ambit of Social Networking Website. Thus the object sought by the impugned Statute is not justified by directing the enactment at social networking websites. Hence it is submitted that the impugned Act which is a special legislation is constitutionally invalid because it makes unreasonable classification.

The impugned Act as a special law is invalid under Article 14: If persons who are similarly situated in relation to the object of the impugned legislation can be made subject to a procedure which is substantially different from the ordinary procedure at the option of the Executive, the law which authorises the special procedure must be held to be discriminatory.49 The taxation of income (Investigation Commission) Act, 1947 was a special Act enacted for the purpose of proceeding against the tax evaders. But the same person could be proceeded against under the general law of income-tax. Though the persons who could be dealt with under the Act belonged to the same class as those who could be dealt with under the general law, it was left entirely to the discretion of the administrative authority to proceed under the 1947 Act instead of under the general law. In the present case, the persons who are being made liable under the impugned Act are already governed by the IT Act 2000 and IPC which are general laws and Section 6 of the Act confers unbridled powers on the Government to enact any procedure under the
47

Garg R.K. v. Union of India, AIR 1981 SC 2138 Anil Ratan Sarkar v. State of W.B., (2001) 5 SCC 327 Kedar Nath v. State of W.B., 1954 SCR 30 (42) : AIR 1953 SC 333; Suraj Mal v. IT Investigation Commn., (1955)

48 49

1 SCR 448 : AIR 1954 SC 545

impugned Act. What is wrong in such a case is not the mere availability of two procedures with different incidents,50 but the absence of any reasonable classification made by the Legislature itself or of any guidance offered by the law to the executive to make its choice.51 Furthermore the classification made by the State to determine who should be treated as a class for the purpose of legislation must be based on some real and substantive distinction bearing a just and reasonable relation to the object sought to be attained and cannot be made arbitrary and without any substantial basis.52 The impugned Act authorizes the trial of any case by a procedure53 which may differ substantially from the ordinary procedure to the prejudice of the accused54 and thus offends against Article 14. Further the impugned Act is arbitrary as it leaves to the uncontrolled discretion of the Executive to select the procedure to be followed under the Act.55

50 51 52

Maganlal v. Municipal Corp., (1974) 2 SCC 402 Ibid State of Gujarat v. Dharam Das, AIR 1982 SC 781 : (1982) 1 SCC 370; Iqbal Singh v. Delhi Administration, AIR

1977 SC 2437
53 54

State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284 : AIR 1952 SC 75 Royala Corpn. V. Dir. Of Enforecement, (1970) 1 SCR 639 : AIR 1970 SC 494

55

State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284(331) : AIR 1952 SC 75