NO. PARTICULARS OF DOCUMENTS PAGES '
1. Listing Pro Forma A AY
2. Synopsis & List of Dates B-
3. Writ Petition with Affidavit \- 9 %
4. ANNEXURE P-1
True Copy of the Report Expert Committee dated 25.08.2005 q q . | 5 5
5. ANNEXURE P-2:
True Copy of the IT (Amendment) Bill No. 96 of 2006 (
dated ‘.12.2006 \ 5 = 25)
aaLISTING PROFORMA
IN THE SUPREME COURT OF INDIA.
4, Nature of the matter CRIMINAL
2. (a)Name(s) of Petitioner(s)/Appellant(s) PEOPLES UNION FOR CIVIL
LIBERTIES
(b) e-mailD NA
3. feinerne(s) of Respondent (s) UNION OF INDIA
ena NA
4. Number of case. WRIT PETITION ( CRL) OF.2013
5. (a)Advocate(s) for Petitioner(s)PUKHRAMBAM RAMESH KUMAR
(b)e-mail ID. Ramesh. Pukhrambam @gmail.com
6. (a) Advocate(s) for Respondent(s) + NA
(b) e-mail ID. NA
7. Section dealing with the matter PIL
8. Date of the impugned Order/Judgment NA
8A. Name of Hon’ble Judges NA
8B. In Land Acquisition Matters : NA
i) Notification/Govt. Order No. uls. 4,5) NA
ii) dated. issued by Centre/State of. = NA
ii) Exact purpose of acquisition & village involved. .NA
8C. In Civil Matters :-
i) Suit No., Name of Lower Court...
Date of Judgment.....- NA
8D. In Writ Petitions:~
“Catchword” of other similar matters..... NA
8E. In case of Motor Vehicle Accident Matters :
Vehicle No... .NAAA
8F. In Service Matters
(i) Relevant service rule, if any.. .NA
(ii)G.0./CirculariNotification, if applicable or in question... .NA
8G. In Labour Industrial Disputes Matters :
LD. Reference/Award No., if applicable .. .NA
Nature of urgency... INTERIM STAY
9. Incase it is a Tax matter :
a) Tax amount involved in the matter NA
b) Whether a reference/statement of the case was called for or
rejected .NA
c) Whether similar tax matters of same parties filed earlier (may be for
earlierlother Assessment Year)?. NA
d) Exemption Notification/Circular No. NA
14. Valuation of the matter : NA
12. Classification of the matter :
(Please fill up the number & name of relevant category with sub category
as per the list circulated)
No. of Subject Category with full name: 1800
No. of sub-category with full name: 1807& ors.
43. Title of the Act involved (Centre/State) NA
14, (a) Sub-Classification (indicate Section/Article of the Statute) NA
(b) Sup-Section involved ; NA
Ve mi of the Rules involved (Centre/State NA
(d) Sub-classification (indicate Rule/Sub-rule of the Statute)NA ..
415. Point of law and question of law raised in the case NA
46. Whether matter is not to be listed before any Hon'ble Judge?
Mention the name of the Hon'ble Judge.... NA.
417. Particulars of identical/similar cases, if anyA-3
a) Pending cases...
b) Decided cases with citation
417A. Wag SLP/Appeal/Writ filed against same impugned Judgmentiorder
1
NA...
i
eatlier? If yes, particulars.
18. Wh¢ther the petition is against interlocutory/final order/decree in the
case.......Final Order
49. Ifitis a fresh matter, please state the name of the High Court and the
Coram in the impugned Judgment/Order
20. If the matter was already listed in this Court + NA
a) When was it listed?...
b) What was the Coram?.
c) What was the direction of the Court...
a1. Whether a date has already been fixed either by Gourt or on being
mentioned for the hearing of matter? If so, please indicate the date
fixed... NA
22. Is there a caveator? If so, whether a notice has been issued to
him?.... NA.
23. Whether date entered in the Computer?.
24, Ifit is a criminal matter, please state :
a) Whether accused has surrendered...
b) Nature of offence, i.e. convicted under Section with Act...
c) Sentence awarded.
d) Sentence already undergone by the accused..
24) (i) FIR/RC/etc...
Date of Registration of FIR etc..
Name & place of the Police Station...
(ii) Name & place of Trial Court...Case No. in Trial Court and Date of Judgment:
(iii) Name and place of 1* Appellate Court.
- Case No. in 1* Appellate Court & date of Judgment.
Dateddh.10.2013.
(PUKHRAMBAM RAMESH KUMAR )
Advocate for
Petitioner (S)/Appellant(s)/Respondent(s)-
a is
1
\ | SYNOPSIS '
lh
e
i
Ths 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.J 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 cv 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 stil pending in this Hoh’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
Teferred 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 664 of the Information Technology Act, 2000 as
well ag misuse of the abovementioned Rules all over country despite this
Hon'ble Court issuing notice in Shreya Singhal vs Union of India (WP (c)
467 of 2012) and connected Writ Petitions/ Special Leave Petitions.we
Ee
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. tis 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 offine speech, restricts it in an unreasonable manner
contrary to Article 19 (1) (2) ‘of the Constitution of India and that a
significant proportion ofthe offences in Section 66A do not even fall within
the permissible categories of restriction in Article 19 (2).
Sit slaty, the Information Technology (Intermediaries Guidelines) Rules,
2 ' (hereinafter referred to as the “Intermediary Rules, 2011") which are
fotnied 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 madeD
under Section 69A read with Section 87(2)(2) of the Information
Technolog, Act 2000 siniloul puovicle \ Hhouetus sive pages Suds
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 24. 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
9™ JUNE, 2000 The Information Technology Act, 2000 (21 of 2000) is
notified in the official gazette and it comes into force.r@
25™ Aucusr,
2005
6”
DECEMBER,
2006
il
|
om
2006
™
SEPTEMBER,
2007
c
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
Pursuant to the suggestions of the Expert Committee on
Review of the IT Act 2000 the-tnformation Technology
(Amendment) Bill No. 96 of 2008 is introduced before the
LokSabha.
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.
The Parliamentary Standing Committee on Information
Technology of the 14"LokSabha submits a detailed report
on the Information Technology (Amendment) Bill No. 96 of
2006.f
information Technology (amendment) Bill No. 96-C of
The tt
22" 2008 is introduced in the LokSabha.
DECEMBER,
2011
23RD Information Technology (Amendment) Act, 2008 is passed
DecemBer, by the LokSabha.
2008
5™ FEBRUARY, The Information Technology (Amendment) Act, 2008 is
2009 notified and comes into effect. The Information
Technology (Amendment) Act, 2008
a. Inserts Section 668A.
b. Inserts Section 69A under which the Website
2009 are made.
Blocking —-Rules.
Section 79 under which the
c. Substitutes
es Rules, 2011 are made.
Intermediary Guidelin
‘The Information Te-hnology (Procedure and Safeguards
am
ocroser, for Blocking for Access of Information by Public) Rules.
2009-2009 (hereinafter referred to as the “Blocking Rules,
1 : :
1
eae7 FEBRUARY
1028"
FEBRUARY,
2011
G
2009") are notified under Section 69 read with Section
87(2)(2) 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.
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 28"February, 2011. The consultatiori
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.
Various responses are sent by Civil Society, Individuals
and Industry Associations to Respondent No. 2 which
object to the (Intermediaries guidelines) Draft Rules, 2014
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.11 APRIL
2011
41™ May,
2011
26" JUNE,
2012
+
TI
|
H
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.
Due to mass public outery 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
‘The National Crime Records Bureau, releases the Cyber
Crime statistics for the offences registered for the year
2011. The chapter rulating to, Gyber Crimes records an
alarming increase ir the registration of Cyber Crimes20™ Aygest.
T
20
NoveMmaeR,
2012
9.01.2013
I
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
The Central Government through a Press Release
acknowledges issuing four ‘Blocking orders dated,
18.08.2012, 49.08.2012, 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
‘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.
The Department of Electronics and Information
Technology issues an Advisory on the application of18.03.2013
>
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.
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 complaintigrievances 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
The_parliamentary committee on delegated legislation in
1 1
its 31% Report inter alia &xamines the Information
Technology (Intermediaries Guidelines) Rules, 2011 and
states at several instances thatthe rules are ultra vires
the principal legislation, i.e. Section 79 of the IT Act.2013 offfaros
|
Hh
19™ SEPT
2013
K
Various incidents involving the, yse 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.
Hence the present petition filed under article 32 of the
Constitution of IndiaIN 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 |,
Delhi-110094
eo}
»
B
..PETITIONER
Versus
UNION.OF INDIA
Through Secretary
Ministry of Home Affairs
North Block, Parliament House
New Delhi
1! ...Respondent No. 1
. MINISTRY _OF — COMMUNICATIONS = &
INFORMATIONTEGHNOLOGY,
Department of Telecommunications.
4110, Sanchar Bhawan, Ashoke Road, New
Delhi, Through its Secretary
...Respondent No. 2
MINISTRY OF LAW & JUSTICE .
Through its Secretary
4th Floor A Wing ShastriBhawan New Delhi 110001 ,India
...Respondent No. 3
STATE OF WEST BENGAL
Through its Chief Secretary,
Writers’ Buildings
Kolkata-700 001 ...Respondent No. 4oe
‘AWRIT PETITIONS [UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA 1
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:
4. 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
GGA 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 ¢.THE INFORMATION
TECHNOLOGY (INTERMEDIARIES GUIDELINES) RULES, 2011 (formulated
under Section 69A read with Section 87(2)(2) 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 imperiliing 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.
4A. 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
poy
awareness about civil liberties and hurhan 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 impgrtant 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, 2900 (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 by4
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 gommunication and storage of information to
faciitate electronic fing of documents with the Government
agencies.
5. 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 26th 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 See. 66A of the
Information Technology Act, 2000
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.
¢. Did not contain any provisions for the blocking of websites or
analogous provision to Sec. 69A5
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 qq - ISS)
6. 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
Ty extended to two years, the apres also being non-cognizable.
| | ». Itis pertinent to note that Sec. 68A was not inserted pursuant
if to any recommendation by the Expert Committee.
«. Aredratted 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).
4. There was no provision for the blocking of websites or a
provision similar to Section 694
{A true copy of the Information Technology (Amendment) Bill No. 96
of 2006,/é+12. 2006 is attached herein and is marked as
ANNEXURE - P/2(Pages |S¢- 251 )-oe
£
7. On being tabled before the Lok Sabha, the Information Technology
-— 4
(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.
4 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;
(i) 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
ieiB
a
(iii) specific legislative action was necessary rather than self
regulation by intermediaries.
. 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 2S2- 343).
\
. That pursuant to the Report of the Standing Committee on
2
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 —
Pra(pages 344- 33S
That the Information Technology (Amendment) Act, 2008 was
notified on Sth 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
10. That Section 66A of the IT Act deals with punishment for
|
+ | sending offensive messages through communication service, etc.
and reads as follows:
i r
“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, of iilwill, persistently makes by making use of such
computer resource or a communication device,
(0) 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
6 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
i
\
(1. The repeated use of the arbitrary, subjective and unclear
+ nature of the terminology used in sec. 66A by different governments—
9
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: ‘
1
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 Paighar,
Maharashtra for posting a “stalus message” or “post” on social
networking website Faceboot 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.
¢. Aseem Trivedi a cartoolist was arrested in Mumbai,
Maharashtra for posting carkons.on his website and on the
social networking website facebook
4, Ravi Srinivasan, a 46-year-de businessman in Puducherry,
was arrested for posting @ “tvert” on micro blogging website
Twitter criticizing the son of a yoni politician.
e. AFIR is fled against JagsishPet! in Thane, Maharashtra for
downloading the picture ofa gil from social networkingfo
website Facebook and sending it along with a birthday cake to
her.
True copies, of details of these instances have been collectively
1 annexed herein and aro marked as ANNEXURE - PI5
‘ | (COLLY)(Pages 286-\os ).
IN RE: SECTION 6GA OF THE IT ACT, 2000
12. 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 fram 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,
T to the police thereby seriously jeopardizing fundamental rights of
'
citizens to free speech and liberties. |
,
13. For instance, the absence of any definition or any explanation
as to the scope of the terms “grdssly offensive” or “menacing
character’ in Sec. 66A(a), results in making acts which were
innocent of any criminal intention, an offence under Sec. 66A leavingif
interpretation of the provisions to the whims and fancies of
prosecuting agencias.. The abounding vagueness of the terms
1
—-4
apart, the absence of limitations to the use of sec. 66A itself is
| against Articles 19 arid 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.
414. 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 uplcaded online, In as much as Sec. 664
lacks any coherence and stucture 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.
45, It is submitted that the lack of coherence to tackle any
particular offence is nost noticeable in Sec. 66A\(b), which contains
a list of grounds attacting the offenee. It is pertinent fo mention that
most of the phrases such as, “annoyance” or “inconvenience” are
vague, imprecise of 4yefinition and inchoate and do not contain any
ingredients whichcan be easily and uniformly applied. It is similarly
relevant to higlight that even in respect of phrases for which
analogous crimal offences exist, there is no reference made to
such distinct sections. For instance, when Sec. 66A(b), states
‘criminal intindiation” it does not make reference to Sec. 503 of theJL
Indian Penal Code, 1860 which containe the offence of criminal
intimidation. The abserice 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.
16. 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
—
1
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:T
. 66A—(a) Purported Imprisonment Lack of similarity
Same —or'‘term/fine or
Any similar words both
information appearing. in
that is: other
; legislations
Grossly Section 20(b) Imprisonment Section 20(b) _ only
offensive Indian Post for a term applies in one to one
Office Act, which may communications in which
1898 extend to one there are —_ personal
year or with a threats etc. made to the
fine or both recipient and not for
content which is posted
publicly.
‘ Moreover the present
punishment under
Section 66A is far greater
than that under Section
20(b) of the Indian Post
Office Act.
Menacing Section 503 Imprisonment Section 503 of the IPC
(criminal which may does not mention the
intimidation) extend to two term, “menacing”.
of the Indian years or with Moreover no legislative
Penal Code, fine or both. 1 guidance is present in
1860 " Section 66A whereby a
reference is made to the
offence under Section
' 503 of the IPC.
ie
(b)
* Information ‘
he knows to
be false but
for the
purpose of
causing:
annoyance Section 507 Imprisonment Section 507 of the Indian
\PC for a term Penal Code is an
which may aggravated offence[Criminal
intimidation
by an
anonymous
communicati
on]
“extend to two
years
Incorvenien Section 238 Ne _ specific
ce [Public
Nuisance]
penalty has
+ been
povided. In
case the
aggravated
and specified
classes of
public
nuisance are
not satisfied a
vesiduary
denalty of Rs.
200 fine is
mposed.
4
which takes from the
language of the offence
of criminal intimidation
under Section 503 of the
Indian Penal Code.
Here it is pertinent to
mention that Section 507
‘or 503 do not contain any
reference to the term
annoyance. They refer to
the causation of a threat.
Moreover the linkage of
section 507 to the term,
“annoyance” is a
complete _non-sequiturr
given that there is no
Fequirement of anonymity
for “annoyance” to be
invoked under Section
6A.
‘There is no linkage
between the — term
“inconvenience” and the
reference to Section 268
of the Indian Penal Code.
There is no mention or
reference to the term,
“inconvenience” in
section 268 of the Indian
Penal Code.
Section 268 of the Indian
Penal Code after only
states proximately, “a
common nuisance is not
excused on the ground
that it causes some
convenience or
advantage.” This term
clearly is carved as
limiting a defence of
“convenience” to the: 1S
offence of _. “public
nuiscane” and in no way
js containing an offence
of “inconvenience”.
Hence, no guidance can
be laid on it
Danger Section 268 ame as Where it is
above acknowledged that the
term, “danger” does find
mention under Section
268 of the Indian Penal
Code, it does as an
ingredient to an offence
of Public Nuisance as
; opposed to an offence by
itself. Hence, the
reference under Section
66A which is not a
cohesive section dealing
with a singular offence
and merely contains
distinct words, such as
| “danger” is not made out.
1
Obstruction Section 268 Same as Where it is
above acknowledged that the
term, “obstruction” does
find mention under
Section 268 of the Indian
Penal Code, it does as
an ingredient . to an
offence of Public
Obstruction as opposed
to an offence by itself.
Hence, the reference
under Section 66A which
is not a cohesive section
dealing with a singular
offence and merely
contains distinct. words,
such as “obstruction” is
not made out.
Insult Sections 504, Periods of Firstly each of the
509 & 295, imprisonment provisions mentioned ofInjury,
Criminal
intimidation
295A, 298
from 2 years
Section 503, Imprisonment
Explanation
which may
extent to two
years
Section 503. Imprisonment
IPC
which may
extend to two
‘years
Ie
the Indian Penal Code
contemplate ‘insult’ as
the ingredient of a
offence as opposed to be
an offence by itself.
For instance, Section 504
of the Indian Penal Code,
1860, ‘intentional insult
with intent to provoke
breach of the peace” and
Section 509 of the Indian
Penal Code, 1860, “word,
gesture or act intended to
insult the modesty of a
woman”.
Section 503 of the Indian
Penal Code, 1860 refers
to the offence of criminal
intimidation and has no
nexus with the term,
“injury” which appears in
isolation under Section
66A.
Moreover, the term
“injury” as it appears only
within the explanation
within the sentence that,
“a threat to injure the
reputation of | any
deceased person in
whom the person
threatened is interested,
is within this section.”
The term “injury” within
this explanation does not
in any way explain or
contain the offence of
“injury’.
Even though the Indian
Penal Code —_ within
Section 503 contains an
offence of criminal
intimidation no reference\F
is made to it.
enmity Section Imprisonment Firstly each of the
505(2) IPC, which may provisions mentioned of
295, 295A, extend from the Indian Penal Code
298 two to three contemplate “enmity” as
years. the ingredient of a
offence as opposed to be
an offence by itself.
For instance, Section
505(2) of the Indian
Penal Code, 1860, reads
as, “statements creating
or promoting — enmity,
] , hatred or il will between
classes”. Here “enmity” is
only an ingredient to an
offence as opposed to
i the offence itself.
Hatred or ill Section Imprisonment Firstly each of the
will 505(2)IPC_ which ~~ may provisions mentioned of
extend to two the Indian Penal Code
years contemplate “hatred or ill
will” as the ingredient of a
offence as opposed to be
an offence by itself.
For instance, Section
505(2) of the Indian
Penal Code, 1860, reads
as, “statements creating
or promoting enmity,
hatred or ill- will between
classes”. Here “hatred or
il will” is only an
ingredient to an offence
as opposed to the
offence itself.
17. An egregious instance of the use of Section 66A is the case
i against Prof. Ambikesh Mahapatra ahd Sh. Subrata Sengupta. Theeae,
18
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 fundamentai principles of criminal law.
only makes the burden on the accused harsher.'
18. That Prof Ambikesh Mahapatra and Mr. Subrata Sengupta- then
office bearer of the Housing Society- were taken to the police
station at 11pm on 12" 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 wag 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.
1 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 dopy of cartoon from Sonar Kella is annexed herein and is marked as
Anpexure-P':5 Cfages Yoo >
'19.
——}
Bac
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 164.2012 The WBHRC directed
investigation of the matter by the Commissioner of Police, Kolkata,
the Additional Commissioner of Policp, 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:
48. 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 @ Magistrate or without @ 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
put admitted that there is nothing known as “protective custody” in
law,
44. Protective custody by the police can be only resorted to in case
of a minor or @ Jady 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 mob20.
—
Z|
and a case under Section 344 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 kilometet away. On the other hand police
arrested those two elderly persons who were peacefully sitting
confined in the office of the Society.
45, At the time police arrested those two persons no FIR was lodged
against them and the subject cartoon, allegedly circulated which was
fied with the FIR was not even seen Py 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.
The Hon'ble WBHRC went on to explain the political and cultural
context to the cartoon circulated:
29, in this case, the cartoon is based on the story line in a feature
fim meant for children called “Sonar Kella” directed by Late Satyaiit
Ray. The film was very popular and enjoyed by children and the
adults alike
23, In the film a part of the story 1s that one Professor was pushed
down the mountain by the villain and when the professor was not
Visible, the villain told Mukul, the Ghild-hero in the film, that he had
vanished. Following that story sequence, here the cartoon depicts
that the Hon'ble Chief Minister ‘of West Bengal tells Mr. Mukul Roy,
the newly appointed Railway Minister that the previous Rallway
Minister had ‘vanished’ and Indian Railway is depicted as Sonar
Kella — the golden fort. This cartoon obviously referred to the recent
political events in the aftermath of removal of Mr. Dinesh Trivedi, the
previous Railway Minister *
24. No one can attribute even remotely any suggestion which is lewd
er indecent and slang in connection with the said film or even in
respect of the subject cartoon.”qe
a. 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, Resporident 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
50 till the present date
22, Subsequently, a charge sheet has been filed against Prof.
1
|
Manapatra and Mr. Sengupta on 19.07.2012 whereby the charges
under Sections 609/500/114 of the Indian Penal Code were been
dropped, charges under Section 66A(b) of the Information
Technology Act, 2000 and 66A(c) remain
23. _ 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. !
| 24 itis 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 of a pamphlet, may not invite any criminal charge
against the author under other laws, ven though it is prosecutable
uls 66A. . Such discrimination in application of @ penal provision
solely based on the medium of communication in the absence of any2
| reasonable differentia plainly infringes upon the right to equality
under Article 14 of the Constitution of India. i
25. 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.
26. That the ambiguity and vagueness of the terms mentioned in
the impugned section apart, the wording of sec. 66A results in
1 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 @ 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 proceadings 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,24
not possible for a person to follow the "law" when he/she does not
know what constitutés 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
epeak freely as guaranteed by the Constitution.
SECTION 69A OF THE INFORMATION TECHNOLOGY ACT, 2000
27. Section 694 of the IT Act reads as:
“g9-A. Power to issue directions for blocking for public access of any
‘eormation through any computer resouret (1) Where the Central
Government or any of its officers specially authorised by it In this
behalf is satisfied that it is necessary of expedient so to do, in the
interest of sovereignty and integrity of India, defence of India,
seourity of the State, friendly relations with foreign States or public
order or for preventing ipcitement to the commission of any
cognizable offence relating to above, it may subject to the provisions
Sf eub-section (2), for reasons t be recorded in writing, by order,
direct any agency of the Government oF intermediary to block for
‘access by the public or cause to ibe blocked for access by the public
any information generated, transmitfed, received, stored or hosted in
any computer resource.
a4,
(2) The procedure and safeguards subject to which such blocking for
Sccess by the public may be Carried out, shall be such as may be
prescribed.
{g) The intermediary, who fails to comply with the direction issued
under sub-section (A) shall be punished ‘with an imprisonment for a
term which may extend to seven years and shall also be liable to
fine.”
28. 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 under29.
25
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 shall
designate by notification in Official Gazette, 2° officer of the
Cenval Government not below the rank of @ Joint Secretary,
as the” Designated Officer’, for the purpose of issuing
direction for blocking for access by the public any information
generated, transmitted, received. stored or hosted in any
Sémputer resource under sub-section (2) of section 69-A of
the Act. .
4. Nodal Officer of organization.—Every ‘organization for the
purpose of these rules, shall designate on® of its officer as the
Nodal Officer and shall intimate the same to the Central
Government in the Department of Information Technology
under ‘the Ministry of Communications and Information
Technology, Government of Ingia and also publish the name
Of the said Nodal Officer on their website.
5. Direction by Designated Officer —The Designated Officer
may, on receipt of any request from the Nodal Officer of an
organization or a ‘competent Court, by order direct any Agency
ofthe Government or intermediary to block for access by the
public any information or part thereof generated, transmitted,
Putred, stored or hosted In any computer resoure for any of
the reasons specified in ‘sub-section (1) of section 69-A of the
Act.” ’
That the Rule 6 reads as follows:
“6. Forwarding of request by ‘organization.—(1) Any person
may send their complaint to the Nodal Officer of the
Toneemed organization for blocking of access bby the public
any information. generated, transmitted, received, stored or
hosted in any computer resource:
provided that any request, other than the One from the
Nasal Officer of the organisation, shall be sent with the, w
approval of the Chief Secretary of the concemed State or
Union territory to the Designated Officer:
Provided further that in case’a Union territory has no Chief
Sceretary, then, such request may be approved by the
‘Adviser to the Administrator of that Union territory.
(2) The organization shall examine the complaint received,
(aer sub-rule (1) to satisfy themselves about the need for
taking of action in relation to the reasons enumerated in
Sipeection (1) of section 69-A of the Act and after being
satisfied, it shall send the request through its Nodal Officer
te the Designated Officer in the format specified in the
Form appended to these rules.
(3) The Designated Officer shall not entertair. ay
Complaint or request for blocking of information directly
from any person
(4) The request shall be in writing on the letter head of the
respective organization, complete in all respects and may
be sent either by mail or by’ fax or by e-mail signed with
electronic signature of the Nodal Officer:
Provided that in case the request is sent by fax or by e-mall
Vihieh is not. signed with electronic signature, the Nodal
Offigar shall provide a signed copy of the request so as to
cach the Designated Officer within a period of three days
Of receipt of the request by such fax or e-mall
(5) On receipt, each request shall be assigned a number
alongwith the date and time of its receipt by the Designated
Officer and he shall acknowledge the receipt thereof to the
Nodal Officer within a period of twenty four hours of its
receipt.” +
30. That the Rules also contemplate @ 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:
g, Examination of request —(1) On recelpt of request
under rule 6, the Designated Officer shall make all
reasonable efforts to identify the person or intermediary
who has hosted the information or part thereof as well—-+
2+
fas the computer resource on which such information or
part thereof is being hosted and where he is able to
Identify such person or intermediary and the computer
eeource hdsting the information or part thereof which
have been requested to be blocked for public access:
he shall issue a notice by way of letters or fax or e-mail
signed with electronic signatures to such person or
intermediary in control of such computer resource to.
appear and submit their reply and clarifications, if any,
before the committee referred to.in rule 7, at a specified
Gate and time, which shall not be less than forty-eight
haure from the time of receipt of such notice by such
person or intermediary.
(2) In gase of non-appearance of such person of
intermediary, who has been served with the notice
igor subrule (1), before the committee on such
Specified date and time, the committee shall give
specific recommendation in writing with respect fo the
request received from the Nodal Officer, based on the
information available withthe committee.
(3) in case, such a person of intermediary, who has
been served with the notice under sub-rule (1), is 8
foreign entity or body corporate as identified by the
Designated Officer, notice shall be sent by way of letters
of fax or e-mail signed with electronic signatures to such
foreign entity or body corporate and any such foreign
entity or body corporate shall respond to such & notice
wuithin the time specified therein, failing which the
mittee shall give specific recommendation in writing
coimopect to the request received from the Nodal
Gficer based on the information available with the
committee.
(4) The committee referred to in rule 7 shall examine the
request and printed sample information and consider
whether the request is covered within the scope of sub-
section (1) of section 69-A of the Act and that it
justifiable to block such information or part thereof and
shall give specific recommendation in writing with
respect to the request received from the Nodal Officer.
(6) The designated Officer shall submit the
recommendation of the committee, in respect of the
recast for blocking of information alongwith the detals
sent by the Nodal Officer, to the Secretary in the
Hepartment. of Information Technology under te
Ministry of Communications and Information
Technology, Government of India (hereinafter referred
to as the “Secretary, Department of Information
Technology’).it}
a
28
(6) The Designated Officer, on approval of the request
by the Secretary, Department of _ Information
Technology, shall direct any agency of the Government
of the intermediary to block the offending information
generated, transmitted, received, stored or hosted in
their computer resource for public access within the
time limit specified in the direction:
Provided that in case the request of the Nodal Officer is
not approved by the Secretary, Department of
Information Technology, the Designated Officer shall
convey the same to suct'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 emergency
nature, for which no delay is acceptable, shall examine
the request and printed sample information and
consider whether the request is within the scope of sub-
section (1) of section 69-A of the Act and it is necessary
cor expedient and justifiable to block such information or
part thereof and submit the request with specific
recommendations in writing to Secretary, Department of
Information Technology.
(2) In a case of emergency nature, the Secretary,
Department of Information Technology may, if he is
satisfied that it is necessary or expedient and justifiable
for blocking for public access of any information or part
thereof .through any computer resource and after
recording reasons in writing, as an interim measure
issue such directions as he may consider necessary to
such identified or identifiable persons or intermediary in
control of such compiiter resource hosting such
information or part thereof without giving him an
opportunity of hearing.
(3) The Designated Officer, at the earliest but not later
than forty-eight hours of issue of direction under sub-
rule (2), shall bring the request before the committee
referred to in rule 7 for its consideration and
recommendation.
(4) On receipt of recommendations of committee,
Secretary, Department.of Information Technology, shall
pass the final order as regard to approval of such
fequest and in case the request for blocking is not
approved by the Secretary, Department of Information
Technology in his final order, ‘the interim direction
issued under sub-rule (2) shall be revoked and the
person or intermediary in control of such information7 So
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.
33. The procedure for the blocking with reference to requests
i 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 identity, “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 @
notice is issued to a bookshop which stocks the impugned book as
‘opposed to the author who has authored the book.
34. That even after the Blocking Order has been issued under
Rule 6 of the Blocking Rules, there is no legal provision for the
communication of the Order to the Author who is the primary
—
1
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 contentpo]
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
tules to file an appeal against such a blocking order.
1
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 absettce 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. 1
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 is3L
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 elswewhere. In Yildrim v Turkey [2012]
ECHR 2074, The 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 This is
the first decision by an international tribunal regarding the whole sale
blocking of internet content
37h That one of most important safeguards which are present in
the Blocking Rules, 2009 is the constitution of a “Review Committee"
or
which under Rule 14 is mandated tol 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 individual33
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.
38. 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 Gupia v President of India and Ors[1982] AIR (SC)
149 it oe 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 constitutionalaan
1 SY
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 RT! application
can partly circumvent rule 16.
39. Thatitis 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.|n this
context it is useful to refer to Para 43, General Comment No. 34 on
the ICCPR by the Human Rights Committee at its 102™ session at
Geneva, 11-29 July 2011, CCPR/C/GC/34
qT 1
| “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. Itis 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 without
interference.
2. Everyone shall have the right to freedom of expression; this right
shall include freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing or in
print, 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 this
article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only be
such 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 (order
public), or of public health or morals.
40. tis 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 in3S
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.
41, 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
42. That-the first document is a RTI response dated 10"June,
|. 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 io 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 itBr
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.
4, 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 10°June, 2011 is annexed
herein and is marked as Annexure - Pripages Yot-YI6 )-
43. That the second document which is relevant to the Blocking
Rules, 2009 is a news release by the Press Information Bureau
dated 20" August, 2012 released by the Ministry of Communications
and Information Technology which ncted 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 24" August, 2012 titled as, “After paralysis,
UPA-II develops Twitter block; blocks handles of journalists, right-
wing groups”.oan
The three Orders referred to above reveal that:
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.
. 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.
‘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.
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.
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 wheré 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 to39
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 anneked herein and are marked as Annexure ~ P/f
COLLY (Pages 413- 4yq ).
45. That the Petitioners submit that an empirical study published
1 on 9" August, 2012 by the OpenNet Initiative [a collaborative
1
‘ 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
ei 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 IPYo
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
a place. Similarly, during testing " 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 9" August,
2012 is annexed herein and is marked as Annexure ~ Pi@Pages- 456,
Yes)
46. 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
47. Section 79 provides for exemption from liability of
i Intermediary. Also the definition of 'Intermediary’, as per clause (w)
of sub-section (1) of Section 2 of the IT Act was amended. The
l} definition now reads as follows:|
48.
Uy
(w) ‘intermediary’, with respect to any particular
electronic records, means any person who on behaif of
another person receives, stores or transmits that record
or provides any service with respect to that record and
includes telecom service providers, network service
providers, internet service providers, web-hosting
service providers, search engines, online payment sites,
online-auction sites, online-market places and cyber.
cafes;
1
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 constrain's 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 dictatotial and authoritarian
regimes which closely imonitor 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 2yainst 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 quickYr
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
T generated.content also serves the function of a modern press.
1
bs That itis 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
16th January 2013 (dynamic changing Alexa rankings accessible at
http://www.alexa.com/topsites/countries/IN) is attached herein and is
marked as ANNEXURE — P/10(Pages 4 44 - 42) )-
A copy of the Quantcast top websites accessed in India also reveals
that most of the top websites ate 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:/Avww.quantcast.com/top-sites/IN)
accessed in India as on 1.15.2013 is attached herein and is marked
as ANNEXURE ~ P/11(Pages 432-476)60.
54.
4s
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/12(Pages 477-52.)
That on 7"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 28" 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.uy
il A copy of the (Intermediaries Guidelines) Draft Rules, 2011 is
attached herein and fs marked as ANNEXURE — P/13(Pages 522-525 )
52. That between 7" February and 28" 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/14(Colly)
(Pages 526- Guy ).
53. 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
Tetained 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| ' y ve
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 —
PIB(Pages GUS- 644)
54. That due to mass public outcry and media reports, a purported
clarification dated 11" 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 11" May, 2011 is attached
ii herein and is marked as ANNEXUREP/16(Pages 650).
55. 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.
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.; Ys
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).
4. 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-tule (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 — The
intermediary shall observe following due diligence while
discharging his duties, namely: —
(1) The intermediary shall publish the rules and regulations,
privacy policy and user agreement for access or usage of the
intermediary's computer resource by any person.
(2) Such rules and regulations, terms and conditions or user
agreement shall inform the users of computer resource not toUy
host, display, upload, modify, publish, transmit, update or
share any information that— *
(a) belongs to another person and to which the user does not
have any right to;
(b) is grossly harmful, harassing, blasphemous, defamatory,
‘obscene, pomographic, 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;
(c) harm minors in any way;
(d) infringes any patent, trademark, copyright or other
proprietary rights;
(e) violates any law for the time being in force;
(f) deceives or misleads the addressee about the origin of
such messages or communicates any information which is
grossly offensive or menacing in nature:
(g) impersonate another person;
(h) contains software viruses or any other computer code, files
or programs designed to interrupt, destroy or limit the
functionality of any computer resource;
(i) threatens the unity, integrity, defence, security or
sovereignty of India, friendly relations with foreign states, or
public order or causes incitement to the commission of any
cognisable offence or prevents investigation of any offence or
is insulting any’ other nation.
(3) The intermediary shall not knowingly host or publish any
information or shali 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):
provided that the following actions by an intermediary shall not
amount to hosting, publishing, editing or storing of any such
information as specified in sub-rule: (2) —
(a) temporary or transient or intermediate storage of
information automatically within the computer resource as
an intrinsic feature of such computer resource, involving no
exercise of any human editorial control, for onward
transmission or communication to another computer
resource;
(b) removal of access to any information, data or
communication link by an intermediary after such48
information, data or communication link comes to the
actual knowledge of a person authorised by the
intermediary pursuant to any order or direction as per the
provisions of the Act;
(4) 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). Further the intermediary shall preserve such information
and associated records for at least ninety days for
investigation purposes,
(5) The Intermediary shall inform its 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 lights of the users to the
computer resource of Interm@diary and remove noncompliant
information. :
(6) The intermediary shall strictly follow the provisions of the
Act ot any other laws for the time being in force.
(7) When required by lawful order, the intermediary shall
provide information or any such assistance to Government
Agencies who are lawfully authorised for investigative,
protective, cyber security activity. 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.
(8) The intermediary shall take all reasonable measures to
secure its computer resource and information contained
therein following the reasonable security practices and
procedures as prescribed in the Information Technology
(Reasonable security practices and procedures and sensitive
personal Information) Rules, 2011
(8) The intermediary shall report cyber security incidents and
also share cyber security incidents related information with the
Indian Computer Emergency Response Team.
(10) The intermediary shall not knowingly deploy or install or
modify the technical configuration of computer resource or
become party to any such act which may change or has the49
Potential to change the normal course of operation of the
computer resource than what it is supposed to "perform
thereby circumventing any law for the time being in force:
Provided that the intermediary may develop, produce,
distribute or employ technological means for the sole purpose:
Of performing the acts of securing the computer resource and
information contained therein.
(11) The intermediary shall publish on its website the name of
the Grievance Officer and his contact details as well as
mechanism-by which users or any victim who suffers as a
result of access or usage of computer resource by any person
in violation of rule 3 can notify their complaints against such
access oF usage of computer resource of the intermediary or
other matters pertaining to the computer resources made
available by it. The Grievanée Officer shall redress. the
complaints within one month from the date of receipt of
complaint.
'
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 beSO
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.
57. 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 a only sue for defamation but
intermediary would be. made liable even if the remark was merely
“disparaging’.
58. 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
‘ps. In Excel Wear vs Union Of Ingia &Ors, AIR 1979 SC 25 this
| Hon'ble Court held that Section 25(0) and 25R of the IndustrialS/
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
af proper legal recourses afforded to peysons whose content has been
wrongfully taken down. Also there is no procedure to prefer an
) appeal against the Executive Order
60. 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 ah 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,Sie
whieh is again against the language and intent of Section 79 of the
IT Act.
61. 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
Sxpression. It is submitted that censorship of speech and expression
'S 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
‘easonable restrictions on the right to speech and expression,
62, Comparing the provisions in analagous 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
T content: 1
“ARTICLE 12
"Mere conduit"
1, Where an information Society service is provided that
consists of the transmission in a communication
network of information provided by a recipient of the1
|
63,
So
service, or the provision of access to a communication
network, Member States shall ensure that the service
Provider is not liable for the information transmitted, on
condition that the provider:
(a) does not initiate the transmission;
1
(b) does not select the receiver of the transmission; and ,
(c) does not select or madify the information contained
in the transmission.
2, The acts of transmission and of provision of access
referred to in paragraph 1 include the automatic,
intermediate and transient storage of the information
transmitted in so far as this takes place for the sole
Purpose of carrying out the transmission in the
communication network, and provided that the
information is not stored for any period longer than is
reasonably necessary for the transmission.
3. This Article shall not affect the possibility for a court
or administrative authority, in accordance with Member
States’ legal systems, of requiring the service provider
to terminate or prevent an infringement.”
ARTICLE 15
No general obligation to monitor
1. Member States shall not impose a general obligation on
providers, when providing the services covered by Articles 12,
13 and 14, to monitor the information which they transmit or
store, nor a general obligation actively to seek facts or
circumstances indicating illegal activity.
2, Member States may establish obligations for information
society service providers promptly to inform the competent
Public authorities of alleged illegal activities undertaken or
information provided by recipients of their service or
obligations to communicate to the competent authorities, at
their request,” information !enabling the identification’ of
recipients of their service with whom they have storage
agreements.”
It is submitted that the Intermediaries Rules, 2011 contain
apparent contradictions and inconsistencies which create ambiguity
and may lead to overboard application:4
SY
3. 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,
», 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.’
64. 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.
65. 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“A
le
s
§
£
3.
gz
a
ee
g
a
Q
o
g
3
8
g
2
a
e
zg,
g
As The said definition of “cyber Security incident” is Vague and all
Sncompassing and is liable to muse and thus has an adverse
ffect on privacy of citizens,
I 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/17(Pages 651-682),
67. he analogous takedown mechanisms which already exist
nder law re omponents of natural justi feguards
\der law recognize that components of natural justice safeguar
uw
‘i ide aware of
termediaries are mac
wnt even when int
should be presetCopyright Rules, 2012 which state that though an intermediary is—
1
st
obligated to take down content however the take down complaint
'
has to be confirmed with court order within 21 days of the complaint.
88. Its 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)(8). 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
Golly
annexed herein and marked as Annexure ~ P/18(Pages C83-728).
69, ‘The exemption from liability based on inherent Passivity of the
~~ intermediary under Section 79, IT Act, 2000, is based on the EU
' Directive 2000/81 (E-Commerce Dirkctive). 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.
70. 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.oe
71. 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
72, That it is pertinent to note that the intermediary cannot be
deemed to be capatile of determining the illegality of the material
This is because legal knowledge is needed to interpret statutes and
ules 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 theit own
discovery, especially when such information contains exercises of
Public expression by the citizenry.
73. The rules thus suffer from illegality and are patently unfair as
they do not offer any guidelines to ensure legitimacy of complaint
(@.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 asf
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 t6 block or remove the
content as an easier alternative to avoiding controversy, prosecution
and time and resource consuming legal proceedings.
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.75, 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 has.
been notified of the presence of illegal content to remove this
content from its server, whether the content is ultimately illegal
or not. This results in private censorship. *
-"What Gan Be Done Against Cyber Hate Freedom Of
Speech Versus Hate Speech In The Council Of
Europe” Isablelle Rorive, Cardozo Journal of
International and Comparative Law, Volume 17 No.3:
76. __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
fl
Couneil of Europe which explained that:
“Freedom of expression, information and communication
should be respected in a digital as well as in a non-digital
environment, and should not be subject to restrictions other
than those provided for in Article 10 of the ECHR, simply
because communication is carried in digital form. Member
states should maintain and enhance legal and practical
measures to prevent state and private censorship”.
77. 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
|60
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 statéments 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
i country indicate to the intermediaty 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 a collectively
annexed herein and are marked as ANNEXURE — Prileages 72-730.)
78. 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 complaintigrievances’ 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
—=
4)
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 Technoldgy 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 publishad 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.
79. The Parliamentary Committee on Delegated Legislation in its
31% 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;
(i) The Information Technology (Intermediaries Guidelines) Rules,
2011; (ii) 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
tules 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 to
remove ambiguity/misgivings in the minds of the people,
the definition of those terms used in different laws should62
be incorporated at one place in the aforesaid rules for
Convenience of reference by the intermediaries and
general public. In regard to those terms which are not
defined in any other statute, these should be defined and
incorporated in-the rules to ensure that no new category of
crimes or offences is created in the process of delegated
legislation.”
»b. Rule 3(4) : ‘The Committee feels that there is need for
clarity on the aforesaid contradictions and if need be, the
Tr Position may be clarified iq the rules particularly on the
process for take down of content and there should be
Safeguards to protect against any abuse during such
| process”
80. _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.as
81. 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
7} remain silent. For example, a speaker may be deterred by:
1 Me
a. the risk of wrongful criminal conviction and sanction;
». 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.
2, 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 10" August, 2011 that,——-+
4,
83.
64
“by vastly expanding the capacity of individuals to enjoy their right to
freedom of opinion and expression, which is an ‘enabler’ of other
human rights, the Intemet boosts economic, social and political
development, and contributes to the progress of humankind as a
whole,”
H
It was also stated in the above referred report that:
“(a) Any restriction must be provided by law, which must
be formulated with sufficient precision to enable an
individual to regulate his or her conduct accordingly and
must 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 the
rights or reputation of others; or (ii) the protection of
national security or of public order, or of public health or
morals;
(c) Any restriction must be proven as necessary and
proportionate, or the least restrictive means to achieve
one 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 10August, 2011 is
annexed herein and marked as Annexure ~ P/20(Pages 7.3)- -5Y )
That therefore the constitutidnality of the impugned sections
and rules is under challenge ‘on several grounds. The first would be
cn 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.6e
GROUNDS
To
Information ‘Technology Act, 2000,. the Information Technology
The Petitioners seek to challenge, Section 66A of the
(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
FOR THAT as a criminal, congnizable 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.
5. 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
fpaconeble restrictions imposed under Article 19 (2). The said clause is
/ery widely worded and,penalizes sendirig information which is “grossly
pffensive’ 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 68A. While these sub
Clauses require the offender to possess the ‘knowledge’ of crime being
Committed, the broad terms used under the impugned Section sweept 66
. 1
r Person under its ambit and is therefore open to arbitrary
pplication. Further, Clause (a) of Section 66A uses expressions such
i
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 664 has been introduced,
which is totally impermissible, It is also violation of Article 19(1) of the
Constitution of India anq is beyond the reasonable restrictions imposed
under 19 (2). The said clause has three ingredients :
|) knowledge that the information is-false
ii) intent to cause annoyance, inconvenience etc
ill) persistently sending by a computer resource or communication
device.
As such clause (b) prescribes penalties for offences such as
sn
‘annoyance’, ‘criminal intimidatior!, ‘insu’ and promoting ‘hatred’
oF ‘ll 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. Gy
terms “insult” and “annoyance” and open to subjective
interpretation, misuse and confusion is widespread. i
D. FOR THAT clause (c) of Section 68A 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.
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 the68
Telecom Commercial Communications Customer Preference
Regulations, 2010.
FOR THAT the provisions of Section 66A are contrary to Article
44 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.
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 intemet 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 664
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.fy
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 intemet. It is respectully
submitted that the principles to strike down such laws in the US
are applicable in Indian context and under Indian laws also.
FOR THAT the Union of India has drawn false equivalence
between the terms of Section 6€A, 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.30
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 in Terms referenced in Points of distinction
legislation Section 66A
United Improper use of public 1, The leading case with
Kingdom _ electronic respect to Section 127 of
The communications the British
Communicati network Communication Act, 2003
‘on Act, 2003 (1)A person is guilty of is the case of Paul
Section 127 an offence if he— Chambers v. Director of
(a)sends by means of a Public Prosecutions
+ public electronic [2012] EWH2 2157 in
| communications 1 which the prosecution of a
network a message or “tweet” came under heavy
other matter that is criticism. In any case the .
grossly offensive or of constitutionality of Section
' an indecent, obscene or 127 was not challenged
menacing character; or as the United Kingdom
(b) causes any such does not have a formal
message gf matter to be and written constitution,
so sent. 2. Due to the widespread
(2)A person is guilty of condemnation caused
an offence if, for the due to the case, the
purpose of causing Director of Public
annoyance, Prosecutions first
inconvenience or published the, “Interim
needless anxiety to guidelines on prosecuting
another, he— cases involving
(a)sends by means of a communications sent via
public electronic social media” on 19
communications December 2012. These
network, a message guidelines tremendously
that he knows to be watered down and
false, provided prosecution
(bjcauses such a guidance — for _—the
message to be sent; or application of Section 127
(c)persistently makes to internet content. These
use of. a public guidelines expressly
electronic fecognised the chilling
communications effects of mere
network prosecutions under
(3)A person guilty of an Section 127 and noted
offence under this that, “There is a high
section shall be liable, threshold that must behee States
of America
Telecommuni
cations Act,
1996
Section 502
included
provisions of
the
Communicati
ons Decency
Act of 1996
(to be codified
at 47 U.S.C
Section
223(a) to (h)
‘on summary conviction,
to imprisonment for a
term not exceeding six
months or to a fine not
exceeding level 5 on the
standard scale, or to
both.
(4)Subsections (1) and
(2) do not apply to
anything- done in. the
course of providing a
programme _ service
(within the meaning of
the Broadcasting Act
1990 (c. 42)).
47 U.S.C. 233
(a) Prohibited acts
generally
Whoever—
(1) in interstate or
foreign
communications—
(A) by means of a
telecommunications
device knowingly—
(i) makes, creates, or
solicits, and
(i) initiates the
transmission of,
any comment, request,
suggestion, proposal,
image, or other
communication which is
obscene or __ child
pornography, with intent
to abuse, threaten, or
harass another person;
(B) by means of a
telecommunications
device knowingly—
(i) makes, creates, or
solicits, and
(ii)
transmission of,
any comment, request,
suggestion, proposal,
image, or _ other,
the
nie
met before criminal
proceedings are brought
and in many cases a
prosecution is unlikely to
be required in the public
interest.”
3. Further, the Director of
Public Prosecutions has
issued, “Guidelines on
prosecuting cases
involving communications
sent via social media” on
20" June, 2013 on similar
lines recognising the
chilling effect on free
speech calling on
rosecutors to exercise
considerable caution.
1. The provisions of the
Telecommunications Act,
1996 which have been
cited have been severely
curtailed by the ruling of
the United States
Supreme Court in the
case of Reno v. American
Civil Liberties Union (96-
511) 524 U.S. 844 (1997).
The Respondent, UO! is
relying upon _—the
provisions which have
been amended in 2003
following this decision, the
legislative history of which
is set out below.
2. In the above cited
case, the United States
Supreme Court confirmed
an injunction passed by
the a three judge District
Court on 223(a)(1)(B)'s
prohibitions insofar as
they relate to "indecent"
communications, but
expressly preserves the
Government's right to
investigate and prosecute
the obscenity or child
pornography —_ activities
prohibited therein. Afterev
communication which is this decision, _alll
obscene or child references to “indecent
pornography, knowing transmission" provision
that the recipient of the and the "patently
communication is under offensive display" were
18 years of age, amended to — “child
regardless of whether pornorgraphy”
the maker of such 3. It is also pertinent to
communication placed examine that _—the
the call or initiated the provisions under Section
communication; 223(a)(1)(A) do — not
(2) knowingly permits merely criminalise speech
any telecommunications which is “abusive”,
facility under his control “threatening” or
to be used for any! “harassing” but
activity prohibited by criminalise it when, there
paragraph (1) with the is communication which
intent that it be used for already is obscene or
such activity, shall be contains child
fined under title 18 or pornography. Here, the
imprisoned not more existence of child
than two years, or both. pornography or obscenity
is relevant for constitution
. an offence as opposed to
mere abuse, threats, or
harassment.
FOR THAT even the ingredients for the offences contained
under Section 68A 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,
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 thephrases 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
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.
FOR THAT even for phrases contained under Sec. 68A 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.
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 and4
1
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 wil” 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.
FOR THAT Section 66A lacks rational nexus with the purpose
which is sought fo 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 Agt, contemplates a punishment for a period of
imprisonment which extends to three years. Hence, the same
speech can lead to offences inaee Section 68A 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.qe
FOR THAT Section 66A is attracted solely on online speech and
no such analogs umbrella provisions exist for speech whichiis
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
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.
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 thé 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 ineat
a
iad
a complete violation of natural justice and is contrary to articles
14, 19 and 21 of the constitution.
FOR THAT under Rule 6 of the Blocking Rules, 2008, there is no
legal provision for the communication of the Blocking Order to
the Author who is the primary affected party.
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.
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).T
'
: 2 Pe
'
FOR THAT Rule 16. of the Blocking Ruies, 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 the7
power to confiscate a publication uhder 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
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.77
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:
's grossly harmful, harassing, blasphemous defamatory,
obscene, pornographic, paedophilic, libellous, invasive of
another's Privacy, hateful, or racially, ethnically objectionable,
Gisparaging, 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
‘e citizens and are unconstitutional inasmuch as Sub-rule (4) of
tule 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 orat
Ga,
op.
go
owner of such information to disable such information that is in
contravention of sub-rule (2).
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.
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 freé 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 IndiaGG.
4
6c
guarantees all citizens the right to freedom of speech and
expression,
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 (UOl) and Ors., AIR
1958 SC 578 that if any limitation on the exercise of the
fundamental right under Art. 19(4)(a) does net fall within the four
comers 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. Itis
I
submitted that in judging whether a statute is constitutional the—
z
z
§3
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 49(4) of the Constitution of India.
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.
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 fundamentalKK.
vy
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.
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 inthe Act. The action of the Respondent No. 1 in notifying the
Intermediaries Rules, 2011 rules is highly unreasonable and
arbitrary.
1
FOR THAT Sub-ule (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 withinue.
85
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 pone 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
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. t
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 provideNN.
00.
ew
information or any such assistance to Government Agencies who
are lawfully authorised for investigative, protective, cyber security
activity. The requirement for Idwful 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.
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
submitied that such this cone for invasion of privacy exists
independently of any procedural safeguards and is contrary to
Articles 14, 19 and 21.
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—
as
PP.
source of power to issue the Intermediaries Rules, 2011 from the
amo
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
“$.79 (2) (c) - ...the intermediary observes due diligence
while discharging his duties under this Act and also observes
such other guidelines as the Central Government may
prescribe in this behalf.”
"$.87 (2) (zg) - the guidelines to be observed by the
intermediaries 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
1
parent provision.
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 listingaa,
1 68
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,
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 theRR.
87
Information technology Act, 2000 and are liable to be struck
down. i
FOR THAT the impuned 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 fdr 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 (PUBL) Vs. Union of India (UO) and Anr., (1987)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.ss.
Go
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.
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
settion 96 of the Code of Criminal Procedure, 1973 is may be
exercised when, (a) the publication! of which is punishable under
section 124A or section 183A or section 1538 or section 282 or
section 293 or section 295A of the Indian Penal Code (45 of
1960); (b) by an order of the State Government may, by
notification, state the grounds of its opinion for the confiscation.
Seetion 96 of the Code of Criminal Procedure, 1973 further
provides a statutory right of Appeal to the State High Court
impugning the ores 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 fouchstones-of reasonable restrictionsi)
‘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. '
T
nt CONSTITUTIONALITY OF THE IMPUGNED SECTION AND RULES
'
(ON GROUNDS OF EXCESSIVE VAGUENESS
\W. FOR THAT it was held in the case cf 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 take preventive
action against the citizens it is essential that it should expressly make it a
part of the duty of the said authorities to satisfy themselves about the
existence of what the statute regards as conditions precedent to the
exercise of the said authority. If the statute is silent in respect of one of
such conditions precedent it undoubtedly constitutes a serious infirmity
which would inevitably take it out of the provisions of Art. 19(5). The result
of this infirmity is that it has left to the unguided and unfettered discretion of
the authority concerned to,treat any citizen as a goonda. In other words,
the restrictions which it allows to be imposed on the exercise of the
fundamental right of a citizen guaranteed by Art. 19(1)(d) and (e) must in
the circumstances be held to be unreasonable"
WW. FOR THAT in the matter of K.A. Abbas v Union of India AIR 1971 SC
481 it was held that:lia
“It cannot be said as an absolute principle that no law will be
considered bad for sheer vagueness. The real rule is that if a
law is vague or appears to be so, the court must try ito
construe it, as far as may be, and language permitting, the
construction sought to be placed on it, must be in accordance
with the intention of the legislature. Thus if the law is open to
diverse construction, that construction which accords best with
the intention of the legislature and advances the purpose of
legislation, is to be preferred. Where however the law admits
of no such construction and the persons applying it are in a
boundless sea of uncertainty and the law prima facie takes
away a guaranteed freedom, the law must be held to offend
the Constitution, This is not application of the doctrine of due
process. The invalidity arises from the probability of the
misuse of the law to the detriment of the individual.’ “A law
which affects fundamental rights and is so vague that the
persons applying it are in a sea of uncertainty may be
declared unconstitutional and void”
T
be 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 an
enactment is void for vagueness if its prohibitions are not
clearly defined” at 130: “It is the basic principle of legal
jurisprudence that an enactment is void for vagueness if its
prohibitions are not clearly defined” “Laws should give the
person of ordinary intelligence a reasonable opportunity to
know what is prohibited.” “Vague laws may trap the innocent
by not providing fair warning” “Impermissibly delegates basic
policy matters to policemen and also judges with the attendant
dangers of arbitrary and discriminatory applicatio
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 person
of ordinary intelligence, a reasonable opportunity to know what
is permitted so that he may act according to law. Vague laws
may lay a trap to the innocent by not providing fair warning.”
22. 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
wrafess, violating due process. In Smith v Gougen 415 U.S. 566 (1974),
'G3
the court held that the term “treats contemptuously did not provide a
‘readily ascertainable standard of guilf” 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
corhmonly recognized as reprehensible, but also others which it is
unrpasonable 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”.
CC. FOR THAT In Ashcroft v American Civil Liberties Union 535 U.S.
1
Pp (2002) Justice Stevens at 674:
'if
“Criminal prosecutions are, in my view, an inappropriate
means 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 identify
criminal 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 must
] be sufficiently explicit to inform those who are subject to
it what conduct on theit part will render them liable to its
| penalties... and a statute which either forbids or requires
the doing of an act in terms so vague violates the first
essential of due process”
EEE, FOR THAT in Papchristou v Jacksonville 405 U.S. 186 (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 of
common intelligence cannot be required to guess at the
meaning of the enactment.”
86. | The Petitioners submit that they haye not filed any other petition
larising out of the same cause of action or facts before this Hon'ble
{Court or any other court in the country87.
95°
The Annexures P-1 to P-18 attached herewith are true copies of their
respective originals.
PRAYER
In the circumstancés, 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:-
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;
Direct the Respondent No. 2 #r) grant notice and hearing to the
author/owner of uplaaded content under Rules 5, 8(1) and 11 of
the Information Technology (Procedure and Safeguards. for
Blocking for Access of Information by Public) Rules, 2008 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;
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;
Issue a writ of Mandamus or any other writ or direction and
declare that any person will have locus standi to challenge anyorder 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;
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 ;
vi 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 IN
DUTY BOUND SHALL EVER PRAY.
Drawn by:
Karuna Nundy, Advocate
Apar Gupta, Advocate
Filed by
PUKHRAMBAM RAMESH KUMAR
Advocate on record for the petitioner
Dated: 4\\e WS
to Laspordent Nos YD. .a+
IN THE SUPREME COURT OF INDIA.
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL) NO. OF 2013
IN THE MATTER OF:
People's Union of Civil Liberties «Petitioner
Versus
Union of India & Ors. ...Respondents
AFFIDAVIT
|, Suresh V S/o Late K.S. Venaanecan aged about 55 years,
residing at 458, 8" South Cross Street, Kapaleeshwarar Nagar,
Neelankarai Chennai 600115 do hereby solemnly state and affirm as
under:
1.1 am the National General Secretary of the Petitioner
organization, duly authorized to represent the same in the
aforesaid matter and as such | am fully competent to swear this
fidavit. !
i \
2. | have read and understood the contents of the synopsis and
list of dates at pages B to X. and the contents of the Writ
Petition in paras No. 1 to -84- at pages 1 tog& and Cri. M.Ps. |
say that the contents thereof are true and correct to the best of
my knowledge and belief, Q VA93
3. That the annexures are true and correct copies of their
V/é
paper
Verified on this 37" day of October, 2013 at that the
pective originals. 1
VERIFICATION:
contents of para 1 to 3 the above affidavit are true and correct to the
best of my knowledge and nothing material has been concealed
therefrom.
a WV
\
DERQNENT
X oL, jo} )%
N. BEULAH JOHNSELVARAJ, I So | L
ADVOCATE & NOTARY PUBLIC
No. 26, PLOT No. 153, IV MAIN ROAD,
‘THIRUVALLUVAR NAGAR, CHENNAI-600 118,on the of the 14th Lok Sabha on the Information Technology
6. ANNEXURE P-3: ‘
Report of the Standing Committee on Information Technology as 2. 3h3
(Amendment) Bill No, 96 of 2006 dated 7.09.2007 t
7, ANNEXURE P-4: Buy