Whether the Section 67A, 69A and 69B of the Information Technology Act,

2000; and allied provisions of IPC (Section 340) & Indecent Representation
of Women (Prohibition) Act, 1986 (Section 3 and 4) constitutional?
Section 67A of the IT Act is not constitutional.
Section 67A of the Information Technology Act 2000(as amended) states “whoever publishes
or transmits or causes to be published or transmitted in the electronic form any material
which contains sexually explicit act or conduct shall be punished on first conviction with
imprisonment of either description for a term which may extend to five years and with fine
which may extend to ten lakh rupees and in the event of second or subsequent conviction
with imprisonment of either description for a term which may extend to seven years and also
with fine which may extend to ten lakh rupees.”
The section does not distinguish between consensually uploaded sexual expression and non-
consensual sexual material. The section provides an exception when the publication can be
‘justified as being for the public good’- a phrase that is undefined.
Due to the vagueness of the section, it has been misused in several instances, including for
booking cases of defamation by a politician, for sharing pictures of him on a yacht. The
Oshiwara Police in Mumbai against one Ajay Hatewar for offences of defamation and under
Section 67A IT Act for allegedly defaming Maharashtra Chief Minister Devendra Fadnavis.
The news reports indicate that the “dastardly” act appears to be the posting of an old picture
of the CM and his family enjoying their vacation on a yacht, with intent to defame him by
claiming that the picture was taken during the CM’s recent visit to USA.1
This case highlights the police’s abject ignorance with respect to the provisions of the IT Act
and their servility in registering a case merely because it pertains to a political bigwig. The
very same Maharashtra police would perhaps not even entertain a genuine grievance under
the very same Act even if it pertained to offences against women.

Section 69A of IT Act is not constitutional.

1
Nappinai, S (2015). A Gross Misuse of the IT Act by Mumbai Police. The Wire. July 14 Available
at:http://thewire.in/6390/mumbai-polices-gross-misuse-of-the-it-act/

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Section 69A of the I.T. Act 2000 states that “Power to issue directions for blocking for public
access of any information through any computer resource. -
(1) Where the Central Government or any of its officer specially authorised by it in this
behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and
integrity of India, defence of India, security of the State, friendly relations with foreign States
or public order or for preventing incitement to the commission of any cognizable offence
relating to above, it may subject to the provisions of sub-section (2) for reasons to be
recorded in writing, by order, direct any agency of the Government or intermediary to block
for access by the public or cause to be blocked for access by the public any information
generated, transmitted, received, stored or hosted in any computer resource.

(2) The procedure and safeguards subject to which such blocking for access by the public
may be carried out, shall be such as may be prescribed.

(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall
be punished with an imprisonment for a term which may extend to seven years and shall also
be liable to fine.”

Section 69A does not provide any effective remedies of redressal for the legal
entities/members of the public whose information, generated, transmitted, received, stored or
hosted on any computer resource, is blocked for access under Section 69A nor any provisions
for unblocking them. The process of blocking is entirely secret, and fails to meet
constitutional safeguards of natural justice. There is a complete departure from the principles
of natural justice as the blocking direction follows immediately upon the subjective
satisfaction of the officer without any notice or advertence to the author/up loader of the
content. “The formula of subjective satisfaction of the Government or of its officers, with an
Advisory Board thrown in to review the materials on which the Government seeks to
override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very
exceptional circumstances and within the narrowest limits, and cannot receive judicial
approval as a general patters of reasonable restriction on fundamentals rights authorized
officer without an objective standard.”2
The lack of transparency is a significant concern under Section 69A. The implementation of
the blocks involves a host of procedural improprieties, the lack of specific notice (of the

2
State of Madras v. V.G.Row, 1952 SCR 597
blocking, with reasons) to the actual authors of the offending content, and of a right to reply
is especially problematic. Even if, the measure is ostensibly an emergency response, the
notice, and opportunity for a hearing should at least be accorded ex post. There is a real lack
of accountability and of a right to remedies in the process. Also, in the case at hand the block
on the website covers content far in excess of the content inciting violence or hatred or
disrupting public order.
The Government Order does not appear to specify the duration for which the blocking will
extend, leaving open the theoretical possibility of an indefinite blocking of the access to the
website. This action of the government is a clear indication of the government’s intention of
making the channels of communication and information inaccessible to the public. There is a
violation of Fundamental Rights of both Equality before the law, and of Freedom of Speech
and Expression, through the effect of arbitrary laws. When there is a restriction on
Fundamental Rights, a Government sanction should be justified and clearly reasoned.
Laws must be expressed with such clarity and certainty as to give reasonably precise and
adequate guidance to those who want to be law abiding which is not the case with section
69A.

Section 69B of IT Act is unconstitutional.

Section 69B of the Information Technology Act states that “Power to authorise to monitor
and collect traffic data or information through any computer resource for cyber security.
(1) The Central Government may, to enhance cyber security and for identification, analysis
and prevention of intrusion or spread of computer contaminant in the country, by notification
in the Official Gazette, authorise any agency of the Government to monitor and collect traffic
data or information generated, transmitted, received or stored in any computer resource.

(2) The intermediary or any person in-charge of the computer resource shall, when called
upon by the agency which has been authorised under sub-section (1), provide technical
assistance and extend all facilities to such agency to enable online access or to secure and
provide online access to the computer resource generating, transmitting, receiving or storing
such traffic data or information.

(3) The procedure and safeguards for monitoring and collecting traffic data or information,
shall be such as may be prescribed.
(4) Any intermediary who intentionally or knowingly contravenes the provisions of sub-
section (2) shall be punished with an imprisonment for a term which may extend to three
years and shall also be liable to fine.

Section 69B of the IT Act have vested state functionaries with the powers to monitor or
collect traffic data or information generated, transmitted, received or stored in any computer
resource. Before the amendment act of 2008 there was a vacuum in the Indian law where
interception and monitoring in relation to internet communication was carried out under
general provisions of Indian telegraph act 1885.
Section 69B clearly violates fundamental right of privacy which is granted under article 21 of
the Indian constitution. The internet as interactive medium provides persons with range of
applications suited to cater to every information need. A person accessing the internet often
does so within the privacy of his own home and expects a reasonable level of privacy. A
person may divulge more information to a computer than to another person. Hence internet
communications are inherently intimate and concern the core of the privacy of the person.
Hence monitoring or collecting the traffic data stored in the computer of an individual harms
his right to privacy.
A quick overview demonstrates that 69B provides for adequate safeguards. But even with
these safeguards and procedure, the protection of privacy rights is inadequate in view of the
inherent lack of incentive to observe procedure and the nature of inherent communication.
The section’s objectives are essentially better internet management with the specific mandate
of “enhancing cyber security and for identification, analysis and prevention of intrusion or
spread of computer contaminant.” Towards this goal the section allows for issuing directions
to “monitor and collect traffic data or information generated, transmitted, received or stored
in any computer resource.”A review of the regulations formed under the section makes it
clear that the harms which will be incurred are in the nature of information processing, such
as aggregation and identification.
The section provides similar safeguards as found in section 69, but the conditions for exercise
of the power are entirely different. Due to this, the reasons which have to be recorded are not
on the high thresholds which are set under section 693.These are the reasons which have been

3
Rule 3(2), Information Technology (Procedure and Safeguards for Monitoring and Collecting Traffic Data or
Information) Rules, 2009 (contains the different types of situations which can threaten cyber security).
enunciated under the PUCL case. Hence, there lies an argument against the constitutionality
of this section.
There is a violation of section 340 of Indian Penal Code.

Section 340 of the Indian Penal Code states that “Whoever wrongfully restrains any person in
such a manner as to prevent that person from proceeding beyond certain circumscribing
limits, is said “wrongfully to confine” that person.” As stated in the facts at night some of the
females employees of the Features Co. who were seen going to a pub were attacked. The
employees were wrongfully restrained in a warehouse whole night and paraded around the
streets, the following morning with blackened faces whilst PCA members were shouting
slogans praising Indiana Culture and moral values. The restraining of a person in a particular
place or compelling him to go in particular direction by force of an exterior will
overpowering or suppressing in any way his own voluntary action is an imprisonment on the
part of him who exercises exterior will.4 Where a person is forced to walk under duress to a
particular direction it amounts to wrongful confinement. An act by which a person is
prevented from proceeding in a particular direction is an offence under this section.5

Section 3 and 4 of Indecent Representation of Women (prohibition) Act is

not applicable.

Section 3 of the Indecent Representation of Women (prohibition) act states that “no person
shall publish, or cause to be published, or arrange or take part in publication or exhibition of,
any advertisement which contains indecent representation of women in any form.”

This section clearly mentions the word publishing of any “advertisement”. As stated by the
facts of the case no advertisement containing obscene material was published. Also there is
no evidence that the photos and video clips which have been posted on social media are
leaked by features. Only an anonymous comment was posted accusing features for leaking all
the videos. Hence this section only applies to the advertisement and not content posted on
social media. Therefore this section of the Indecent Representation of Women act does not
apply in our case. The petitioner has no where published an advertisement of the women
which is indecent or obscene in nature.

4
Purankusam v. Stuart, (1865) 2 MHC 396

5
Nania Nanuram v. State of M.P.,1995 Cr LJ 1870(MP)