SYNOPSIS The Peoples Union for Civil Liberties (PUCL) was established by Shri Jai Prakash Narain, Acharya

Kriplani, Krishna Kanth and others. Shri V.M Tarkunde, Rajni Kothari, K.G. Kannabiran and others were associated with PUCL as its President. The organization has 25 state branches all over the Country. PUCL has been raising awareness about civil liberties and human rights and also fighting for their protection. The PUCL has conducted many fact finding enquiries and has compiled several reports on human rights violations. Among several important cases fought by the PUCL, few are: Telephone tapping case (1997) 1 SCC 301; Fake encounter in Manipur (1997)3 SCC 463; Disclosure of criminal background and assets by candidates (2003) 9 SCC 490; Challenge to POTA (2004) 9 SCC 980; and Right to food which is still pending in this Honble Court. The present petition impugns Section 66A of the Information Technology Act, 2000, the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 [henceforth referred to as the Website Blocking Rules] and the Information Technology (Intermediaries Guidelines) Rules, 2011 [The Intermediary Guidelines] as being violative of Articles 14, 19 and 21 of the Constitution of India. The instant writ petition is being filed under Article 32 of the Constitution of India by way of a Public Interest Litigation as there are instances of complaints under Section 66A of the Information Technology Act, 2000 as well as misuse of the abovementioned Rules all over country despite this Honble Court issuing notice in Shreya Singhal vs Union of India (WP (c) 167 of 2012) and connected Writ Petitions/ Special Leave Petitions.

It is respectfully stated that Section 66A of the Information Technology Act, 2000 provides a maximum of three years punishment for due to, inter-alia, annoyance or inconvenience being caused by online speech or writing. The offence is cognizable and due to the vague and undefined purported offences contained within it the power to punish speakers and writers through arrest and threat of criminal trial is at the first instance granted to complainants with offended sentiments and police officials. It is respectfully submitted that such criminalisation of speech over the internet and mobile phone communication is contrary to Articles 14, 19 and 21, because, inter alia, the said section penalizes and restricts online speech to a much greater degree than offline speech, restricts it in an unreasonable manner contrary to Article 19 (1) (2) of the Constitution of India and that a significant proportion of the offences in Section 66A do not even fall within the permissible categories of restriction in Article 19 (2). Similarly, the Information Technology (Intermediaries Guidelines) Rules, 2011 (hereinafter referred to as the Intermediary Rules, 2011) which are formed under Section 79(2) read with Section 87(2)(zg) of the Information Technology Act, 2000 also, inter alia, provide for grossly harmful, blasphemous, invasive of anothers privacy, ethnically objectionable, disparaging such vague and undefined categories which require legal determinations and effective censorship by private online service providers, are contrary to Articles 14, 19 and 21, and are not reasonable restrictions or falling within the permissible categories of restriction in Article 19(2). The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 which have been made

under Section 69A read with Section 87(2)(z) of the Information Technology Act, 2000 similarly provide for blocking of web pages in India without proper publication or notice to public containing the reasons for blocking of websites. Further the process for blocking of websites is entirely secret and ex facie fail to meet constitutional safeguards of natural justice under Articles 19 and 21. The unreasonably restrictive procedure for banning websites in addition, does not meet the procedural natural justice standards for book banning; e-books may thus be banned easily and secretively, immune to legal challenge as compared with their paper counterparts. As such the rules concerning the blocking of websites in their preset form are violative of Article 14 of the Constitution of India. The Petitioners are concerned that Section 66A, the Blocking Rules, 2009 and Intermediaries Rules, 2011 all promote censorship on the Internet and conflict with the protections under Articles 14, 19 and 21 of the Constitution of India and hence approach this Honble Court under its extraordinary jurisdiction under Article 32 of the Constitution of India. Hence the present Petition.

LIST OF DATES 9TH JUNE, 2000 The Information Technology Act, 2000 (21 of 2000) is notified in the official gazette and it comes into force.

An Expert Committee on Review of the IT Act 2000 is 25TH AUGUST, 2005 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 6TH DECEMBER, 2006 Review of the IT Act 2000 the Information Technology (Amendment) Bill No. 96 of 2006 is introduced before the LokSabha.

The Information Technology (Amendment) Bill No. 96 of 15TH DECEMBER, 2006 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 7TH SEPTEMBER, 2007 Technology of the 14thLokSabha submits a detailed report on the Information Technology (Amendment) Bill No. 96 of 2006.

The Information Technology (Amendment) Bill No. 96-C of 22ND DECEMBER, 2011 2008 is introduced in the LokSabha.

23RD DECEMBER, 2008

Information Technology (Amendment) Act, 2008 is passed by the LokSabha.

5TH FEBRUARY, The Information Technology (Amendment) Act, 2008 is 2009 notified and comes into effect. The Act, Information 2008:

Technology

(Amendment)

a. Inserts

Section

66A.

b. Inserts Section 69A under which the Website

Blocking

Rules,

2009

are

made.

c. Substitutes

Section

79

under

which

the

Intermediary Guidelines Rules, 2011 are made.

27TH OCTOBER, 2009

The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (hereinafter referred to as the Blocking Rules,

2009) are notified under Section 69A read with Section 87(2)(z) of the Information Technology Act, 2000. The Blocking Rules, 2009 provide the power to the Central Government to block websites in India without publication of the Blocking Order in the Official Gazette or providing reasons to the public for such an Order. No public consultation has been carried on these rules till date.

7TH FEBRUARY, Respondent No. 2 releases the Information Technology 2011 (guidelines) Draft Rules, 2011 (hereinafter the Draft Rules) for a purported public consultation inviting views and comments till 28thFebruary, 2011. The consultation was carried out in a secretive manner where the comments received on the Draft Rules were not made public, neither reasons were provided for the acceptance or rejection of the comments. 7TH FEBRUARY
TO 28
TH

Various responses are sent by Civil Society, Individuals and Industry Associations to Respondent No. 2 which object to the (Intermediaries guidelines) Draft Rules, 2011 on grounds that they violate the constitutional right to free speech and expression. These comments are not posted by Respondent No.2 or are made accessible to the public despite a purported public consultation. The comments received are not discussed and reasons are not assigned for their acceptance or rejection either.

FEBRUARY, 2011

11TH APRIL 2011 The Information Technology (Intermediaries Guidelines) Rules, 2011 are notified by Respondent No. 1 and come into force. The Information Technology (Intermediaries Guidelines) Rules, 2011 retain the character and content of (Intermediaries guidelines) Draft Rules, 2011 which had been previously been pointed out as an unreasonable restriction on the exercise of the constitutional right to speech and expression.

11TH MAY, 2011

Due to mass public outcry and media reports, a purported clarification to the Information Technology (Intermediaries Guidelines) Rules, 2011 titled as the, Exemption from Liability for Hosting Third Party Information: Diligence to be Observed under Intermediary Guidelines Rules is issued by Respondent No. 1. The clarification which is in the form of a press release seeks to clarify the scope of the Information Technology (Intermediaries Guidelines) Rules, 2011.

28TH JUNE, 2012

The National Crime Records Bureau, releases the Cyber Crime statistics for the offences registered for the year 2011. The chapter relating to Cyber Crimes records an alarming increase in the registration of Cyber Crimes

which has jumped from 996 in 2010 to 1791 in 2011. The data also records that more than half of the offences have been registered against accused in the 18-30 age group.

20TH AUGUST, 2012

The Central Government through a Press Release acknowledges issuing four blocking orders dated,

18.08.2012, 19.08.2012, 20.08.2012 and 21.08.2012 which order the blocking of various websites in India. These Orders do not make reference to the Blocking Rules, 2009 and are not made public. These four blocking orders are subsequently leaked online by the Economic Times

29TH NOVEMBER, 2012

A meeting of the Cyber Regulation Advisory Committee is held under the Chairmanship of Shri Kapil Sibal, Union Minister of Communication and Information Technology which arrives at a consensus that provisions of Section 66A and 79 of the Information Technology Act, 2000 are contextual and suitable clarifications in the form of guidelines would be issued by the Government to the States and Union Territories without any changes to the provisions themselves.

9.01.2013

The

Department

of

Electronics

and

Information

Technology issues an Advisory on the application of

Section 66A of the Information Technology Act whereby it advises state governments, that in case of any cases registered under Section 66A an advisory may be issued to the police stations to obtain sanction of the Inspector General of Police prior to the arrest.

18.03.2013

The

Department

of

Electronics

and

Information

Technology issues another Clarification on the Information Technology (Intermediary Guidelines) Rules, 2011 under which it stated that the words ..shall act within thirty-six hours as mentioned in sub-rule (4) of Rule 3 have an intended meaning that the intermediary shall respond or acknowledge to the complainant within thirty six hours of receiving the complaint/grievances about any such information as mentioned in sub-rule (2) of Rule 3 and initiate appropriate action as per law. This is the second clarification which has been issued by the Union of India to the Information Technology (Intermediary Guidelines) Rules, 2011.

21.03.2013

The parliamentary committee on delegated legislation in its 31st Report inter alia examines the Information Technology (Intermediaries Guidelines) Rules, 2011 and states at several instances that the rules are ultra vires the principal legislation, i.e. Section 79 of the IT Act.

2013 ONWARDS Various incidents involving the use of Sec. 66A receive media attention which highlights the arbitrary prosecution resulting from vague and undefined terms. Further instances of websites blocked, intermediaries asked to takedown content without adequate reason or recourse come to light. 19TH SEPT 2013 Hence the present petition filed under article 32 of the Constitution of India

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRIMINAL) NO. ____ OF 2013 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF:

PEOPLES UNION FOR CIVIL LIBERTIES Through its General Secretary Dr. V. Suresh Having its Office at 81 Sahyog Apartments, Mayur Vihar Phase I, Delhi-110091

PETITIONER Versus 1. UNION OF INDIA Through Secretary Ministry of Home Affairs North Block, Parliament House New Delhi Respondent No. 1 2. MINISTRY OF COMMUNICATIONS & INFORMATION TECHNOLOGY, Department of Telecommunications. 1110, Sanchar Bhawan, Ashoka Road, New Delhi, Through its Secretary Respondent No. 2 3. MINISTRY OF LAW & JUSTICE Through its Secretary 4th Floor A Wing Shastri Bhawan New Delhi: 110001 ,India Respondent No. 3 4. STATE OF WEST BENGAL Through its Chief Secretary, Writers Buildings. Kolkata-700 001 Respondent No. 4

A WRIT PETITIONJ UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA TO THE HONBLE CHIEF JUSTICE OF INDIA AND HIS OTHER COMPANION JUSTICES OF THE HONBLE SUPREME COURT OF INDIA THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED MOST RESPECTFULLY SHOWETH:

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

India by way of a Public Interest Litigation (PIL), challenging the constitutional validity of the provisions of the Information Technology Act, 2000 and the rules the framed thereunder, namely: a. SECTION 66A OF THE INFORMATION TECHNOLOGY ACT, 2000, b.THE

INFORMATION TECHNOLOGY (PROCEDURE AND SAFEGUARDS FOR BLOCKING FOR ACCESS OF INFORMATION BY PUBLIC) RULES, 2009 formed under Section 79(2) read with Section 87(2)(zg) of the Information Technology Act, 2000; and c.THE INFORMATION

TECHNOLOGY (INTERMEDIARIES GUIDELINES) RULES, 2011 (formulated under Section 69A read with Section 87(2)(z) of the Information

Technology Act, 2000). The impugned provisions are violative of Articles 14, 19 and 21 of the Constitution of India; not only do they provide for arbitrary censorship of free expression but Section 66A of the IT Act has also been unjustly, unfairly and flagrantly invoked in various States of the country criminalizing even the most apparently innocent of expressions thereby imperilling fundamental rights.

Citizens have been arrested and put on trial to penalize innocuous expressions of speech contrary to Article 19 of the Constitution of India as well as Articles 14 and 21 of the Constitution. 1A. The Petitioner is not a registered body but an association of

persons. The present petition is being signed by the authorised representative of the Petitioner, Dr. V. Suresh, General Secretary of the Petitioner.

2. The Petitioner has not approached any authority for the redressal of
the grievances and the prayers made in the present Petition.

3. The Peoples Union for Civil Liberties (PUCL) was established by

Shri Jai Prakash Narain, Acharya Kriplani, Krishna Kanth and others. Shri V.M Tarkunde, Rajni Kothari, K.G. Kannabiran and others were associated with PUCL as its President. The organization has 25 state branches all over the Country. PUCL has been raising awareness about civil liberties and human rights and also fighting for their protection. The PUCL has conducted many fact finding enquiries and has compiled several reports on human rights violations. Among several important cases fought by the PUCL, few are: Telephone tapping case (1997) 1 SCC 301; Fake encounter in Manipur (1997)3 SCC 463; Disclosure of criminal background and assets by candidates (2003) 9 SCC 490; Challenge to POTA (2004) 9 SCC 980; and Right to food which is still pending in this Honble Court. BRIEF FACTS

4. The present petition relates to the provisions of the

Information Technology Act, 2000 (hereinafter the IT Act) whose principal aims at the time of enactment was to regulate electronic commerce. To this end, the legislation of the IT Act was prompted by

5. The Model Law on Electronic Commerce drafted in 1996 by

the United Nations Commission on International Trade Law (UNCITRAL) with the objective of standardizing national legislations to facilitate electronic commerce. Thus the Information Technology Act, 2000, modeled with modifications on the abovementioned Model was introduced to provide legal recognition for transactions carried out by means of electronic communication, commonly referred to as "electronic commerce", which involve the use of alternative to paper-based methods of communication and storage of information to facilitate electronic filing of documents with the Government agencies.

6. That in 2005, as per the powers under Sec. 88 of the IT Act,

2000 an Expert Committee on Review of the IT Act was constituted by the Central Government. On 25th August, 2005, the Expert Committee submitted its Report and proposed changes to the IT Act. It is pertinent to note that the Expert Committee in the report and in the changes it submitted:
a. Did not suggest any provision analogous to Sec. 66A of the

Information Technology Act, 2000.

b. The proposed changes asked for a complete redrafting of

Section 79 as they found the existing law to be vague and onerous for intermediaries to apply.
c. Did not contain any provisions for the blocking of websites or

analogous provision to Sec. 69A

A true copy of the Report as well as proposed changes to the IT Act as suggested by the Expert Committee are attached herein and are marked as ANNEXURE P/1(Pages ).

7. That pursuant to the suggestions of the Expert Committee on

Review of the IT Act 2000 the Information Technology (Amendment) Bill No. 96 of 2006 was introduced before the Lok Sabha on 6th December, 2006. Some features of the Information Technology (Amendment) Bill No. 96 of 2006 included:
a. This version of the amending Bill contained Sec. 66A;

however it did so only with a term of imprisonment which extended to two years, the offence also being non-cognizable.
b. It is pertinent to note that Sec. 66A was not inserted pursuant

to any recommendation by the Expert Committee.

c. A redrafted version of Sec. 79 which provided exemption from

liability to Internet Intermediaries was also contained. Sec. 79(4) provided the Central Government with the power to prescribe guidelines through delegated legislation, to be observed by such intermediaries. The Report stated that, the guiding principles for the redrafted Sec. 79 were derived from the European Union E-Commerce Directive (2000/31/EC).
d. There was no provision for the blocking of websites or a

provision similar to Section 69A A true copy of the Information Technology (Amendment) Bill No. 96 of 2006 dated 2006 is attached herein and is marked as ANNEXURE P/2(Pages ).

8. On being tabled before the Lok Sabha, the Information Technology

(Amendment) Bill No. 96 of 2006 was referred to the Parliamentary Standing Committee on Information Technology. The said Standing Committee submitted a detailed report on the Information

Technology (Amendment) Bill No. 96 of 2006 on 7th September, 2007. Some of the pertinent points are :
a. The Department of Information Technology of Respondent No.

1 submitted that Sec. 66A had been inserted to address issues pertaining to spam. Para 20 of the recommendations suggested increasing the jail term to three years and making the offenses cognizable. In para 35 of its recommendations, the Standing Committee noted that a close scrutiny of Section 66A revealed that it did not deal adequately with the issue of spam emails. Spam emails are usually unsolicited commercial emails which are sent by online marketers. As per the report, Sec. 66A was intended only to tackle cases of spam emails.
b. In Paras 8-10 of its recommendations, the Parliamentary

Standing Committee found fault with the 2006 version of the IT Act (the Information Technology (Amendment) Bill No. 96 of 2006) and noted that: (i) there was no scope for ambiguity in language of Sec. 79 of the IT Act which provided for the exemption from liability for intermediaries; (ii) the enabling provisions should be incorporated in the parent act itself; leaving it to the Central Government to forumulate guidelines would result in ambiguity; and

(iii) specific legislative action was necessary rather than self regulation by intermediaries.
c. There was no provision for the blocking of websites or a

provision similar to Section 69A. A true copy of the Report of the Standing Committee on Information Technology on the of the 14th Lok Sabha on the Information Technology (Amendment) Bill No. 96 of 2006 dated 2006 is attached herein and are marked as ANNEXURE P/3(pages ).

9. That pursuant to the Report of the Standing Committee on

Information Technology of the 14th Lok Sabha on the Information Technology (Amendment) Bill No. 96 of 2006, requisite changes were made to the Amendment Bill which was introduced on 22nd December, 2008, and was passed on 23rd December, 2008. A true copy of the Information Technology (Amendment) Act, 2008 dated 2008 is attached herein and is marked as ANNEXURE P/4(pages ).

10.

That the Information Technology (Amendment) Act, 2008 was

notified on 5th February, 2009 and came into effect. It made substantial amendments to various provisions in the IT Act. The various amendments included:
a. Insertion of Section 66A of the Information Technology Act,

2000

b. Insertion of Section 69A under which the Website Blocking

Rules, 2009 have been formulated.

c. Substitution of Section 79 under which the Intermediary

Guidelines Rules, 2011 are formulated. SECTION 66A OF THE INFORMATION TECHNOLOGY ACT, 2000

11.

That Section 66A of the IT Act deals with punishment for

sending offensive messages through communication service, etc. and reads as follows: Any person who sends, by means of a computer resource or a communication device,(a) any information that is grossly offensive or has menacing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device, (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine.

That Section 66A was inserted vide Information Technology (Amendment) Act, 2008. It should be noted that this version was totally different from that suggested by the Parliamentary Committee.

INSTANCES OF THE APPARENT MISUSE OF SECTION 66A, IT ACT

12.

The repeated use of the arbitrary, subjective and unclear

nature of the terminology used in sec. 66A by different governments to prosecute persons who accidentally run foul of the provisions, has been widely reported by the media. The present Petitioner craves leave to present a few such instances which illustrate the inherent flaws in the construction of offences which result in the abuse of the law:
a. Mayank

Mohan Sharma and KVJ Rao, two Air India

Employees were arrested in Mumbai, Maharashtra for certain posts on a closed facebook group in a purported case of inter union rivalry. Subsequently, the Police have registered an FIR under Sec. 66A against the complainant Mr. Sagar Karnik as well.
b. Shaheen

Dhada, a student was arrested in Palghar,

Maharashtra for posting a status message or post on social networking website Facebook protesting an unofficial bandh imposed due to the death of a politician. Her friend Renu

Srinivasan, also a student, was also arrested for merely liking the post.
c. Aseem

Trivedi a cartoonist was arrested in Mumbai,

Maharashtra for posting cartoons on his website and on the social networking website facebook.
d. Ravi Srinivasan, a 46-year-old businessman in Puducherry,

was arrested for posting a tweet on micro blogging website Twitter criticizing the son of a prominent politician.
e. A FIR is filed against Jagdish Patil in Thane, Maharashtra for

downloading the picture of a girl from social networking website Facebook and sending it along with a birthday cake to her. True copies of details of these instances have been collectively annexed herein and are marked ). as ANNEXURE P/5

(COLLY)(Pages

IN RE: SECTION 66A OF THE IT ACT, 2000

13.

It is submitted that due to vague, indeterminate and undefined

phrases which have been used in the construction of Section 66A and given the status of offence, the legal and constitutional rights of the people have been put in grave peril; they can be subjected to criminal action even in totally innocuous situations. Such arbitrary application results from vague phrasing and an absence of any clear legislative definition of the expressions used in Section 66A. It is pertinent here to note that many of the terms used in Sec. 66A have not been defined either under the IT Act, 2000 or under the General Clauses Act or under any other legislation, to the best of the

Petitioners knowledge. This unfortunately leaves the interpretation of the provisions, which criminalizes even unintended, innocent acts, to the police thereby seriously jeopardizing fundamental rights of citizens to free speech and liberties.

14.

For instance, the absence of any definition or any explanation grossly offensive or menacing

as to the scope of the terms

character in Sec. 66A(a), results in making acts which were innocent of any criminal intention, an offence under Sec. 66A leaving interpretation of the provisions to the whims and fancies of prosecuting agencies.. The abounding vagueness of the terms apart, the absence of limitations to the use of sec. 66A itself is against Articles 19 and 21 of the Constitution, and as per the general rule that criminal statutes should be defined certainly and strictly construed. As a consequence of the vague phrasing they are ripe for arbitrary application and may be struck down as unconstitutional for being vague.

15.

That it is pertinent to mention that Sec. 66A does not contain

one offence, but contains multiple offences which may be applied to any speech or content uploaded online. In as much as Sec. 66A lacks any coherence and structure as to the commission of a single offence it does not contain any definitive ingredients of an offence which are specified in the sub-sections.

16.

It is submitted that the lack of coherence to tackle any

particular offence is most noticeable in Sec. 66A(b), which contains a list of grounds attracting the offence. It is pertinent to mention that most of the phrases such as, annoyance or inconvenience are vague, imprecise of definition and inchoate and do not contain any ingredients which can be easily and uniformly applied. It is similarly relevant to highlight that even in respect of phrases for which analogous criminal offences exist, there is no reference made to such distinct sections. For instance, when Sec. 66A(b), states criminal intimidation it does not make reference to Sec. 503 of the Indian Penal Code, 1860 which contains the offence of criminal intimidation. The absence of such reference to similar provisions in a separate enactment, absent a definition of the offence along with the conspicuous absence of any of the ingredients for criminal intimidation creates a context ripe for arbitrary use abuse or misuse of the law and may lead to a contrary interpretation of the offence of criminal intimidation merely because it is carried online.

17.

The offences u/s 66A are not only undefined they are also

broadly worded; so much so, even when the best construction is placed on them they result in a duplication of offences which are contained under other existing penal laws which are adequate to check the commission of crimes. The point to be noted here is that sec. 66A repeats existing offences without however, incorporating the legislative and judicially evolved checks and balances guiding their interpretation to specific acts as also guiding prosecutions,

including the existence of ingredients of the offence warranting invoking the law as well as the safeguards and exceptions which safeguard the liberties and fundamental rights of persons alleged to have committed the crimes. In this respect a table listing the terms under Section 66A are provided below:

S. 66A (a) Any information that is:

Purported Imprisonment Lack of similarity Same or term/fine or similar words both appearing in other legislations Section 20(b) Imprisonment Indian Post for a term Office Act, which may 1898 extend to one year or with a fine or both Section 20(b) only applies in one to one communications in which there are personal threats etc. made to the recipient and not for content which is posted publicly.

Grossly offensive

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 (criminal intimidation) of the Indian Penal Code, 1860 Imprisonment which may extend to two years or with fine or both. Section 503 of the IPC does not mention the term, menacing. Moreover no legislative guidance is present in Section 66A whereby a reference is made to the offence under Section

503 of the IPC.

(b) Information he knows to be false but for the purpose of causing: annoyance Section IPC 507 Imprisonment for a term which may [Criminal extend to two intimidation years by an anonymous communicati on] Section 507 of the Indian Penal Code is an aggravated offence 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-sequitur given that there is no requirement of anonymity for annoyance to be invoked under Section 66A. Inconvenien ce Section 268 No specific [Public penalty has Nuisance] been provided. In case the aggravated and specified 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,

classes of public nuisance are not satisfied a residuary penalty of Rs. 200 fine is imposed.

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 offence of public nuisance and in no way is containing an offence of inconvenience. Hence, no guidance can be laid on it.

Danger

Section 268

Same above

as Where it is 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.

Obstruction

Section 268

Same above

as Where it is 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 of 295A, 298 from 2 years. 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. Injury Section 503, Imprisonment Section 503 of the Indian Explanation which may Penal Code, 1860 refers extent to two to the offence of criminal years 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. Criminal intimidation Section IPC 503 Imprisonment which may extend to two years Even though the Indian Penal Code within Section 503 contains an offence of criminal intimidation no reference is made to it. Firstly each of the provisions mentioned of the Indian Penal Code contemplate enmity as the ingredient of a offence as opposed to be an offence by itself.

enmity

Section 505(2) IPC, 295, 295A, 298

Imprisonment which may extend from two to three years.

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 enmity is only an ingredient to an offence as opposed to the offence itself. Hatred or ill Section will 505(2) IPC Imprisonment which may extend to two years Firstly each of the provisions mentioned of the Indian Penal Code 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 ill will is only an ingredient to an offence as opposed to the offence itself.

18.

An egregious instance of the use of Section 66A is the case

against Prof. Ambikesh Mahapatra and Sh. Subrata Sengupta. The FIR against them for circulating a cartoon to their housing society members was been filed (by a non recipient of the email) under Section 66A of the Information Technology Act, 2000 as also u/sections 500 (defamation) and 509 (insulting the modesty of a woman through word, gesture or act) of the Indian Penal Code, 1860. The ingredients for the offence of defamation as well as insulting the modesty of a woman are clearly contained under the Indian Penal Code. Also, Section 499 of the Indian Penal Code which contains the offence of defamation clearly contains exceptions under which an act of parody/ satire would clearly qualify. In the absence of any definition, ingredients or exceptions, Section 66A imposes an onerous and unfair burden on the persons prosecuted under it leaving it entirely to the subjective interpretation and satisfaction of the complainant, the police authorities and courts as to what constitutes the offence of annoyance and inconvenience. The unnecessary repetition of the offence under the IPC in sec. 66A

apart, it also needs to be pointed out that provisions under the Indian Penal Code, 1860 are not limited to acts which are done offline and applies as much to electronic communications. Courts have repeatedly and purposively interpreted the provisions of the Indian Penal Code, 1860 to apply them with the advance in technology. Hence, it is evident that Sec. 66A results in duplication of existing penal provisions without any concomitant purpose and with an absence of ingredients and safeguards, thereby shifting the burden of proof and changing the fundamental principles of criminal law. only makes the burden on the accused harsher.

19. That Prof Ambikesh Mahapatra and Mr. Subrata Sengupta- then
office bearer of the Housing Society- were taken to the police station at 11 pm on 12th April for circulation of the above email under protective custody, without any diary number concerning the same being recorded. Indeed an FIR was only filed thereafter, by a Mr. Amit Sardar who was not a recipient of the email in question, nor a member of the New Garia Housing Society. On 12.04.2012 the said FIR was filed at Police Station Purba Jadavpur bearing Case No. 50, under Sections 509/500/114 of the Indian Penal Code and Section 66A(b) of the Information Technology Act, 2000 for allegedly sending an email on 22.03.2012 to other members of their housing society which attached a collage cartoon of a political leader based on a parody of a scene from the Bengali movie Sonar Kella. The FIR notes that at Serial No. 12 (reproduced below with the typographical mistakes as contained in the original) that:

The accused persons being aided and abetted with each other intending to insult the modesty of women by exhibited some objectionable thing and defamed dignatory and also send Mail through computer among the members of New Garia Housing Society concerning some dignatory and thereby causing annoyance, insult and injury to them at the abovenoted date, time place A copy of cartoon from Sonar Kella is annexed herein and is marked as Annexure P/5A.

20.

A bench of Justice Asoke Kumar Ganguly, Justice NC Sil, and Shri SN Roy of the West Bengal Human Rights Commission took suo motu cognizance of the matter on 16.4.2012. The WBHRC directed investigation of the matter by the Commissioner of Police, Kolkata, the Additional Commissioner of Police, the OC of PUrba Jadavpur police station as well as the Sub Inspector who arrested Professor Mahapatra and Shri Sengupta . The Honble WBHRC recorded as follows: 13. It is clear from the manner in which both Professor Mahapatra and Shri Sengupta were taken from the office of the society in a police van to the police station at 11 p.m. on 12.04.2012 that they were arrested by the police. Even though the Code of Criminal Procedure Code does not define what is meant by arrest, but in Section 41 thereof enumerates the situations when Police may arrest without an order of a Magistrate or without a Warrant. None of the situations contemplated in Section 41(1) is present in this case.

Shri Mishra and other police officers tried to justify by saying that those two persons were taken in protective custody by the police but admitted that there is nothing known as protective custody in law. 14. Protective custody by the police can be only resorted to in case of a minor or a lady who is trafficked or a person who is insane. The concept of protective custody is wholly misplaced in respect of two adult men. On the other hand Shri Sanjoy Biswas who was present on the spot admitted before the Commission that there was a case of wrongful confinement of the arrestees against the agitated mob and a case under Section 341 IPC, which is a cognizable offence, was made out. Police did not arrest anyone from those agitated persons who forcibly confined the arrestees and even though the Police Station one and half kilometer away. On the other hand police arrested those two elderly persons who were peacefully sitting confined in the office of the Society. 15. At the time police arrested those two persons no FIR was lodged against them and the subject cartoon, allegedly circulated which was filed with the FIR was not even seen by the police. At the time of their arrest only allegations against those persons were that they circulated by e-mail a cartoon which was derogatory to Honble Chief Minister and they carried a door to door derogatory campaign within the said Society.

21. The Honble WBHRC went on to explain the political and cultural
context to the cartoon circulated:

22. In this case, the cartoon is based on the story line in a feature film meant for children called Sonar Kella directed by Late Satyajit Ray. The film was very popular and enjoyed by children and the adults alike. 23. In the film a part of the story is that one Professor was pushed down the mountain by the villain and when the professor was not visible, the villain told Mukul, the child-hero in the film, that he had vanished. Following that story sequence, here the cartoon depicts that the Honble Chief Minister of West Bengal tells Mr. Mukul Roy, the newly appointed Railway Minister that the previous Railway 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 or indecent and slang in connection with the said film or even in respect of the subject cartoon.

22. Indeed the Honble WBHRC made clear that the FIR did not disclose
the ingredients of any offence, as such the West Bengal State Government, Respondent No. 2 herein, was directed to compensate Prof. Mahapatra and Mr. Sengupta by payment of Rs. 50,000. Although two months were provided to the West Bengal State Government to execute the recommendations, they have not done so till the present date.

23. Subsequently, a charge sheet has been filed against Prof.

Mahapatra and Mr. Sengupta on 19.07.2012 whereby the charges under Sections 509/500/114 of the Indian Penal Code were been dropped, charges under Section 66A(b) of the Information Technology Act, 2000 and 66A(c) remain.

24.

In addition to duplication of existing offences, Sec. 66A in the

absence of any rationale increases jail terms of existing offences, which have already been made punishable under the Indian Penal Code.

25.

It is also pertinent to mention that Sec. 66A as a section only

applies to online speech. The same content if published offline by way of a book or a pamphlet, may not invite any criminal charge against the author under other laws, even though it is prosecutable u/s 66A. . Such discrimination in application of a penal provision solely based on the medium of communication in the absence of any reasonable differentia plainly infringes upon the right to equality under Article 14 of the Constitution of India.

26.

That it is pertinent to note that the section has been applied

even in cases where an online communication occurs through a private medium of communication not meant for public circulation. Hence, the question of the material being "grossly offensive" or question of the communication piece being "for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will," would only arise if the recipient of such communication feels the same. It is respectfully stated that in addition to other illegalities, this attack on the privacy of a user of internet communication is ultra vires the Article 21 and patently against the intention and spirit of the Act.

27.

That the ambiguity and vagueness of the terms mentioned in

the impugned section apart, the wording of sec. 66A results in

attributing knowledge to the maker of the communication by the sheer fact of making the communication. In the absence of rules or guidelines elaborating or explaining what acts are lawful from those which are not, , a person, living in a diverse society such as ours with different standards/ tolerance levels for people, cannot possibly fathom what might offend someone. Therefore it is very possible that a person may attract criminal proceedings against herself/himself even though the person did not even remotely intend to cause any of the effects mentioned in the impugned section and is unaware as to what would satisfy the words mentioned in Section 66A. It is hence, not possible for a person to follow the "law" when he/she does not know what constitutes an offence under it. It is trite law that penal provisions must not be vague and ambiguous. Such vagueness and ambiguity not only offends Article 21 but is also impinging the right to speak freely as guaranteed by the Constitution.

SECTION 69A OF THE INFORMATION TECHNOLOGY ACT, 2000

28.

Section 69A of the IT Act reads as:

69-A. Power to issue directions for blocking for public access of any information through any computer resource .(1) Where the Central Government or any of its officers 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.

29.

That the Information Technology (Procedure and Safeguards

for Blocking for Access of Information by Public) Rules, 2009 have been made by Respondent No. 1 for blocking access to websites pursuant to the powers vested under Section 69A of the Information Technology Act, 2000. The Blocking Rules, 2009 contemplate under Rule 3 for a designated officer being an officer not below the rank of joint secretary in the central government to issue blocking orders under Rule 5. Such directions are made suo motu or by request of Nodal Officers appointed by Central, State Government and UT Ministries or Departments, or Central Government agencies as per Rule 4. Rule 3, 4, 5 of the Blocking Rules read as under: 3. Designated Officer.The Central Government shall designate by notification in Official Gazette, an officer of the Central Government not below the rank of a 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 computer 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 one 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 India 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

of the Government or intermediary to block for access by the public any information or part thereof generated, transmitted, received, stored or hosted in any computer resource for any of the reasons specified in sub-section (1) of section 69-A of the Act.

30.

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 concerned organization for blocking of access by the public any information. generated, transmitted, received, stored or hosted in any computer resource: Provided that any request, other than the one from the Nodal Officer of the organisation, shall be sent with the approval of the Chief Secretary of the concerned State or Union territory to the Designated Officer: Provided further that in case a Union territory has no Chief Secretary, then, such request may be approved by the Adviser to the Administrator of that Union territory. (2) The organization shall examine the complaint received under sub-rule (1) to satisfy themselves about the need for taking of action in relation to the reasons enumerated in sub-section (1) of section 69-A of the Act and after being satisfied, it shall send the request through its Nodal Officer to the Designated Officer in the format specified in the Form appended to these rules. (3) The Designated Officer shall not entertain any 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-mail which is not signed with electronic signature, the Nodal Officer shall provide a signed copy of the request so as to reach the Designated Officer within a period of three days of receipt of the request by such fax or e-mail. (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.

31.

That the Rules also contemplate a committee to examine

requests by any person under Rule 7, when such requests for blocking of websites are forwarded by the Nodal Officers with approval from a Chief Secretary. The procedure for the examination of such requests is stated under Rule 8. Rule 7 and 8 read as follows: 8. Examination of request.(1) On receipt of 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 as 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 resource hosting 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 date and time, which shall not be less than forty-eight hours from the time of receipt of such notice by such person or intermediary. (2) In case of non-appearance of such person or intermediary, who has been served with the notice under sub-rule (1), before the committee on such specified date and time, the committee shall give specific recommendation in writing with respect to the request received from the Nodal Officer, based on the information available with the committee. (3) In case, such a person or intermediary, who has been served with the notice under sub-rule (1), is a foreign entity or body corporate as identified by the Designated Officer, notice shall be sent by way of letters or 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 a notice within the time specified therein, failing which the committee shall give specific recommendation in writing with respect to the request received from the Nodal

Officer, 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 subsection (1) of section 69-A of the Act and that it is 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. (5) The designated Officer shall submit the recommendation of the committee, in respect of the request for blocking of information alongwith the details sent by the Nodal Officer, to the Secretary in the Department of Information Technology under the Ministry of Communications and Information Technology, Government of India (hereinafter referred to as the Secretary, Department of Information Technology). (6) The Designated Officer, on approval of the request by the Secretary, Department of Information Technology, shall direct any agency of the Government or 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 such Nodal Officer. . 9. Blocking of information in cases of emergency. (1) Notwithstanding anything contained in rules 7 and 8, the Designated Officer, in any case of 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 subsection (1) of section 69-A of the Act and it is necessary or 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 computer 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 subrule (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 request 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 information shall be accordingly directed to unblock the information for public access.

32.

That Rule 14 of the Blocking Rules also contemplates the

constitution of review committee which shall meet at least once in two months to review the directions for blocking. Rule 16 states that all information regarding all requests and complaints received and actions taken thereof shall remain confidential. Rule 14 and 16 reads as follows: 14. Meeting of Review Committee.The Review Committee shall meet at least once in two months and record its findings whether the directions issued under these rules are in accordance with the provisions of sub-section (1) of section 69-A of the Act and if is of the opinion that the directions are not in accordance with the provisions referred to above, it may set aside the directions and issue order for unblocking of said information generated, transmitted, received, stored or hosted in a computer resource for public access. 16. Requests and complaints to be confidential. Strict confidentiality shall be maintained regarding all

the requests and complaints received and actions taken thereof.

33.
are

It is submitted that Rule 3 and Rule 5 of the Blocking Rules liable to be set aside as unreasonable, illegal and

unconstitutional since they do not provide any hearing or afford natural justice to the author whose website is blocked prior to the blocking. Indeed even after such a website is blocked, no list of blocked websites is released to the public, nor are reasons for blocking websites released to the owner of the website. It is pertinent to mention that the orders for blocking under Rule 6 are passed after compliance with recommendations of a Committee for Examination of Blocking Requests under Rule 7. It is respectfully submitted that no such Committee approval is required if the request for blocking is made by a government agency and the Designated Officer under Rule 5 may block such a website on his or her own decision.

34.

The procedure for the blocking with reference to requests

made by individual persons under Rule 6 are set out under Rule 8. Certain purported safeguards are incorporated under which complaints by private individuals for blocking are examined. Specifically, Rule 8(1), states that the Designated Officer shall make reasonable efforts to identify, the person or intermediary who has hosted the information and issue such person or intermediary a show cause notice to submit a reply and clarifications as to why the website should not be blocked. Herein it is pertinent to mention that the person and the intermediary hosting the information is not the author of the content and hence the author has no notice or hearing

as to the content being blocked. This is similar to a situation where a notice is issued to a bookshop which stocks the impugned book as opposed to the author who has authored the book.

35.

That even after the Blocking Order has been issued under

Rule 5 of the Blocking Rules, there is no legal provision for the communication of the Order to the Author who is the primary affected party. There is also a marked absence of natural justice under the Blocking Rules, 2009 as there is no communication of the blocking order to the author or even the opportunity of a post decisional hearing. Hence, the owner and the author of the content have no opportunity for understanding the reasons for the censorship of content and the blocking order passed by the Designated Officer. Additionally, there is also no provision in the rules to file an appeal against such a blocking order.

36.

That it is also submitted in this regard that persons who are

intermediaries or host information are private companies providing facilities for profit who do not have the requisite locus or interest to contest or respond to notices which are issued under Rule 8(1). Moreover, Rule 8(2) provides that if such notices are not responded within 48 hours then the Committee for Examination of Blocking Requests can make its recommendations for the blocking of the website in the absence of such a reply/response. An intermediary who fails to comply with a request can be imprisoned and fined under Section 69A. This provides no check for arbitrary or motivated

or political blocking. If the ISP fails to comply, the ISP may be held liable for offence. This, in effect makes complying with censorship a necessary condition bargain in order for the ISP it to continue operations. In essence the level playing field notion is totally negated, unfairly and unacceptably empowering the state authorities thereby denuding and endangering the enjoyment of fundamental rights of citizens and others.

37.

That the provisions with respect to blocking of websites in

cases of emergency contained under Rule 9 are even more problematic as they do not require the service of any notice to any person before the blocking order is issued; and this lack of hearing is not remedied by any post decisional hearing for such emergency orders to the author or even the person or intermediary hosting the website. Indeed the nature of the emergency has not been defined either. In this context it will be useful to consider how courts have addressed similar situations elsewhere. In Yildrim v Turkey [2012] ECHR 2074, The European Court of Human Rights held that a restriction on access to a source of information was only compatible with the [European Convention on Human Rights] if a strict legal framework was in place regulating the scope of a ban and affording the guarantee of judicial review to prevent possible abuses. Further, that Courts should have had regard to the fact that such a measure would render large amounts of information inaccessible, thus directly affecting the rights of internet users and having a significant collateral effect. It will be pertinent here to highlight that this is the

first decision by an international tribunal regarding the whole sale blocking of internet content

38.

That one of most important safeguards which are present in

the Blocking Rules, 2009 is the constitution of a Review Committee which under Rule 14 is mandated to meet at least once every two months and record its finding whether the directions issued under the rules are in accordance with Sec. 69A, IT Act. The review committee has also been provided with the power to set aside directions and issue order for unblocking. However, there appears to be no provision to make public information regarding the proceedings before such Review Committee or details of individual cases being heard by the Committee or about Orders passed by such Committee. In the absence of such information, the Review Committee functions as an internal committee without public involvement, engagement or participation making decisions which vitally affects the rights of individual citizens and service providers without their knowledge or participation.

39.

Apart from this aspect, Rule 16 of the Blocking Rules, 2009

further states that information regarding any request, complaints and actions shall be kept strictly confidential. It is respectfully submitted that such secrecy is completely opposed to any norms of natural justice where no notice has been provided to the author of the content. Here it will be necessary to point out that this Honble Court has recognized in a several judgments that the right to speech and

expression includes the right to read and receive information. The absolute secrecy with which such blocking orders are made, without any public notice and in the absence of any reasons affects what information citizens are permitted to access and offends the right to freedom of speech and expression as enshrined under Article 19(1)(a). In S.P Gupta v President of India and Ors[1982] AIR (SC) 149 it was held that The concept of an open Government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression .disclosure of information in regard to the functioning of government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. Information related to constitutional freedoms should be accessible without the need to make formal application for disclosure, especially information about the

functioning and decision making of public bodies. An RTI application can partly circumvent rule 16.

40.

That it is in this respect, submitted that the Blocking Rules, fall

outside the scope of the reasonable restrictions under Article 19(2) as they do not contain any safeguards in the blocking of websites. Besides the absence of any such safeguards, the Blocking Rules, 2009 do not contain any requirements for the Central Government to provide the grounds of opinion as to what offences are committed in respect of the Websites for which blocking orders are issued.In this context it is useful to refer to Para 43, General Comment No. 34 on

the ICCPR by the Human Rights Committee at its 102nd session at Geneva, 11-29 July 2011, CCPR/C/GC/34

Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site or an information dissemination system from. (para 43) It will also be pertinent to note the provision of Article 19 of the ICCPR which states that: ICCPR, Article 19 1. Everyone shall have the right to hold opinions 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.

41.

It is also submitted that the abovementioned blocking powers

for websites under the impugned provision of the IT Act and Rules disclose significant discrepancy when compared to the process for banning books. The book banning provision is contained under the power to confiscate a publication under Section 95 of the Code of Criminal Procedure, 1973. Section 95 may be exercised when, (a) the publication of which is punishable under section 124A or section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code (45 of 1860); and (b) by an order of the State Government may, by notification, state the grounds of its opinion for the confiscation. Section 96 of the Code of Criminal Procedure, 1973 further provides a statutory right of Appeal to the State High Court impugning the Order of Confiscation. Such an appeal can be made not only by the author but by any person in recognition of the fundamental right of speech and expression which includes the right to read and receive information. Therefore, it is submitted that the Blocking Rules, 2009 not only fail to incorporate safeguards to safeguard rights under Article 19(1)(a) but also fail to satisfy the constitutional touchstones of equality under Article 14 by discriminating against content which hosted on the Internet.

42.

That due to the near total secrecy surrounding the process as

well as the eventual orders under the Blocking Rules, 2009, the Petitioner has been able to refer to only two documents in this Petition which highlight the grave dangers posed by them.

43.

That the first document is a RTI response dated 10thJune,

2011 from the Ministry of Communication & Information Technology to the Center for Internet and Society, Bangalore on the implementation of the Blocking Rules. According to the RTI Response:
a. The Department of Information and Technology, Government

of India, fails to specify how the person or the intermediary hosting the website is determined to whom the notice under Rule 8(1) is sent and then a reply is sought.
b. It further fails to provide a copy of any such notices which

have been issued by it, and the factum and nature of hearing has been afforded by it before such a blocking order has been issued by it.
c. There is further no clear response as to whether any of the

blocking directions which have been issued have been revoked under Rule 14 by subsequent examination of the review committee.
d. The response only provides the minutes of meeting of the

Committee for Examination of Requests constituted under Rule 7 for one block order and fails to provide details for the others.
e. No further information as to the constitution of the review

committee under Rule 14 or any meetings made by it have been made available till date. A copy of the RTI response dated 10thJune, 2011 is annexed herein and is marked as Annexure P/6(pages ).

44.

That the second document which is relevant to the Blocking

Rules, 2009 is a news release by the Press Information Bureau dated 20th August, 2012 released by the Ministry of Communications and Information Technology which noted that the Ministry of Home Affairs issued orders under Section 69A of the IT Act, 2000, directing intermediaries, including international social networking sites, to block 76 web pages on 18.08.2012, 80 web pages on 19.08.2012, 89 web pages on 20.08.2012. All these four Orders were subsequently made publicly available by the Economic Times through its article dated 24th August, 2012 titled as, After paralysis, UPA-II develops Twitter block; blocks handles of journalists, rightwing groups.

45.

The three Orders referred to above reveal that:

a. The actual orders do not contain the reasons for blocking of

the websites or the grounds of opinion identifying the content and the illegality as per the opinion of the blocking authority.
b. They merely listed the URLs (web addresses) in a numbered

list and did not even mention any collective reason for issuing the blocking orders.
c. The Orders also failed to mention any provision of the

Blocking Rules, 2009 under which they were issued. Hence, there is ambiguity as to whether they are issued under Rule 8 as a normal request for blocking or under Rule 9 as a blocking in cases of emergency.
d. The Orders prominently mentioned that the URLs (web site

addresses) should not be mentioned in the compliance letter

confirming the secretive process under which such blocking orders are made.
e. After the issuance of the Block Orders, it came to be known

that

they

contained

directions

to

block

the

twitter

handles/accounts, of two prominent journalists, Shiv Aroor of the Headlines Today television channel and Kanchan Gupta, formerly of The Pioneer. In these blocking orders the complete twitter handles (accounts) themselves were blocked as opposed to individual tweets (messages). This is similar to an analogy where rather than confiscating an offending book under an order under Sec. 95 of the CrPC, the author is prevented from any future writing by confiscating the means to write thereby constituting a serious violation of the authors fundamental right of free speech and expression. A copy of the Press Information Bureau Release dated 20.08.2012 as well as the Orders dated 18.08.2012, 19.08.2012 and 20.08.2012 are collectively annexed herein and are marked as Annexure P/7 COLLY (Pages ).

46.

That the Petitioners submit that an empirical study published

on 9th August, 2012 by the OpenNet Initiative [a collaborative partnership of three institutions: the Citizen Lab at the Munk School of Global Affairs, University of Toronto; the Berkman Center for Internet & Society at Harvard University; and the SecDev Group (Ottawa)] found glaring flaws with the implementation of the Blocking Rules, 2009 which result in a violation of the fundamental rights

guaranteed under Articles 14, 19 and 21. The OpenNet Initiative study inter alia revealed that:
a. When users attempt to access a blocked Website on any of

the tested ISPs, they receive a server not found error page. This error page also received in the instance of a genuine server error gives users the impression that the Web sites are inaccessible as a result of routine network errors, rather than an order issued under the Blocking Rules, 2009
b. Technical analysis revealed evidence of collateral filtering on

two ISPs: Bharti Airtel and MTNL. Collateral filtering is a result of IP-based blocking and refers to Web site that are unintentionally filtered as a result of sharing the same IP address as a Web site that has been intentionally blocked. For example, testing during 2006 2007 found that a site about American-Israeli rabbi Meir Kahane (http://kahane.org) was blocked because it shares the same IP address as the Hindu Unity Web site (http://hinduunity.com, http://hinduunity.org); testing in 2009 2010 confirmed that the block was still in place. Similarly, during testing in 2008 2009, a Web site for travel agents (http://www.positivespace.com) and a system administrator resource Web site (http://gwsystems.co.il) were found blocked as a result of sharing that same IP address with the Hindu Unity Web site.

A copy of OpenNet Initiative empirical study published on 9thAugust, 2012 is annexed herein and is marked as Annexure P/8(Pages ).

47.

It is therefore evident that not only are the Blocking Rules,

2009 against the fundamental rights enshrined under Articles 14, 19 and 21 but are also inherently secret, and thus fail the constitutional touchstones of equality under the law, free speech justice. INFORMATION TECHNOLOGY (INTERMEDIARIES GUIDELINES) RULES, 2011 and natural

48.

Section

79

provides

for

exemption

from

liability

of

Intermediary. Also the definition of Intermediary, as per clause (w) of sub-section (1) of Section 2 of the IT Act was amended. The definition now reads as follows: (w) intermediary, with respect to any particular electronic records, means any person who on behalf 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;

49.

In the present digital age, blogs and websites are a

substantial medium for citizens and civil society to express their views, share opinions and engage in discussions. Blogs and websites have a great role to play in the expression of individual opinion as well as the formation of public opinion. The internet

specifically serves as a medium to report news and events from places including from places not reported by print media, which for reasons of space constraints as also artificially constructed limits selectively privileges news about and from certain types of regions and issues. In a way, the internet has democratised the free flow of information including from places where dictatorial and authoritarian regimes which closely monitor sharing of news and also in fact violently suppress free speech. The recent upsurge of peaceful agitations in the Middle East demanding greater democracy and upheavals against dictatorial regimes as for example in recent events in Tunisia and Egypt illustrate the way the electronic message gateway has influenced free speech and expression around the world. This apart, the digital medium has been of immense impact during times of natural disasters such as the earthquake and tsunami which struck Japan, which enabled quick warning to people as also in the mobilization of assistance and help rendering immediate assistance possible. Hence, over and above the exercise of individual speech, the Internet through individual user generated content also serves the function of a modern press.

50.

That it is respectfully submitted that Intermediaries play a vital

role in dissemination of such information by providing tools and platforms that allow users to access the Internet, host content, share files and transact business. Most blogs and websites are on the backbone of Intermediaries which provide unmatched cost benefits. These also include social networking websites where Indian citizens regularly express their opinions. In this respect it is humbly

submitted that the rankings of top 25 websites in India as compiled by Alexa, a company which is considered an authority on website traffic, reveals a majority of the websites are Internet Intermediaries. Alexa rankings have been cited widely in legal journals and decisions and a copy of the Alexa top 25 websites in India as on 15th January 2013 (dynamic changing Alexa rankings accessible at http://www.alexa.com/topsites/countries/IN) is attached herein and is marked as ANNEXURE P/9(Pages ).

A copy of the Quantcast top websites accessed in India also reveals that most of the top websites are Intermediaries providing the functionality of content hosting and publishing for their users. A copy of the Quantcast top websites (dynamic changing Quantcast rankings accessible at http://www.quantcast.com/top-sites/IN)

accessed in India as on 1.15.2013 is attached herein and is marked as ANNEXURE P/10(Pages )

51.

That in addition the promotion of Internet based commerce is

one of the fundamental purposes of the IT Act, 2000. Internet Intermediaries form an essential component of Internet Commerce generating new age entrepreneurs and business as well as generating employment. A report on Internet Intermediaries by the Organization of Economic Cooperation and Development (OECD) dated April, 2010, concluded that as per official records a total of 1.4% of the GDP of the United States was generated by Internet Intermediaries. Though similar figures are unavailable for Internet Intermediaries in India it can be reasonably expected that electronic commerce in India is composed of a sizeable extent of revenue,

business and trade by Internet Intermediaries. A copy of the OECD study on Internet Intermediaries dated April, 2010 is attached herein and is marked as ANNEXURE P/11(Pages ).

52.

That on 7th February, 2011, Department of Information

Technology, Ministry of Communications & Information Technology released the Information Technology (Intermediaries guidelines) Draft Rules, 2011 (hereinafter the Draft Rules) for a public consultation inviting views and comments till 28th February, 2011. The consultation was carried out in a secretive manner where the comments received on the Draft Rules were not made public, neither were reasons provided for the acceptance or rejection of the comments. A copy of the (Intermediaries Guidelines) Draft Rules, 2011 is attached herein and is marked as ANNEXURE P/12.

53.

That between 7th February and 28th February, 2011 various

responses were sent by members of civil society, individuals and industry associations to Respondent No. 2 which object to the (Intermediaries Guidelines) Draft Rules, 2011 inter alia on grounds that they violate the constitutional right to free speech and expression. These comments were not posted online by Respondent No.2 or made accessible to the public despite a purported public consultation. The comments received were further not discussed and reasons are not assigned for their acceptance or rejection either. The Petitioner has made a best effort to compile comments to

the (Intermediaries guidelines) Draft Rules, 2011 which are attached herein and are marked as ANNEXURE P/13(Colly) (Pages ).

54.

That the Central

Government notified the Information

Technology (Intermediaries guidelines) Rules, 2011, on 11th April 2011, prescribing guidelines for intermediaries, in exercise of the purported powers conferred by Clause (zg) of Sub- section (2) of Section 87 read with Sub-section (2) of Section 79 of the IT Act. The Information Technology (Intermediaries Guidelines) Rules, 2011 retained the character and content of (Intermediaries guidelines) Draft Rules, 2011 which had been previously been pointed out as placing unreasonable restrictions on the exercise of the

constitutional right to speech and expression in the absence of procedural safeguards. A copy of the Information Technology (Intermediaries Guidelines) Rules, 2011 is attached herein and is marked as ANNEXURE P/14(Pages ).

55.

That due to mass public outcry and media reports, a purported

clarification dated 11th May, 2011 titled as the, Exemption from Liability for Hosting Third Party Information: Diligence to be Observed under Intermediary Guidelines Rules was issued by Respondent No. 1. The clarification which was in the form of a press release sought to clarify the scope of the Intermediaries Rules, 2011.

A copy of the Exemption from Liability for Hosting Third Party Information: Diligence to be Observed under Intermediary Guidelines Rules issued by Respondent No. 1 on 11th May, 2011 is attached herein and is marked as ANNEXURE P/15(Pages ).

56.

That the Intermediary Rules, 2011 under Rule 3 contemplate

due diligence that has to be observed by an intermediary.

a. Sub-rule (1) of rule 3 mandates Intermediaries to publish rules

and regulations, privacy policy and user agreement for access or usage of the Intermediarys computer resource.
b. Sub-rule (2) of rule 3 mandates the Intermediary to inform

users the kind of information that cannot be hosted, uploaded, modified, published, transmitted, updated or shared.
c. Sub-rule (3) of rule 3 mandates that the Intermediary shall not

knowingly host or publish any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission as specified in sub-rule (2).
d. Sub-rule (4) of rule 3 requires the Intermediary to disable

information that is in contravention of sub-rule (2) within 36 hours, upon obtaining knowledge by itself or on being brought to actual knowledge by an affected person.
e. Sub-rule (5) of rule 3 mandates the Intermediary to inform

users that in case of non-compliance with rules and

regulations, user agreement and privacy policy for access or usage of intermediary computer resource, the Intermediary has the right to immediately terminate the access or usage rights of the users to the computer resource of Intermediary and remove non-compliant information. 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 intermediarys computer resource by any person. (2) Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to 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, pornographic, paedophilic, libellous, invasive of anothers 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;

f.

(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 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): 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 such 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 noncompliance 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 Intermediary and remove noncompliant information..

(6) The intermediary shall strictly follow the provisions of the Act or 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. (9) 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 the 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 or usage of computer resource of the intermediary or other matters pertaining to the computer resources made available by it. The Grievance Officer shall redress the complaints within one month from the date of receipt of complaint.

57.

That the Intermediaries Rules, 2011 by mandating and

requiring Intermediaries to place restrictions on the content posted

on their websites results in placing unreasonable restrictions on the freedom of speech and expression of the citizens of India and goes beyond the limits set by Article 19(2). Towards this, Sub-rule (2) of Rule 3 contains various kinds and classes of Information for which the Intermediary has to inform users, as a matter of due diligence the type of information that cannot be hosted, uploaded, modified, published, transmitted, updated or shared. It is submitted that such information is outside the scope of permissible restrictions under Article 19(2). Furthermore, it is submitted that the grounds for such kinds and classes of Information is making very general and sweeping and worded in broad and vague terms without reference to any existing provision of law to assist or explain how the specific acts can be interpreted or applied. In some instances the grounds do not find mention under any legislative enactment and go beyond the breadth of Section 79 of the IT Act, ostensibly creating new grounds and substantive offenses or/and contraventions.

58.

That indeed the rules mandate that the intermediary must

restrict a users expression or face the force of law for failure to observe due diligence- thus creating additional burden from any law under force. E.g. private person can only sue for defamation but intermediary would be made liable even if the remark was merely disparaging.

59.

It is humbly submitted that the Intermediaries Rules, 2011

while providing for an affected private party to complain about a

posted content to an Internet Intermediary does not afford a right of hearing to the user who posted the content. Even assuming, without admitting, that a hearing is granted by the Intermediary to the User who posted the content the timelines for compliance render the hearing anything but perfunctory and tokenistic. Sub-rule (4) of rule 3 which requires the Intermediary to disable information that is in contravention of sub-rule (2) within 36 hours, upon obtaining knowledge by itself or on being brought to actual knowledge by an affected person may in some instances not provide the user who posted the content 24 hours notice to reply to the complaint of an affected Party.

60.

In Excel Wear vs Union Of India &Ors, AIR 1979 SC 25 this

Honble Court held that Section 25(O) and 25R of the Industrial Disputes Act 1947 were constitutionally bad and invalid as the order passed by the authority had no guidelines to follow, is not subject to scrutiny by any higher or tribunal either in appeal or revision. There was no procedure for review and the authority was not obligated to give reasons. Applying these principles to the present case it can be seen that the procedures under the Intermediary Rules there are no proper legal recourses afforded to persons whose content has been wrongfully taken down. Also there is no procedure to prefer an appeal against the Executive Order

61.

Further the Intermediaries Rules, 2011 also interfere with the

neutral, passive nature of Internet Intermediaries inasmuch as they ambiguously state under sub-rule (4) of Rule 3 that the Intermediary

shall also disable access to the Information on its own knowledge. This requirement of action on discovery is over and above a complaint which may be filed by an affected Party and it goes beyond the principle of exemption from intermediary liability as contained under Section 79 of the IT Act, which is the parent provision. Exemption from liability under Section 79 of the IT Act is granted to Intermediaries only on the basis of their passivity as they are not seen to be the authors of the content. Hence, by inserting a provision for policing information and content, the Intermediaries Rules, 2011 go beyond the ambit of the IT Act, 2000. It is also relevant to note that in case an Intermediary fails to discover or have knowledge by itself of the information then it may be made liable, which is again against the language and intent of Section 79 of the IT Act.

62.

The Petitioner submits that the Intermediaries Rules, 2011

also vest vast censorship powers with Private Intermediaries in the absence of necessary safeguards. These Private Intermediaries serve as essential conduits for the expression of free speech and expression. It is submitted that censorship of speech and expression is permissible under law flowing from the mandate of Article 19(2). However, as held by the Honble Supreme Court in a catena of cases the power of censorship should be exercised under law which contains well defined grounds and with adequate safeguards. The Petitioner submits that the Intermediaries Rules, 2011 are not only vaguely drafted but also fail to incorporate such procedural

safeguards thereby failing to satisfy the constitutional touchstones of reasonable restrictions on the right to speech and expression.

63.

Comparing the provisions in analogous laws of other country

jurisdictions, the European Unions Directive 2000/31 EC directive puts no liability on the intermediary as they act merely as a conduit and furthermore no liability is put on the intermediary to monitor the content:

ARTICLE 12 "Mere conduit" 1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the 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; (b) does not select the receiver of the transmission; and (c) does not select or modify 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.

64.

It is submitted that the Intermediaries Rules, 2011 contain

apparent contradictions and inconsistencies which create ambiguity and may lead to overboard application:
a. Sub-rule (4) of Rule 3 states that the Intermediary shall act

within thirty six hours on receiving a complaint from an Effected Party; in contrast, sub-rule (11) of Rule 3 states that the Grievance Officer of the Intermediary will redress the complaints of the Affected Party within a period of one month. Hence, the time limits for initiating and completing action remain unclear, inconsistent and mutually contradictory.
b. There are also ambiguities in sub-rule (11) of Rule 3 wherein it

states that the Intermediary shall publish a mechanism on its website by which an affected party may notify the

Intermediary. Such a mechanism has not been prescribed or adequately explained by the Intermediaries Rules, 2011.

65.

That the Intermediaries Rules, 2011, under Rule 3 (7) also

mandate the Intermediaries to provide information to Government

agencies. Such sharing of information, albeit on a written request adversely affects the privacy of citizens. Rule 3 (7) does not make any reference to the specific Rules made under the Telegraph Act or under the Information Technology Act, 2000, for interception of communications/information and creates an additional power to intercept communications and breach individual privacy in the absence of any safeguards. It is submitted that such a power permitting invasion of privacy exists independently of any procedural safeguards and is contrary to Articles 14, 19 and 21.

66.

Rule 3(7) also refers to cyber security incident, as a ground

for providing information to the Government. Rule 2(d) defines the said term as follows: Cyber security incident means any real or suspected adverse event in relation to cyber security that violates an explicitly or implicitly applicable security policy resulting in unauthorized access, denial of service or disruption, unauthorised use of a computer resource for processing or storage of information or changes to data, information without authorisation;

The said definition of cyber security incident is vague and all encompassing and is liable to misuse and thus has an adverse effect on privacy of citizens.

67.

The Petitioner submits that the only empirical study conducted

on the effect of the Intermediaries Rules, 2011 has been by the Center for Internet and Society, Bangalore which has concluded that the takedown mechanism prescribed by the Intermediary Rules, 2011 has a chilling effect on free expression. Of the 7 intermediaries to which takedown notices were issued and which were examined as

part of the study, 6 intermediaries removed and disabled the targeted information or communication links despite the legitimacy of the expressions contained therein and also despite apparent flaws in the takedown notices that were sent to them. A copy of the Report, Intermediary Liability in India: Chilling Effects on Free Expression on the Internet, 2011 is annexed herein and is marked as ANNEXURE P/15.

68.

The analogous takedown mechanisms which already exist

under law recognize that components of natural justice safeguards should be present even when intermediaries are made aware of illegal activities. This is principally contained under Rule 74 of the Copyright Rules, 2012 which state that though an intermediary is obligated to take down content however the take down complaint has to be confirmed with court order within 21 days of the complaint.

69.

It is further submitted that since the Intermediary Rules, 2011

have been made there has been a considerable rise in violations of the freedom of speech and expression guaranteed under Article 19(1)(a). This is visible in two international studies which specifically cite the Intermediary Rules, 2011 as causes for the decline in the freedom of speech and expression as present in the country. These include the 2012 Annual Report of Freedom House on India and the 2011 Report of Reporters without Borders, which are both annexed herein and marked as Annexure P/16.

70.

The exemption from liability based on inherent passivity of the

intermediary under Section 79, IT Act, 2000, is based on the EU Directive 2000/31 (E-Commerce Directive). Article 12 of the said Directive labels intermediaries as mere conduits and exempts them from liability on the condition of their passivity. Article 15 states that intermediaries have no general obligation to monitor.

71.

In

Sabam v Scarlet C70/10 the Court of Justice of the

European Union ruled that a proposed measure ordering an Internet service provider to install a system of filtering of all electronic communications and blocking certain content in order to protect intellectual property rights was in breach of European law.

72.

Under sub-rule (4) of rule 3 of the Intermediary Rules,

intermediaries are obligated to take action when they discover any offensive material. This is an obligation to police and monitor information making, and thus makes them the de facto censor, thereby hampering the fundamental right of freedom and expression guaranteed to all citizens.

73.

That it is pertinent to note that the intermediary cannot be

deemed to be capable of determining the illegality of the material. This is because legal knowledge is needed to interpret statutes and rules there under, whose burden cannot be cast on individual intermediaries; therefore intermediaries cannot be supposed to be qualified or equipped to take down information by their own discovery, especially when such information contains exercises of public expression by the citizenry.

74.

The rules thus suffer from illegality and are patently unfair as

they do not offer any guidelines to ensure legitimacy of complaint (e.g. Blocking rules complaint form) and do not require party lodging complaint to prove content is illegal. Since the matter has not been adjudicated, the illegality of the content cannot be determined. Furthermore, it is not mandatory for the intermediary to inform users regarding the removal of his information. The intermediary is simply forced to act within 36 hours. It is easier for the intermediary to takedown information once a complaint is received and thereby avoid liability without even prima facie examining the content and satisfying themselves about the validity of the complaint. Once a complaint is received they can no longer claim to be an innocent disseminator. In effect the provisions are so one sided that on the part of the intermediaries, it would be more practical to pull out the content, even if the intermediary may personally feel that such an action is essentially arbitrary, unreasonable and violative of the users 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 intermediarys site with a reasonable certainty that the service provider or intermediary will tend to block or remove the content as an easier alternative to avoiding controversy, prosecution and time and resource consuming legal proceedings.

75.

It is in this connection that we notice that the intermediary is

given full immunity if it acts on complaints. In fact, not acting would make them liable. This complex power/burden on the intermediary has a chilling effect on free speech. Thus, the Rules are bad for incompleteness as there are no guidelines set for (1) counter claims (2) no procedure to follow when an intermediary disagrees with a request. It gives one person the unbridled power to restrict the fundamental freedom of another. Also, the effect of the rule will effectively prevent disputes from going to court.

76.

The Intermediary Rules also leads to arbitrary private

censorship. This much is made clearing an academic article which examined the subject: In practice it is the interest of a hosting provider who 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 Can 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:

77.

It is useful in this context to take note of the Declaration of

the Committee of Ministers on Human Rights and the Rule of Law in the Information Society [CM(2005)56 final 13 May 2005] of the Council of Europe which explained that: Freedom of expression, information and 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.

78.
the

The Petitioner also seeks to highlight Press Reports by which Honble Minister for Communications and Information

Technology in a private meeting requested the executives of various internet intermediaries to pre-screen content. It is submitted that such an extra-legal measure which plainly conflicts with the dicta of the Supreme Court prohibiting pre-censorship is impermissible. Moreover prescribing such a function to a private intermediary vests it with a judicial function to determine the illegality of content in the absence of any objective standards. Though subsequent statements have been made by Respondent No.1 stating that there are no plans to mandate the pre-screening of content, the announcement and such extra-judicial directives given in a closed door meeting have contributed to the chilling effect on free speech and expression online. It is submitted that these apprehensions are not illusory or imaginary. The statements made off-and-on record by the Union Minister concerned makes it apparent that pre-censorship is what is expected of intermediaries and service providers; the number of prosecutions launched under the impugned provisions across the country indicate to the intermediary and service provider the implication of not responding to governments prompting; in fact they are testimony to the intolerance on the part of ruling dispensations to any form of critical examination or comment of their activities. Copies of the various news reports as to Pre-screening are collectively annexed herein and are marked as ANNEXURE P/17(Pages ).

79.

That on 18.03.2013 the Department of Electronics and

Information Technology issued a Clarification on the Information Technology (Intermediary Guidelines) Rules, 2011 under which it stated that the words ..shall act within thirty-six hours as mentioned in sub-rule (4) of Rule 3 have an intended meaning that the intermediary shall respond or acknowledge to the complainant within thirty six hours of receiving the complaint/grievances about any such information as mentioned in sub-rule (2) of Rule 3 and initiate appropriate action as per law. Further, the Grievance Officer of the intermediary shall redress such complaints promptly but in any case within one month from the date of receipt of complaint in accordance with sub-rule (11) of Rule 3. It is important to note here that the clarification dated 18.03.2013 was published on the website of the Department of Electronics and Information Technology was not through a gazette notification and does not have the force of law. This is because Section 79 allows for delegated legislation to be made by the Respondent through the making of rules which is published in the official gazette. Even otherwise the gazette notification which though acknowledges the ambiguity present in the Information Technology (Intermediary Guidelines) Rules, 2011 does not, in effect, amend them.

80.

The Parliamentary Committee on Delegated Legislation in its

31st Report dated 21.03.2013 examined the vires of, (i) The Information Technology (Reasonable security practices and

procedures and sensitive personal data or information) Rules, 2011; (ii) The Information Technology (Intermediaries Guidelines) Rules,

2011; (iii) The Information Technology (Guidelines for Cyber Cafe) Rules, 2011; and (iv) The Information Technology (Electronic Service Delivery) Rules, 2011 stated at several instances how these rules are ultra vires the principal legislation. That the Committee on Delegated Legislation observed with respect to the Information Technology (Intermediaries guidelines) Rules, 2011:
a.

Rule 3(2): The Committee would suggest that in order to remove ambiguity/misgivings in the minds of the people, the definition of those terms used in different laws should 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 position may be clarified in the rules particularly on the process for take down of content and there should be safeguards to protect against any abuse during such process

81.

It is respectfully submitted that Section 66A of the Information

Technology Act, 2000, the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 and the Information Technology (Intermediaries Guidelines) Rules, 2011 collectively by promote uncertainty stemming from ambiguous provisions which allows erroneous applications. Due to the uncanonised power contained under the impugned provisions, they create a reasonable apprehension in a speaker that he will be

held liable for speech that should properly be protected under Article 19(1) (a). This is especially problematic as the closer the speech is to the line between protected and unprotected, the more pronounced this uncertainty will be. Given the existence of both ambiguity and error, would-be speakers of statements critical of policy makers and people in power might well decide that it would be practically expedient not to speak rather than to risk liability. Speech that is actually even protected under Article 19(1) (a) will therefore be discouraged and avoided.

82.

That the impugned legal provisions clearly have chilling effect

on free speech as inter alia due to their vague drafting they make speakers uncertain of a laws application. This uncertainty may translate into a variety of risks, any of which may cause a speaker to remain silent. For example, a speaker may be deterred by:
a. the risk of wrongful criminal conviction and sanction;

b. the litigation costs of defending himself in criminal, civil, or

administrative procedures, regardless of their outcome.

c. the personal and reputational costs of defending against

criminal, civil, or administrative procedures, regardless of their outcome.

d. the costs of obtaining legal advice prior to speaking;

e. the threat of investigation or surveillance, whether or not it

results in legal proceedings;

Hence, the detrimental effects of the impugned provisions, on the freedom of expression under Article 19(1) (A), are directly contrary to the same. Further, such negative effects also by allowing frivolous prosecution result in a violation of Article 21.

83.

The Petitioner also submit that the United Nations Special

Rapporteur on Freedom of Expression Frank LaRue stated in his widely-cited Report on the Promotion and Protection of the Right to Freedom of Opinion and Expression dated 10th August, 2011 that, by vastly expanding the capacity of individuals to enjoy their right to freedom of opinion and expression, which is an enabler of other human rights, the Internet boosts economic, social and political development, and contributes to the progress of humankind as a whole. 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 10thAugust, 2011 is annexed herein and marked as Annexure P/18(Pages ).

84.

That therefore the constitutionality of the impugned sections

and rules is under challenge on several grounds. The first would be on the ground of lack of clarity or vagueness of the impugned statute and rules thereunder and the second on the ground of the need to define ambiguous terms.

GROUNDS

85.

The Petitioners seek to challenge, Section 66A of the

Information Technology Act, 2000, the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 and the Information Technology (Intermediaries Guidelines) Rules, 2011 on the following amongst other grounds, which are taken in the alternative and without prejudice to one another: SECTION 66A
A. FOR THAT as a criminal, cognizable offence carrying a three year

prison term Section 66A of the Information Technology Act, 2000 is contrary to constitutional protections under Articles 14, 19 and 21 of the Constitution of India.
B.

FOR THAT Clause (a) of Section 66A is itself is contrary to Article 19 (1) of the Constitution of India, its constituents do not fall within the

permissible categories of restriction Art 19(2)

and is beyond the

reasonable restrictions imposed under Article 19 (2). The said clause is very widely worded and penalizes sending information which is grossly offensive and has a menacing character. Both words are not defined; whether a piece of information is offensive or menacing is very subjective and hence defies a standard. Further in this clause there is no need to show intention as reflected by the words for the purpose of in the other two clauses (b) and (c) of Section 66A. While these sub clauses require the offender to possess the knowledge of crime being committed, the broad terms used under the impugned Section sweep any person under its ambit and is therefore open to arbitrary application. Further, Clause (a) of Section 66A uses expressions such as grossly offensive and menacing which are not only impossible to define but also highly subjective by individual standards.
C. FOR

THAT Clause (b) of Section 66A is contrary to Article 14 and 21

of the Constitution of India because without defining the terms which have been made offences, penalty Section 66A has been introduced, which is totally impermissible. It is also violation of Article 19(1) of the Constitution of India and is beyond the reasonable restrictions imposed under 19 (2). The said clause has three ingredients : i) knowledge that the information is false ii) intent to cause annoyance, inconvenience etc iii) persistently sending by a computer resource or communication device.

As such clause (b) prescribes penalties for offences such as annoyance, criminal intimidation, insult and promoting hatred or ill- will between groups. Thus, prescribing the same punishment for annoyance, as well as criminal intimidation, by bundling of disparate terms within the same clause is not only against the requirement that criminal penalties for major and minor offences be proportionate, it leads to confusion and misuse. Moreover, some of these offences are already covered under various sections of the Indian Penal Code, 1860 (IPC). As the threshold requirements under Section 66A as a whole are lower due to the inclusion of the terms insult and annoyance and open to subjective

interpretation, misuse and confusion is widespread.

D. FOR THAT clause (c) of Section 66A Clause (c) of the section is

meant to be an anti-spam provision but does not do justice to the requirement of either users or industry. It is respectfully stated that in its present form it is contrary to Article 19(1) of the Constitution of India, does not fall within permissible categories of restriction and is beyond the reasonable restrictions imposed under 19 (2) as it requires intent to annoy, cause inconvenience, but does not define the said criminal offences. It is respectfully stated that annoyance is only one part of a multi-factor test for nuisance and the punishment is vastly different, for example under Section 290 of the Indian Penal Code 1860, the punishment for nuisance if not otherwise specified is a fine of Rs. 200.

E.

FOR THAT further, to "deceive or mislead the addressee or recipient about the origin of such message implies that if an email is forwarded after deleting the name of the sender it could well constitute this offence. In private group emails with

jokes/articles etc which are circulated/ forwarded, in a chain of friends, often senders do not even know the origin of a particular mail. In addition as would befit a provision to prevent spam, there is no requirement that the electronic communication to be unsolicited, or sent in bulk. It is respectfully stated that a civil penalty to penalise spam as has been specified under the Telecom Commercial Communications Customer Preference Regulations, 2010.
F.

FOR THAT the provisions of Section 66A are contrary to Article 14 of the Constitution of India, in most instances penalties for the same offences are higher in the IT Act as compared to those in the IPC. Thus, if an offence is committed through an electronic medium such as the internet, it would attract a higher penalty than otherwise. For instance, causing threatening someone with injury to their reputation through email attracts a penalty of three years imprisonment under the IT Act while the same offence when committed verbally attracts a penalty of two years imprisonment under the IPC (Section 503 and 506). This differentiation between punishments for the same offence without any reasonable basis for such distinction cannot be protected, is invidious and is an infringement of Article 14.

G.

FOR THAT the internet has been an important democratising factor in terms of access to speech. That the low threshold for criminal prosecution concerning persons using the internet to express themselves as opposed to the same expression made through newspapers, television and face to face interactions is unreasonable. It is pertinent to mention that offences under 66A are cognizable. It is respectfully stated that this leaves an unfettered discretion regarding arrest to police personnel at the first instance and makes the Section liable to wanton misuse.

H.

FOR THAT the view taken in the United States of America regarding free speech is expansive, and virtually all attempts to regulate the Internet have been struck down. Most recently the Communications Decency Act 1996 which sought to criminalise the transmission of "obscene or indecent" messages to recipients under 18 was found to be overly broad, thus violating the freedom of speech provisions of the First Amendment (Reno v. American Civil Liberties Union). The Court again ruled that any undefined limitations on the Internet were unconstitutional in American Civil Liberties Union v. Ashcroft (2002). Furthermore, threats and harassing speech sent online are dealt with under regular hate laws, laws against inciting violence, etc, as opposed to laws specifically engaged with the internet. It is respectfully submitted that the principles to strike down such laws in the US are applicable in Indian context and under Indian laws also.

I.

FOR THAT the Union of India has drawn false equivalence between the terms of Section 66A, IT Act and other statutes. These equivalent laws in the United Kingdom are the Communications Act, 2003 (s. 127) and the Malicious

Communications Act 1988 (s.1). It is pertinent to mention that for both the legislations mentioned above, the penalty is up to 6 months imprisonment or to a maximum fine of 5000 or both. On the other hand Section 66A imposes even greater, unduly excessive, unwarranted and arbitrary penal consequences.

J.

FOR THAT a comparison of similar laws demonstrates the differentia between Section 66A of the IT Act and legislation alleged to be similar:

Provision legislation

in Terms referenced Section 66A

in Points of distinction

United Kingdom The Communicati on Act, 2003 Section 127

Improper use of public electronic communications network (1)A person is guilty of an offence if he (a)sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or (b) causes any such message or matter to be so sent. (2)A person is guilty of an offence if, for the purpose of causing

1. The leading case with respect to Section 127 of the British Communication Act, 2003 is the case of Paul Chambers v. Director of Public Prosecutions [2012] EWH2 2157 in which the prosecution of a tweet came under heavy criticism. In any case the constitutionality of Section 127 was not challenged as the United Kingdom does not have a formal and written constitution. 2. Due to the widespread condemnation caused due to the case, the Director of Public

annoyance, inconvenience or needless anxiety to another, he (a)sends by means of a public electronic communications network, a message that he knows to be false, (b)causes such a message to be sent; or (c)persistently makes use of a public electronic communications network. (3)A person guilty of an offence under this section shall be liable, 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)).

Prosecutions first published the, Interim guidelines on prosecuting cases involving communications sent via social media on 19 December 2012. These guidelines tremendously watered down and provided prosecution guidance for the application of Section 127 to internet content. These guidelines expressly recognised the chilling effects of mere prosecutions under Section 127 and noted that, There is a high threshold that must be 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 20th June, 2013 on similar lines recognising the chilling effect on free speech calling on prosecutors 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 (96511) 521 U.S. 844 (1997). The Respondent, UOI is relying upon the

United States of America Telecommuni cations Act, 1996 Section 502 included provisions of the Communicati ons Decency Act of 1996

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

(to be codified at 47 U.S.C. Section 223(a) to (h)

(ii) 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) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication; (2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under title 18 or imprisoned not more than two years, or both.

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 Governments right to investigate and prosecute the obscenity or child pornography activities prohibited therein. After this decision, all references to "indecent transmission" provision and the "patently offensive display" were amended to child pornorgraphy. 3. It is also pertinent to examine that the provisions under Section 223(a)(1)(A) do not merely criminalise speech which is abusive, threatening or harassing but criminalise it when, there is communication which already is obscene or contains child pornography. Here, the existence of child pornography or obscenity is relevant for constitution an offence as opposed to mere abuse, threats, or harassment.

K.

FOR THAT even the ingredients for the offences contained under Section 66A have been left undefined and hence their prosecution is on the subjective assessment of the police authorities as opposed to any objective criteria. Such wide ranging and unbridled discretion is contrary to Articles 19, 14 and 21.

L.

FOR THAT Section 66A does not contain or define one single offence, but include multiple offences without clear, specific and objective definition of any of the offences outlined in the provision itself. By failing to disclose any definition for the phrases under Sec. 66A, there is a complete absence as to the ingredients necessary for constituting the offence which leads to wide charging discretion and arbitrary application leading to a violation of Articles 14 and 21.

M.

FOR THAT several phrases under Sec. 66A are wholly vague, unclear and undefined and inasmuch go outside the breadth of the reasonable restrictions which are contained under Article 19(2) which can be placed upon the right to freedom of speech and expression as contained under Article 19(1)(a). Hence, Section 66A is contrary to the fundamental right to freedom of speech and expression.

N.

FOR THAT even for phrases contained under Sec. 66A for which offences and ingredients are contained under other laws such as the phrase, criminal intimidation for which an offence is contained under Section 503 of the Indian Penal Code, 1860,

there is no reference to Section 503 contained alongwith the phrase. In such situations, the application of the offence of criminal intimidation under Section 66A of the IT Act, 2000 and Section 503 of the Indian Penal Code, 1860 will result in variance in outcome and discriminatory application for speech in the absence of any reasonable differentia. Hence, such discriminatory application inasmuch results in a violation of right to equality as enshrined under Article 14.
O.

FOR THAT phrases which exist under Sec. 66A do not contain any exceptions or safeguards as are provided for similar offences contained other penal laws and lead to arbitrary and discriminatory treatment for the same speech based solely on the medium in which it is made. For instance the offence of defamation as contained under Section 499 of the Indian Penal Code, 1860 contains a list of exceptions from the offence, which do not find mention under Section 66A, which contains phrases such as annoyance, ill will and grossly offensive leading to an offence for the same speech. Hence the absence of any safeguards or exceptions under Section 66A conflicts with Articles 14, 19 and 21 of the Constitution.

P.

FOR THAT Section 66A lacks rational nexus with the purpose which is sought to be achieved as most offences for which the phrases which have been used, already exist in a more detailed and considered manner under other enactments which apply to speech carried out offline as well as online. Due to its application it even results in an excessive increase in the eventual

punishment merely because the speech has been made online. For instance Section 294 IPC which contains the offence for singing obscene songs, gestures and signs contains a punishment on conviction for only 3 months, whereas Section 66A of the IT Act, contemplates a punishment for a period of imprisonment which extends to three years. Hence, the same speech can lead to offences under Section 66A of the IT Act and Section 294 of the Indian Penal Code, with completely distinct terms of imprisonment for the same speech. Hence, Section 66A is clearly superfluous and contrary to Articles 14, 19 and 21.
Q.

FOR THAT Section 66A is attracted solely on online speech and no such analogous umbrella provisions exist for speech which is made through printed matter or otherwise carried offline. Hence, speech which may otherwise be legal offline invites prosecution merely because the same speech is made online. Such discriminatory treatment for the same speech is clearly contrary to Articles 14, 19 and 21.

BLOCKING RULES, 2009

R.

FOR THAT for the reasons as set out in this petition, the Blocking Rules, 2009 are liable to be read in accordance with constitutional provisions and principles of natural justice or set aside as void, illegal and unconstitutional as in their present form they are contrary to Articles 14, 19 and 21 of the Constitution of India.

S.

FOR THAT Rule 8(1) which, states that the Designated Officer shall make reasonable efforts to identify, the person or intermediary who has hosted the information and issue such person or intermediary a show cause notice to submit a reply and clarifications as to why the website should not be blocked. Here it is pertinent to mention that the person and the intermediary hosting the information is not the author nor the owner of the content and hence the author or owner has no notice or hearing as to the content being blocked. Hence, no hearing or notice is issued to the author/owner, which results in a complete violation of natural justice and is contrary to articles 14, 19 and 21 of the constitution.

T.

FOR THAT under Rule 5 of the Blocking Rules, 2009, there is no legal provision for the communication of the Blocking Order to the Author who is the primary affected party.

U.

FOR THAT there is also a complete absence of natural justice under the Blocking Rules, 2009 due to the absence of communication of the Blocking Order or even the opportunity of a post decisional hearing. Hence, the owner and the author of the content has no opportunity for understanding the reasons for the censorship of content and the blocking order passed by the Designated Officer. Additionally, there is also no provision in the rules to file an appeal against such a blocking order. This is plainly contrary to Articles 14, 19 and 21 of the Constitution of India.

V.

FOR THAT under the Blocking Rules, 2009, Rule 14 envisages a Review Committee which is mandated to meet at least once every two months and record its finding whether the directions issued under the rules are in accordance with Sec. 69A. However as per RTI responses cited in the present petition, no such review committee, its date of meetings or even its deliberations have been made available resulting in a violation of the fundamental right to freedom of speech and expression as contained under Article 19(1)(a).

W. FOR THAT Rule 16 of the Blocking Rules, 2009 further states that

information regarding any request, complaints and actions shall be kept strictly confidential. It is respectfully submitted that such secretive banning of content is completely opposed to any norms of natural justice where no notice has been provided to the author of the content. Additionally, the Supreme Court has recognized in a several judgments that the right to speech and expression includes the right to read and receive information. Hence, the absolute secrecy with which such blocking orders are made, without any public notice and in the absence of any reasons offends the right to freedom of speech and expression as enshrined under Article 19(1)(a).
X. FOR THAT the Blocking Rules, fall outside the scope of reasonable

restrictions under Article 19(2) as they do not contain any safeguards in the blocking of websites. Besides the absence of any such safeguards, the Blocking Rules, 2009 do not contain

any requirements for the Central Government to provide the reasons to what offences are committed in respect of the Websites for which blocking orders are issued.
Y. FOR THAT the Blocking Rules, 2009 result in discriminatory

treatment of e-books and books- or more generally speech that is published on the internet from speech which is published physically on paper etc. Such discrimination in the absence of any reasonable differentia is in contradiction with Article 14 which contains the right to equality to equally placed speech. For instance, the book banning provision that is contained under the power to confiscate a publication under Section 95 of the Code of Criminal Procedure, 1973 may be exercised when, (a) the publication of which is punishable under section 124A or section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code (45 of 1860); and (b) by an order of the State Government may, by notification, state the grounds of its opinion for the confiscation. Section 96 of the Code of Criminal Procedure, 1973 further provides a statutory right of Appeal to the State High Court impugning the Order of Confiscation. Such an appeal can be made not only by the author but by any person in recognition of the fundamental right of speech and expression includes the right to read and receive information. The Petitioner submits that the Blocking Rules, 2009 by failing to incorporate such safeguards not only conflict with the right to freedom of speech and expression under Article 19(1)(a) but also fails to satisfy the constitutional touchstones of equality

under Article 14 by discriminating against content which hosted on the Internet. INTERMEDIARIES RULES, 2011 FOR THAT Rule 3(2) , 3(3), 3(4) and 3(7) of the Intermediaries Rules, 2011 are violative of Articles 14, 19 and 21 of the Constitution of India. That the said Intermediaries Rules, 2011 are liable to be quashed and declared unconstitutional as they place unreasonable restrictions on the exercise of free speech and expression as well as violate the right to privacy.
AA. FOR THAT Rule 3(2) of the Intermediary Rules requires private

Z.

companies to exercise active censorship by seeking out under Rule 3(2) inter alia content that: is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of

anothers privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever. That none of the above or other terms under Rule 3(2) are defined. Inasmuch as failure to comply with the said provisions exposes intermediaries to civil and criminal prosecution, private companies and individuals are incentivised to act conservatively in censoring all content that could conceivably fall within any of the categories of Rule 3(2).

BB.FOR THAT the impugned Intermediaries Rules, 2011 violate the

fundamental right to freedom of speech and expression granted to citizens and are unconstitutional inasmuch as Sub-rule (4) of rule 3 of Intermediaries Rules, 2011 mandates that the intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2). 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. Subrule (4) of rule 3 which requires the Intermediary to disable information that is in contravention of sub-rule (2) within 36 hours,

CC.

DD.

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 anothers 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 subrule (2) of rule 3 is highly vague and open for wide interpretation. Furthermore, it goes way beyond the restrictions imposed under Article 19(2). FOR THAT the Intermediaries Rules, 2011 are liable to be quashed and declared unconstitutional as they place

FF.

unreasonable restrictions on the exercise of free speech and expression as they place a burden on the Intermediaries to decide on the lawful nature of the content under sub-rule (2) of Rule 3 without legislative guidance as a pre-condition for exemption from liability. Intermediaries, on receiving a complaint, to ensure that they continue to receive the protection offered by Section 79 of the IT Act, will be forced to disable access to the

content posted by a user within thirty six hours irrespective of the illegality. Thus, under the Intermediaries Rules, 2011 any person who is critical of an article or a blog post can raise a complaint with an Intermediary, and this will result in removal of the content by the Intermediary. Thus, the direct effect of the rules will be strict censoring of content posted online by users. The rules will have a direct effect on the fundamental right of freedom of speech and expression guaranteed under Article 19(1) of the Constitution of India. Article 19(1) of the Constitution of India guarantees all citizens the right to freedom of speech and expression. 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

GG.

struck down as unconstitutional by a competent court. The Honble Supreme Court has held in Express Newspapers (Private) Ltd. and Anr. Vs. The Union of India (UOI) and Ors., AIR 1958 SC 578 that if any limitation on the exercise of the fundamental right under Art. 19(1)(a) does not fall within the four corners of Art. 19(2) it cannot be upheld. The Honble Court

further held that there can be no doubt that freedom of speech and expression includes freedom of propagation of ideas. It is submitted that in judging whether a statute is constitutional the effect that the statute will have on the fundamental rights of citizens has to be examined. The effect of Intermediaries Rules, 2011 will be lead to strict censorship by Intermediaries of content posted by users. Such an action by the intermediaries will affect the fundamental right of freedom of speech and expression guaranteed by Article 19(1) of the Constitution of India. 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

HH.

some instances the grounds do not find mention under any legislative enactment and going beyond the breadth of Section 79 of the IT Act ostensibly creating new grounds and substantive offenses or/and contraventions.

II.

FOR THAT this Honble Court considered the issue of restrictions on freedom of speech in detail in Sakal Papers (P) Ltd. Vs. The Union of India, AIR 1962 SC 305, has held that the fundamental right to speech and expression may not be interpreted in a narrow and pedantic manner. Hence as the Intermediaries Rules, 2011 go beyond the permissive limits to freedom of speech and expression that can be imposed by a statute. Rule 3 of the Information Technology (Intermediaries guidelines) Rules, 2011 is violative of the fundamental right to freedom of speech and expression guaranteed under Article 19(1) of the Constitution of India and is liable to be struck down. 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,

JJ.

invasive of anothers privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner

whatever. The subject matter of information listed in sub-rule (2) of rule 3 is highly subjective and is not defined either in the rules or in the Act. The action of the Respondent No. 1 in notifying the Intermediaries Rules, 2011 rules is highly unreasonable and arbitrary. FOR THAT Sub-rule (4) of Rule 3 mandates that the intermediary, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person about any such information as mentioned in sub-rule (2) above, shall act within thirty six hours to disable such information that is in contravention of sub-rule (2), does not provide for an opportunity to the user who has posted the content to reply to the complaint and to justify his case. The rule that mandates the intermediary to disable the content without providing an opportunity of hearing to the user who posted the content is highly arbitrary. Moreover, the rules result in endowing an adjudicating role to the intermediary in deciding questions of fact and law, which can only be done by a competent court. Such a provision of the rules is highly unreasonable and arbitrary. 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

KK.

LL.

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. FOR THAT the Intermediaries Rules, 2011 are liable to be quashed and declared as unconstitutional as violate the fundamental Right to Privacy as provided under Article 21 of the Constitution of India. Sub-rule (7) of rule 3 mandates the intermediary, when required by lawful order, to provide information or any such assistance to Government Agencies who are lawfully authorised for investigative, protective, cyber security activity. The requirement for lawful order is modified while

MM.

mandating that the information or any such assistance shall be provided for the purpose of verification of identity, or for prevention, detection, investigation, prosecution, cyber security incidents and punishment of offences under any law for the time being in force, on a request in writing stating clearly the purpose of seeking such information or any such assistance. The requirement of giving information about users by the intermediary on a mere written request from an agency and in the absence of safeguards violates the right to privacy of citizens.

NN.

FOR THAT Sub-Rule 7 of the Intermediaries Rules, 2011, does not make any reference to the specific Rules made under the Telegraph Act or under the Information Technology Act, 2000 for interception of communications/information and create an

additional power to intercept communications and breach individual privacy in the absence of any safeguards. It is humbly submitted that such this power for invasion of privacy exists independently of any procedural safeguards and is contrary to Articles 14, 19 and 21.

OO.

FOR THAT the impugned Intermediaries Rules, 2011 are liable to be quashed as they are ultra vires the parent provision, viz. Section 79 of the IT Act. The Central Government obtains the source of power to issue the Intermediaries Rules, 2011 from the provisions of the Information Technology Act, 2000. The rule

making power has to be strictly confined to the boundaries specified as per the Act and cannot result in expanding the scope of the Act itself. Chapter XII of the Information Technology Act, 2000 (as amended) provides Exemption from Liability of Intermediaries in Certain Cases. This exemption is subject to certain conditions to be observed by the Intermediaries. The

Government obtains the source of power to issue these rules from two provisions of the Act : S.79 (2) (c) ...the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf. S.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 parent provision.

PP.

FOR THAT the impugned Intermediaries Rules, 2011 are liable to be quashed as they are ultra vires the parent provision, viz. Section 79 of the IT Act. These guidelines formed under Section 79 can only be related to due diligence to be observed by the intermediary while discharging its duties under the Act. But the Intermediaries Rules, 2011 have widened the scope of the Act by legislating on information that can be posted by a user and listing a much broad list of information that can be considered as unlawful. The Intermediaries Rules, 2011 go beyond controlling intermediaries and result in controlling the users who post content.

QQ.

FOR THAT the abovementioned provisions of the Intermediaries Rules, 2011 are liable to be quashed as they are ultra vires the parent provision, viz. Section 79 of the IT Act. The Honble Supreme Court has held in Agricultural Market Committee Vs. Shalimar Chemical Works Ltd. (1997)5 SCC 516that the delegate which has been authorized to make subsidiary Rules and Regulations has to work within the scope of its authority and cannot widen or constrict the scope of the Act or the policy laid down thereunder. It cannot, in the garb of making Rules, legislate on the field covered by the Act and has to restrict itself to the mode of implementation of the policy and purpose of the Act. In

view of the law as laid down in the aforementioned judgments, Respondent No. 1 has acted beyond its powers vested by the IT Act, 2000 in framing the Intermediaries Rules, 2011.

The Intermediaries Rules, 2011 are in excess of the provisions contained in Section 79 of the Act as amended. Various provisions contained in the Intermediaries Rules, 2011 have, in fact, made additions to the provisions in Section 79 of the Act. Rules have thus added and amended the provisions in the Act. Rules notified by the respondents are ultra vires of the Information technology Act, 2000 and are liable to be struck down.
RR.

FOR THAT the impugned Intermediaries Rules, 2011 are liable to be quashed as they are ultra vires the provisions of Section 69 of the IT Act. Section 69 of the IT Act, 2000 provides the power to issue directions for interception or monitoring or decryption of any information through any computer resource. Sub-section (2) of Section 69 provides for procedures and safeguards subject to which such interception or monitoring may be carried out. The Information Technology (Procedure and Safeguards for

Interception, Monitoring and Decryption of Information) Rules, 2009 were notified by the Government to provide for such safeguards and procedures. These rules enshrine the guidelines prescribed by the Honble Supreme Court in Peoples Union of Civil Liberties (PUCL) Vs. Union of India (UOI) and Anr., (1997)1 SCC 301.These rules mandate that such interception or

monitoring of information can be carried out by an order by an order issued by a competent authority. The competent authority to issue such an order under these rules is the Secretary in the Ministry of Home Affairs, in case of Central Government or the Secretary in charge of the Home Department, in case of a State Government or Union Territory. Sub-rule (7) of rule 3 that

mandates an intermediary to provide information does not have any such safeguards and is in violation of the provisions of the Act and the rules issued thereunder. The Intermediaries Rules, 2011 being ultra vires of Section 69 of the IT Act and equally violative of the safeguards for the right to privacy under it, is liable to be struck down.

SS.

FOR THAT the Intermediaries Rules, 2011 also vest vast censorship powers with Private Intermediaries in the absence of necessary safeguards. These Private Intermediaries serve as essential conduits for the expression of free speech and expression. It is submitted that censorship of speech and expression is permissible under law flowing from the mandate of Article 19(2). However, as held by the Honble Supreme Court in a catena of cases the power of censorship should be exercised under law which contains well defined grounds and with adequate safeguards. Hence, the power to confiscate a publication under Section 95 of the Code of Criminal Procedure, 1973 is may be exercised when, (a) the publication of which is punishable under

section 124A or section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code (45 of 1860); (b) by an order of the State Government may, by notification, state the grounds of its opinion for the confiscation. Section 96 of the Code of Criminal Procedure, 1973 further provides a statutory right of Appeal to the State High Court impugning the Order of Confiscation. The Petitioner submits that the Intermediaries Rules, 2011 are not only vaguely drafted but also fail to incorporate such procedural safeguards failing to satisfy the constitutional touchstones of reasonable restrictions on the right to speech and expression and hence are liable to be quashed.

TT.

FOR THAT the purported public consultation resulting in the formation of the Intermediaries Rules, 2011 has been carried out in an unreasonable and arbitrary manner.

UU.

FOR THAT the Intermediaries Rules, 2009, Blocking Rules, 2009 and Section 66A of the IT Act, which have penal consequences, contain vague and ambiguous terms, thus ought to be quashed for being arbitrary and thus infringing upon Article 14, 19 and 21 of the Constitution of India.

THE CONSTITUTIONALITY OF THE IMPUGNED SECTION AND RULES ON GROUNDS OF EXCESSIVE VAGUENESS VV. FOR THAT it was held in the case of State of Madhya Pradesh v. Baldeo Prasad AIR 1961 SC 293 by this Honble 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: 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 to 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

XX. FOR THAT Furthermore, in the matter of Kartar Singh v State of Punjab, 1994 SCC (3) 569, the Honble 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 application. YY. FOR THAT Further in the matter of Tarsem Singh v Union of India (1995) 115 PLR 34 it was held that: the law which is vague is void. The laws should give a 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. ZZ. FOR THAT That under US Constitutional Law, a statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand. This is because it deprives citizens of their right without fair process, violating due process. In Smith v Gougen 415 U.S. 566 (1974), the court held that the term treats contemptuously did not provide a readily ascertainable standard of guilt and found that the statutory language used may be said to encourage arbitrary and erratic arrests and convictions. Inherently vague statutory language permits such selective enforcement, thus declared it void for vagueness. AAA. FOR THAT in Winters v New York 333 U.S. 507 (1948) the court held that where the statute uses words of no determinative meaning, or the language is so general and indefinite as to embrace not only acts commonly recognized as reprehensible, but also others which it is unreasonable to presume were intended to be made criminal, it will be declared void for uncertainty. It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against.

It was held in the said case that where a statute is so vague as to make criminal an innocent act, a conviction under it cannot be sustained. BBB. FOR THAT In Reno v American Civil Liberties 521 U.S. 844 (1997) the court found a violation of the First Amendment of the Constitution. Judge Buckwalter stated that indecent patently offensive and in context were so vague that criminal enforcement of either section would violate the fundamental constitutional principle of simple fairness. CCC. FOR THAT In Ashcroft v American Civil Liberties Union 535 U.S. 564 (2002) Justice Stevens at 674: Criminal prosecutions are, in my view, an 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 their part will render them liable to its penaltiesand 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. 156 (1972) the court stated in para 162 that The ordinance is void for vaguenessit 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 have not filed any other petition arising out of the same cause of action or facts before this Honble Court or any other court in the country.

87.

The Annexures P-1 to P-18 attached herewith are true copies of their respective originals. PRAYER

In the circumstances, it is therefore most humbly prayed that this Honble Court may be pleased to issue a writ of mandamus, certiorari or a writ or direction of like nature to:i.

Issue a writ of certiorari or any other appropriate writ and declare Section 66A of the Information Technology Act, 2000 to be ultra vires and unconstitutional contrary to Articles 14, 19 and 21 of the Constitution of India;

ii.

Direct the Respondent No. 2 go grant notice and hearing to the author/owner of uploaded content under Rules 5, 8(1) and 11 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 formed

under Section 79(2) and Section 87(2)(zg) of the Information Technology Act, 2000 without which the said provisions would be contrary to natural justice and therefore void;
iii.

Direct the Respondent No. 2 that any order made under the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 to block a website provide reasons and be published in the Official Gazette of Petitioner No. 1 and to that extent Rule 16 of the same be declared void;

iv.

Issue a writ of Mandamus or any other writ or direction and declare that any person will have locus standi to challenge any order of blocking made under Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 as per the right to receive information under article 19, 21 and 14 of the Constitution of India;

v.

Issue an appropriate writ order or direction to declare that the requirement of confidentiality of the complainant under Rules 16 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 be determined in each case by a court of competent jurisdiction;

vi.

Issue an appropriate writ order or direction and quash Rules 3 (2), 3(3), 3(4) and 3(7) of the Information Technology (Intermediaries Guidelines) Rules, 2011 as ultravires Section 79 of the Information Technology Act, 2000 and contrary to article 19, 14 and 21 of the Constitution of India ;

vii.

Pass such other and further order (s) as this Honble 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:

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION CRL.M.P. IN WRIT PETITION (CRIMINAL) NO. ____ OF 2013 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) OF 2013

IN THE MATTER OF: PEOPLES UNION FOR CIVIL LIBERTIES Versus UNION OF INDIA AND ORS .RESPONDENTS PETITIONER

APPLICATION FOR STAY AND INTERIM DIRECTIONS To, The Honble Chief Justice of India and his companion justices of the Honble Supreme Court of India The humble petition of the petitioner above named:

MOST RESPECTFULLY SHOWETH:

1. The present petition impugns Section 66A of the Information Technology Act, 2000, the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 [henceforth referred to as the Website Blocking Rules] and the Information Technology (Intermediaries Guidelines) Rules, 2011 [The Intermediary Guidelines] as being violative of Articles 14, 19 and 21 of the Constitution of India.

2. The instant writ petition is being filed under Article 32 of the Constitution of India by way of a Public Interest Litigation as there are instances of complaints under Section 66A of the Information Technology Act, 2000 as well as misuse of the abovementioned Rules all over country. 3. The facts and circumstances giving rise to the present application are narrated in the accompanying Writ Petition and the same are not reiterated herein in the interest of brevity. The Petitioner craves leave to refer to and rely upon the accompanying Writ Petition atthe time of hearing of the present application.

4. It is respectfully stated that Section 66A of the Information Technology Act, 2000 provides a maximum of three years punishment for due to, interalia, annoyance or inconvenience being caused by online speech or writing. The offence is cognizable and due to the vague and undefined purported offences contained within it the power to punish speakers and writers through arrest and threat of criminal trial is at the first instance granted to complainants with offended sentiments and police officials. It is respectfully submitted that such criminalisation of speech over the internet and mobile phone communication is contrary to Articles 14, 19 and 21, because, inter alia, the said section penalizes and restricts online speech to a much greater degree than offline speech, restricts it in an unreasonable manner contrary to Article 19 (1) (2) of the Constitution of India and that a significant proportion of the offences in Section 66A do not even fall within the permissible categories of restriction in Article 19 (2). It is respectfully stated that Prof. Ambikesh Mahapatra and Mr. Subrata Sengupta are, amongst many others, facing rigours of criminal trial merely

for circulating an innocuous cartoon amongst neighbours, a criminal complaint having been brought against them by a stranger to the email conversation. That Prof Mahapatra is a Professor of chemistry at Jadavpur University and that Mr. Sengupta, a retired engineer, is approx. 73 years of age and suffers from serious illness, that as such they and others similarly placed- should not be required to go through a criminal trial under a provision that is ex-facie unconstitutional, especially when there is no other provision of the criminal law that they are charged with. 5. It is respectfully stated that the Information Technology (Intermediaries Guidelines) Rules, 2011 (hereinafter referred to as the Intermediary Rules, 2011) which are formed under Section 79(2) read with Section 87(2)(zg) of the Information Technology Act, 2000 also, inter alia, provide for grossly harmful, blasphemous, invasive of anothers privacy, ethnically objectionable, disparaging such vague and undefined categories which require legal determinations and effective censorship by private online service providers, are contrary to Articles 14, 19 and 21, and are not reasonable restrictions or falling within the permissible categories of restriction in Article 19(2). 6. It is respectfully stated further that the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 which have been made under Section 69A read with Section 87(2)(z) of the Information Technology Act, 2000 similarly provide for blocking of web pages in India without proper publication or notice to public containing the reasons for blocking of websites. Further the process for blocking of websites is entirely secret and ex facie fail to meet constitutional safeguards of natural justice under Articles 19 and 21. The

unreasonably restrictive procedure for banning websites in addition, does not meet the procedural natural justice standards for book banning; ebooks may thus be banned easily and secretively, immune to legal challenge as compared with their paper counterparts. As such the rules concerning the blocking of websites in their preset form are violative of Article 14 of the Constitution of India. 7. It is respectfully stated that Section 66A, the Blocking Rules, 2009 and Intermediaries Rules, 2011 all promote censorship on the Internet and conflict with the protections under Articles 14, 19 and 21 of the Constitution of India and hence approach this Honble Court under its extraordinary jurisdiction under Article 32 of the Constitution of India. 8. That as stated in the petition, the Information Technology (Blocking of Information) Rules, 2009 provide for a secretive process by which Orders are issued by Respondent No. 1 to block websites in the absence of any safeguards or natural justice afforded to the author/owner. Due to the nontransparent procedure, in which Blocking Orders are not made public and even reasons are not provided for issuing them it becomes imperative for any further action under them to be stayed. The broad deprivations of freedom of speech caused by such widespread blocks are set out in detail in the empirical studies annexed to the petition. 9. The Information Technology (Intermediary Guidelines) Rules, 2011

are delegated legislation which is ex-facie ultra vires the principal legislation, i.e. Section 79 of the Information and Technology Act, 2000. The Information Technology (Intermediary Guidelines) Rules, 2011 provide for private censorship where takedown of content by intermediaries

(companies and individuals) is incentivized by immunity from civil and criminal prosecution. Due to the broad, undefined categories present under the Information Technology (Intermediary Guidelines) Rules, 2011 the intermediaries are interpreting the provisions in a conservative manner leading to excessive takedown of content as evinced by the empirical study annexed to this petition conducted by the Centre for Internet and Society Intermediary Liability in India: Chilling Effects on Free Expression on the Internet, 2011. 10. It is respectfully stated further that content on the internet taken down under the Intermediary Guidelines and banned under the Website Blocking Rules without notice to the author/owner and without adequate remedies for challenge or appeal stifle dissent and unpopular opinion and hamper the functioning of democracy pending disposal of the present petition. 11. It is respectfully stated that those being arrested and those undergoing trial under Section 66A of the IT Act shall suffer irreparable loss and injury if the reliefs as prayed for hereinafter are not granted in favour of the Petitioner. 12. That the present application is being made bonafide and in the interests of justice.

PRAYER In the premises it is most respectfully prayed that this Honble Court may be pleased to -

i)

a) Stay the operation of Section 66A of the Information Technology Act, 2000 and all proceedings being conducted thereunder;

In the alternative;

b) Direct formation of a Committee of experts in law and information technology to review fresh complaints and ongoing cases under Section 66A of the Internet Technology Act, 2000 pending disposal of the present petition, and that no FIR be registered, action be taken by police authorities, cases be continued pursuant to Section 66A until approval by the said Committee;

ii)

Direct Respondent No. 2 that blocked websites under the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 display reasons for which they were blocked by the Designated Authority pending the disposal of the present writ petition ;

iii)

Direct that pending disposal of the present petition Grievance Officers of intermediaries be notified by Respondent No. 2 to pursue the following procedure to take down content when brought to actual knowledge in writing that the said content is in violation of law:

a) Initiate steps to inform the author/ owner of the content and to take down the said content within 36 hours b) redress such complaints promptly but in any case within one month from the date of receipt of complaint. c) Confirm takedown of content on registration of an FIR or by order of a competent court. iv) Pass such other and further order as may be deemed fit and proper in the facts and circumstances of the present case.

AND FOR THIS ACT OF KINDNESS AND JUSTICE THE PETITIONER SHALL, AS IN DUTYBOUND, EVER PRAY.

FILED BY:

Filed on: PUKHRAMBAM RAMESH KUMAR Advocate for the Petitioner