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IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 21 OF 2013
PUBLIC INTEREST LITIGATION
In the matter of:
Common Cause & Anr

Petitioner
Versus

Union of India

Respondent

SHORT NOTE ON BEHALF OF THE PETITIONER ON THE

CONSTITUTIONAL VALIDITY OF 66A OF I.T. ACT, 2000
1. These submissions are being filed limited on the issue of the
constitutional validity of Section 66A of the Information Technology
Act, 2000. Petitioner seeks liberty to address the other issues raised
in the writ petition separately. There is considerable evidence of the
gross human rights violations in the form of arrests and threats under
this Section, as well as its chilling effect on free speech. Various
petitioners have already placed a few such instances on the record in
the instant proceedings. These submissions, however, are limited to
the issue of unconstitutionality of the section from a reading of its bare
provisions.

Restrictions under Section 66A are vague, general and elastic

2. The issue of vagueness rendering a statute unconstitutional was

considered by this Honble Court in the case of A.K Roy v. Union of

India 1982 AIR 710. While determining whether the expressions in
the law
observed:

were vague, general and elastic, this Honble Court

The

impossibility

of

framing

definition

with

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mathematical precision cannot either justify the use of vague
expressions or the total failure to frame any definition at all which
can furnish, by its inclusiveness at least, a safe guideline for
understanding the meaning of the expressions used by the
legislature The requirement that crimes must be defined with
appropriate definiteness is regarded as a fundamental concept
in criminal law and must now be regarded as a pervading
theme of our Constitution since the decision in Maneka Gandhi v.
Union of India [1978]2SCR621 . The underlying principle is that
every person is entitled to be informed as to what the State
commands or forbids and that the life and liberty of a person
cannot be put in peril on an ambiguity

3. In the case of The State of Madhya Pradesh v. Baldeo Prasad AIR

1961 SC 293, this Honble Court has held that Section 4 and 4A of
the Central Provinces and Berar Goondas Act suffers from
infirmities as the definition of the word goonda affords no
assistance in deciding which citizen can be put under that category,
the result of the such an infirmity is that the Act has left to the
unguided and unfettered discretion of the authority concerned to
treat any citizen as a goonda, and in holding so has declared the
Act to be unconstitutional due to the serious nature of the infirmities
in the operative sections (i.e. S 4 and S 4A) of the Act. This Honble
Court in the case of K.A. Abbas v. The Union of India 1971 AIR 481
has in passing observed that it cannot be said as an absolute
principle that no law will be considered bad for sheer vagueness.

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There is ample authority for the proposition that a law affecting
fundamental rights may be so considered.

4. In the United States any criminal statue which lacks clarity or is

uncertain is held to be void on grounds of vagueness as it offends

the Due Process Clause. " vagueness may be from uncertainty in
regard to persons within the scope of the act . . . or in regard to the
applicable tests to ascertain guilt." Musser v. Utah, 333 U.S. 95, 97
(1948). A statue limiting the right to free speech and expression if
found to be vague would be declared void. Winters v. New York 333
U.S. 507 (1948). Vagueness may invalidate a criminal law for
either of two independent reasons. First, it may fail to provide the
kind of notice that will enable ordinary people to understand what
conduct it prohibits; second, it may authorize and even encourage
arbitrary and discriminatory enforcement . Chicago v. Morales 527

U.S. 41 (1999) It is a basic principle of due process that an

enactment is void for vagueness if its prohibitions are not clearly
defined. Vague laws offend several important values. First,
because we assume that man is free to steer between lawful and
unlawful conduct, we insist that laws give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so
that he may act accordingly. Vague laws may trap the innocent by
not providing fair warning. Second, if arbitrary and discriminatory
enforcement is to be prevented, laws must provide explicit
standards for those who apply them. A vague law impermissibly
delegates basic policy matters to policemen, judges, and juries for

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resolution on an ad hoc and subjective basis, with the attendant
dangers of arbitrary and discriminatory application. Third, but
related, where a vague statute "abut[s] upon sensitive areas of
basic First Amendment freedoms," it "operates to inhibit the
exercise of [those] freedoms." Uncertain meanings inevitably lead
citizens to "`steer far wider of the unlawful zone' . . . than if the
boundaries of the forbidden areas were clearly marked. Grayned v.
City of Rockford, 408 U.S. 104 (1972).

5. In light of law laid down above it is submitted that the expressions

used in Section 66 A -grossly offensive, menacing character,

annoyance, inconvenience, danger, obstruction, insult,
injury, enmity, hatred, or ill-will- are vague ,elastic and
general. In the absence of any precise definition, limitation or
clarification as to the extent and the scope of each of the
expressions, it is impossible for a man of reasonable intelligence to
precisely ascertain what conduct is prohibited under Section 66A.

6. The grievance herein is not uncertainty about the common meaning

of these words but as to the clear determination of what conduct is

covered under each of these expressions given the general nature
of these expressions. It is the legislatures failure to distinguish
between innocent conduct and conduct which is sought to be
penalized under this Clause that is sought to be remedied. The
dictionary definition of each of the expressions gives them a far and
wide reach which necessitates that the statue should limit their

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applicability by defining clear and precise standards of conduct.
Given that the standard of certainty ought to be the highest in a
criminal statue, Section 66A should be declared void as it does not
provide precise and clear definitions for each of the expressions.

7. Something that might be grossly offensive to one person need not

be so to another person, similarly what might cause annoyance to

one person need to effect another person in the same way. The
conduct specified herein depends entirely on each complainants
sensitivity.

This

further

buttresses

the

argument

that

the

expressions used in the Clause are vague and ambiguous. Further

the statues fails to specify on whose sensitivity the violation
depends whether the sensitivity of the judge or jury, the sensitivity
of the arresting officer, or the sensitivity of a hypothetical
reasonable man.

8. It is true that most of these expressions have also been used in the

Indian Penal Code, however it is submitted that the IPC unlike

Section 66 A provides greater specificity to each of these
expressions by limiting their scope by prescribing clear standards
by which the prohibited conduct is to be determined. For e.g.
Section 124A which is the offence relating to sedition, it seeks to
penalize any action that attempts to bring into hatred or contempt
or excites or attempts to excite disaffection, and it limits the scope
of the said expressions such as hatred by placing an additional

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qualification that only when the same is directed towards the
Government established by law that it is considered an offence.

9. Section 153 A of IPC deals with Promoting enmity between

different groups on ground of religion, race, place of birth,

residence,

language,

etc.,

and

doing

acts

prejudicial

to

maintenance of harmony. For any act to be regarded as an offence

under this Section, the act must necessarily promote feelings of
enmity, hatred or ill- will and the additional qualification that limits
the applicability of the Section is that, the enmity, hatred or ill- will
should be between different religious, racial, language or regional
groups or castes or communities and only on grounds of of
religion, race, place of birth, residence, language, caste or
community. Lastly Section 268 of IPC which deals with nuisance, it
holds that a person is guilty of public nuisance if an act causes
annoyance to the public only to the extent that it interferes with a
persons right to enjoy his/her private property or any public right. It
is submitted that in each of the above Sections of the IPC a
concrete harm requirement is prescribed, further the expressions
such as hatred, enmity, annoyance are defined by who are the
persons effected and reaction or sensibilities of the effected
persons, it is submitted that this removes any kind of uncertainty or
ambiguity.

10. Section 66A (a) is patently illegal on grounds of vagueness as no

specific intent is prescribed, it simply seeks to penalize any

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information that is grossly offensive or has a menacing
character, the requirement of mens rea to do a prohibited act is
necessary in all criminal statues and the same is absent in subsection (a) of Section 66A. For e.g. under this sub-section a friend
playing a prank simply in jest which as per the complainants
sensitivity qualifies to be grossly offensive might be penalized. It is
submitted that right to offend is a basic part of free speech. A
provision which states that there is a right to free speech provided a
person does not cause any annoyance to any other person, makes
the right to free speech absolutely meaningless.

Restriction under Section 66A fall outside the ambit of Article 19

(2)
11. It is submitted that any restriction to freedom of speech and

expressions is only valid if it meets the touchstone of Article 19 (2).

Article 19 (2) lays down that the State can impose reasonable
restrictions on the exercise of right provided under Article 19 (1) (a)
in the interest 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.

12. This Honble Court in numerous judgments has held that when the

Constitution provides for a distinct category of permissible

restrictions, any law of the State which does not satisfy the
requirements laid down in Article 19 (2) is unconstitutional. In the

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cases of Brij Bhushan and Anr. V. The State of Delhi AIR 1950 SC
129 and Romesh Thappar v. The State of Madras AIR 1950 SC 124
wherein the constitutional validity of section 7(1)(c) of the East
Punjab Public Safety Act, 1949 and Section 9 [1-A] of Madras
Maintenance of Public Order Act, 1949 respectively were
challenged. This Honble Court in both the above cases has held
that since both the Sections impose wider restrictions then the
restrictions authorized under Section 19 (2) they were held to be
unconstitutional.

13. Section 66 A is unconstitutional as the restraints placed on the

freedom of speech and expression are far excessive then the

restrictions under Article 19 (2). Section 66 A seeks to punish
anyone who by means of a computer resource or a communication
device sends any information that is grossly offensive or has a
menacing

character

or

seeks

to

cause

annoyance

or

inconvenience causing danger, obstruction, insult, injury, criminal

intimidation, enmity, hatred or ill will.

14. It is submitted that terms such as menacing character, causing

annoyance,

inconvenience,

obstruction

or

ill

will

cannot be taken to mean as something which results in

consequences counter to the interest of the sovereignty and
integrity of India, the security of the State, friendly relations with
foreign states; or that it effects public order, decency or morality; or
is in relation to contempt of court, defamation or incitement to an

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offence. Casual conversation may be intended to "annoy" or cause
inconvenience; this might be light-hearted banter or the earnest
expression of personal opinion or emotion. But unless speech
presents a clear and present danger of some serious substantive
evil, it should not be forbidden nor penalized.

15. Further it is submitted that there is a difference between the

restrictions enumerated in Section 66A and that which is

enumerated in Article 19 (2). In serious or aggravated forms
communications which is grossly offensive or causes danger, insult,
injury, enmity or hatred might lead to consequences enumerated
under Article 19 (2). However this Honble Court in the case of
Romesh Thappar v. The State of Madras (supra)- wherein while
dealing with the contention that the expression public safety in the
impugned Act, which is a statute relating to law and order, means
the security of the Province, and, therefore, the security of the
State under Article 19 (2) as it was prior to the Constitution (First
Amendment) Act, 1951- has observed the following :-

The

Constitution thus requires a line to be drawn in the field of public

order or tranquillity marking off, may be, roughly, the boundary
between those serious and aggravated forms of public disorder
which are calculated to endanger the security of the State and the
relatively minor breaches of the peace of a purely local
significance, treating for this purpose differences in degree as if
they were differences in kind. Therefore, there being a significant
difference in degree between the restriction enumerated under

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section 66A and Article 19 (2), it cannot be said that the restrictions
under Section 66A can be construed to mean restrictions under
Article 19 (2).

16. There could be many instances where say, without breaching public

order or defaming anyone, one may communicate with another with

the possible intention of causing a slight annoyance or insulting
them in order to emphasize an idea or opinion, or to prompt a
desired course of action that one is legitimately entitled to seek.
This section has the effect of making criminal a communication
made by a consumer to the service provider or a manufacturer
expressing his dissatisfaction with the product or the service; or a
communication made by an irate citizen to a public official
expressing his dissatisfaction over the current state of public affairs.
Mere intolerance or animosity cannot be the basis for abridgment of
the constitutional freedom under Article 19 (1)(a).

17. Therefore, the petitioner respectfully submits that Section 66A of the
Information Technology Act 2000 is unconstitutional.

Dated: 24.11.2014

Prashant Bhushan
(Counsel for the Petitioners)