Editor: I. Mallikarjuna Sharma Volume 11: 15-31 March 2015 No. 5-6

(2015) 1 LAW Shreya Singhal v. Union of India [IND-SC] ISC-135
“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 subsection (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 subsection
(1) shall be punished with an
imprisonment for a term which may
extend to seven years and shall also be
liable to fine.”
3. The Statement of Objects and Reasons
appended to the Bill which introduced the
Amendment Act stated in paragraph 3 that:
“3. A rapid increase in the use of computer and
internet has given rise to new forms of crimes like
publishing sexually explicit materials in electronic
form, video voyeurism and breach of confidentiality
and leakage of data by intermediary, e-commerce
frauds like personation commonly known as
Phishing, identity theft and offensive messages
through communication services. So, penal
provisions are required to be included in the
Information Technology Act, the Indian Penal
code, the Indian Evidence Act and the code of
Criminal Procedure to prevent such crimes.”
4. The petitioners contend that the very basis of
Section 66A – that it has given rise to new forms
of crimes – is incorrect, and that Sections 66B to
67C and various Sections of the Indian Penal
Code (which will be referred to hereinafter) are
good enough to deal with all these crimes.
5. The petitioners’ various counsel raised a large
number of points as to the constitutionality of
Section 66A. According to them, first and
foremost Section 66A infringes the fundamental
right to free speech and expression and is not
saved by any of the eight subjects covered in
Article 19(2). According to them, the causing of
annoyance, inconvenience, danger, obstruction,
insult, injury, criminal intimidation, enmity,
hatred or ill-will are all outside the purview of
Article 19(2). Further, in creating an offence,
Section 66A suffers from the vice of vagueness
because unlike the offence created by Section 66
of the same Act, none of the aforesaid terms are
even attempted to be defined and cannot be
defined, the result being that innocent persons are
roped in as well as those who are not. Such
persons are not told clearly on which side of the
line they fall; and it would be open to the
authorities to be as arbitrary and whimsical as
they like in booking such persons under the said
Section. In fact, a large number of innocent
persons have been booked and many instances
have been given in the form of a note to the
Court. The enforcement of the said Section would
really be an insidious form of censorship which
impairs a core value contained in Article 19(1)(a).
In addition, the said Section has a chilling effect
on the freedom of speech and expression. Also,
the right of viewers is infringed as such chilling
effect would not give them the benefit of many
shades of grey in terms of various points of view
that could be viewed over the internet. The
petitioners also contend that their rights under
Articles 14 and 21 are breached inasmuch there is
no intelligible differentia between those who use
the internet and those who by words spoken or
written use other mediums of communication. To
punish somebody because he uses a particular
medium of communication is itself a
discriminatory object and would fall foul of
Article 14 in any case.
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Law Animated World, 15-31 March 2015