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-159
72. In the Indian Penal Code, a number of the
expressions that occur in Section 66A occur in
Section 268.
“268. Public nuisance. – A person is guilty of a
public nuisance who does any act or is guilty of
an illegal omission, which causes any common
injury, danger or annoyance to the public or to
the people in general who dwell or occupy
property in the vicinity, or which must
necessarily cause injury, obstruction, danger or
annoyance to persons who may have occasion to
use any public right. A common nuisance is not
excused on the ground that it causes some
convenience or advantage.”
73. It is important to notice the distinction between
the Sections 268 and 66A. Whereas, in Section 268 the
various expressions used are ingredients for the offence
of a public nuisance, these ingredients now become
offences in themselves when it comes to Section 66A.
Further, under Section 268, the person should be
guilty of an act or omission which is illegal in
nature – legal acts are not within its net. A further
ingredient is that injury, danger or annoyance must
be to the public in general. Injury, danger or
annoyance are not offences by themselves
howsoever made and to whomsoever made. The
expression “annoyance” appears also in Sections
294 and 510 of the IPC:
“294. Obscene acts and songs. – Whoever, to the
annoyance of others,
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene songs,
ballad or words, in or near any public place,
shall be punished with imprisonment of either
description for a term which may extend to three
months, or with fine, or with both.
510. Misconduct in public by a drunken person. –
Whoever, in a state of intoxication, appears in
any public place, or in any place which it is a
trespass in him to enter, and there conducts
himself in such a manner as to cause annoyance
to any person, shall be punished with simple
imprisonment for a term which may extend to
twenty-four hours, or with fine which may
extend to ten rupees, or with both.”
74. If one looks at Section 294, the annoyance
that is spoken of is clearly defined – that is, it has
to be caused by obscene utterances or acts.
Equally, under Section 510, the annoyance that is
caused to a person must only be by another
person who is in a state of intoxication and who
annoys such person only in a public place or in a
place for which it is a trespass for him to enter.
Such narrowly and closely defined contours of offences
made out under the Penal Code are conspicuous by
their absence in Section 66A which in stark contrast
uses completely open ended, undefined and vague
language.
(emphases ours)
75. Incidentally, none of the expressions used in
Section 66A are defined. Even “criminal intimidation”
is not defined – and the definition clause of the
Information Technology Act, Section 2 does not
say that words and expressions that are defined in
the Penal Code will apply to this Act. (emphasis ours)
76. Quite apart from this, as has been pointed out
above, every expression used is nebulous in meaning.
What may be offensive to one may not be offensive to
another. What may cause annoyance or
inconvenience to one may not cause annoyance
or inconvenience to another. Even the expression
“persistently” is completely imprecise – suppose a
message is sent thrice, can it be said that it was
sent “persistently”? Does a message have to be
sent (say) at least eight times, before it can be
said that such message is “persistently” sent?
There is no demarcating line conveyed by any of these
expressions – and that is what renders the Section
unconstitutionally vague.
(emphases ours)
77. However, the learned Additional Solicitor
General argued before us that expressions that are
used in Section 66A may be incapable of any precise
definition but for that reason they are not
constitutionally vulnerable. He cited a large number
of judgments in support of this submission. None
of the cited judgments dealt with a Section creating an
offence which is saved despite its being vague and in
capable of any precise definition. In fact, most of the
judgments cited before us did not deal with
criminal law at all. The few that did are dealt with
herein-below. For instance, Madan Singh v. State
of Bihar, (2004) 4 SCC 622, was cited before us.
The passage cited from the aforesaid judgment is
contained in para 19 of the judgment. The cited
73
Law Animated World, 15-31 March 2015