CONSTITUTIONAL VALIDITY - Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2). - Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid. - Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material. Similarly, the Information Technology "Intermediary Guidelines" Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment. Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2). All the writ petitions are disposed in the above terms.-2015 S.C. MSKLAWREPORTS




 The  immediate
cause for concern in these petitions  is  Section  66A  of  the  Information
Technology Act of 2000.  This Section was  not  in  the  Act  as  originally
enacted, but came into force by virtue of an  Amendment  Act  of  2009  with
effect from 27.10.2009.  Since all the arguments raised by  several  counsel
for the petitioners deal with the unconstitutionality of this Section it  is
set out hereinbelow:

"66-A. Punishment  for  sending  offensive  messages  through  communication
service, etc.-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  by  making
use of such computer resource or a communication device; or


(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.

Explanation.- For the purposes of this section, terms "electronic mail"  and
"electronic  mail  message"  means  a  message  or  information  created  or
transmitted or received on a computer, computer  system,  computer  resource
or communication device including attachments in text, image,  audio,  video
and  any  other  electronic  record,  which  may  be  transmitted  with  the
message."[1]

  A related challenge is also made to  Section  69A  introduced  by  the
same amendment which reads as follows:-


"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."

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."

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.

  In conclusion, we may summarise what has been held by us above:

Section 66A of the Information Technology Act, 2000 is struck  down  in  its
entirety being violative of Article 19(1)(a) and  not  saved  under  Article
19(2).

Section 69A and the  Information  Technology  (Procedure  &  Safeguards  for
Blocking  for  Access   of   Information   by   Public)   Rules   2009   are
constitutionally valid.

Section 79 is valid subject to Section 79(3)(b)  being  read  down  to  mean
that an intermediary upon receiving actual knowledge from a court  order  or
on being notified by the appropriate government or its agency that  unlawful
acts relatable to Article 19(2) are going to  be  committed  then  fails  to
expeditiously remove or disable access to  such  material.   Similarly,  the
Information Technology  "Intermediary  Guidelines"  Rules,  2011  are  valid
subject to Rule 3 sub-rule (4)  being  read  down  in  the  same  manner  as
indicated in the judgment.

Section 118(d) of the Kerala Police Act is struck down  being  violative  of
Article 19(1)(a) and not saved by Article 19(2).

All the writ petitions are disposed in the above terms.-2015 S.C. MSKLAWREPORTS

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