66A IMPORTANT

the Supreme Court recently re-examined the delicate balance between the freedom and restrictions and noted
that freedom of speech is essential for the proper functioning of the democratic process.

It held freedom of speech and expression as the first condition of liberty and one which occupies a preferred
position in the hierarchy of liberties. Liberty of thought enables liberty of expression. However, the Court notes
that rights are not absolute and uncontrolled in operation and the existence of every right is coupled with a
corresponding duty. There has to be a balance and proportionality between the right and restriction on the one
hand and the right and duty on the other. It would create an imbalance if undue emphasis is placed upon the
right of a citizen without considering the significance of the duty. Thus all freedoms, including the freedom of
expression have to be examined with reference to the concept of fundamental duties and non-interference with
liberty of others.

One has the right to express and dissent, but does that include the right to insult, offend and disparage?

the anonymity of the online world necessitates that electronic communication which insults or is intended to
cause persistent annoyance or spread falsehood must be treated as a crime. The words persistent and intended
to cause insults as contained in the Section are important and usually get overlooked when debating the
provision.

PIL by a law student

Notwithstanding, as a defender of the rule of law, one submits that just because an administrative authority acts
in an arbitrary manner is not sufficient argument to call for the striking down of a statute (provided of course it
stands the test of legal scrutiny), especially since purported arbitrary action will itself eventually be struck down
by courts. In fact, this is a matter which has often been reviewed by the Apex Court and it has held that, “the
duty to act judicially excludes arbitrary exercise of power and it is, therefore, essential to the rule of law that the
duty to act judicially is strictly observed by the administrative authorities upon whom it is laid. If any departure
from the observance of the duty to act judicially could pass unnoticed, it would open the door to arbitrariness
and make a serious inroad on the rule of law.”

The Apex Court has also held that “. . . the absence of arbitrary power is the first essential of the rule of law
upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when
conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this
point of view means that the decisions should be made by the application of known principles and rules and, in
general, such decisions should be predictable and the citizen should know where he stands.” - See more at:
http://www.witnesslive.in/legal-reforms/80-why-section-66a-of-it-act-must-not-be-expunged-
#sthash.FxsHUSXu.dpuf

- See more at: http://www.witnesslive.in/legal-reforms/80-why-section-66a-of-it-act-must-not-be-expunged-

#sthash.FxsHUSXu.dpuf

A statute cannot be struck down merely because the Court thinks it to be arbitrary or unreasonable.
Any such ground of invalidity must be related to a Constitutional provision, such as, Articles 14, 19 or
21. Challenge on ground of wisdom of legislation is not permissible as it is for the legislature to
balance various interests48. The Legislature appreciates and understands the needs of the people,
that it knows what is good or bad for them, that the laws it enacts are directed to problems which
are made manifest by experience, that the elected representatives in a legislature enact laws which
they consider to be reasonable, for the purposes for which these laws are enacted and that a
legislature would not

deliberately flout a constitutional safeguard or right.49

The Legislature composed as it is of the elected representatives of the people is presumed to know
and be aware of the needs of the people and what is good or bad for them and that a Court cannot
sit in judgment over the wisdom of the Legislature.50

Therefore usually the presumption is in the favour of the Constitutionality of the statute and the
onus to prove that it is unconstitutional lies upon the person who is challenging it.51

The allegations regarding the violation of a constitutional provision should be specific, clear and
unambiguous and it is for the person who impeaches the law as violative of the constitutional
guarantee to show that the particular provision is infirm for the reasons stated by him.5

46

State of West Bengal v. S.N. Basak, AIR 1963 SC 447; Hazarilal Gupta v. Rameshwar Prasad, AIR 1972
SC

State of M.P. v. Avadh Kishore Chopra, AIR 2004 SC 517; CBI v. Ravi Shankar Srivastava, AIR 2006 SC

Mylapore Club v. State of Tamil Nadu (2005) 12 SCC 752

66A not vague or unreasonable

Nand Lal v. State of Haryana, AIR 1980 SC 2097; 2100, A.K. Roy v. Union of India, AIR 1982 SC 711,
737

The Supreme Court has observed in that no enactment can be struck down by just saying that it is
arbitrary or unreasonable. Some constitutional infirmity has to be found before invalidating an Act. It
cannot be declared invalid on the ground that it contains vague or uncertain or ambiguous or
mutually inconsistent provisions.

Whether the standard offered by the statute is vague or not has to be decided and is to be
determined upon an examination of the Act upon an examination of the Act read as a whole.

House of Lords has clarified what makes a message sent by means of a public electronic
communications network “grossly offensive” and therefore capable of amounting to a crime under
the Communications Act 2003 in Director of Public Prosecutions

(Appellant) v. Collins (Respondent)61 on appeal from the abovementioned case. Their Lordships held
that: “To determine as a question of fact whether a message is grossly offensive, that in making this
determination the Justices must apply the standards of an openand just multi-racial society, and that
the words must be judged taking account of their context and all relevant circumstances. Usages and
sensitivities may change over time.

Language otherwise insulting may be used in an unpejorative, even affectionate, way, or may be
adopted as a badge of honour. There can be no yardstick of gross offensiveness otherwise than by
the application of reasonably enlightened, but not perfectionist, contemporary standards to the
particular message sent in its particular context. The test is whether a message is couched in terms
liable to cause gross offence to those to whom it relates.”
The expressions such as “grossly offensive”, “menacing”, “annoyance”, “inconvenience”, “danger”,
“obstructions”, “insult”, “injury”, “criminal intimidation”, “enmity”, “hatred” and “ill-will” which are
present in Section 66A also appear in other legislations such as Section 20 (b) of the Indian Postal Act
1998, Sections 503, 504, 507, 295, 298, of the Indian Penal Code (IPC). In many of these cases under
the IPC, imprisonment or fine or both can be levied and therefore they cannot be said to be vague
and arbitrary.

POWER OF POLICE(IGP,S.P., D.S.P.)

Section 78: Power to Investigate Offence: “Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), a police officer not below the rank of D.S.P.

Subsequently, on January 9, 2013, an advisory to State and Union governments was issued where
the approval for such arrests was elevated to “an officer not below the rank of Inspector General of
Police in metropolitan cities or of an officer not below the rank of DCP or SP at district level”.

Not arbitrary

The bare possibility that the discretionary power may be abused is no ground for invalidating

a statute.70 The possibility of abuse of a statute otherwise valid does not impart to it any

invalidity. The presumption is that public official will discharge their duties honestly and in

accordance with the law.72 Arbitrariness on the possibility that a power may be abused,

despite the guidelines, in the provisions providing for such power cannot be held to be

arbitrary and unreasonable.73 Once the policy is laid down by law it cannot be held invalid

merely on the ground that the discretion conferred by it may be abused in some cases and

may be exercised in a manner which is in fact discriminatory.

74 If the power is actually abused in any case the exercise of the power is actually abused in any
case, the exercise of the power may be challenged as discriminatory or mala fide, 75

but the statute will not fail on that ground.76 The Supreme Court has reiterated the principle that
mere likelihood of abuse of discretionary power conferred under statute would not render the
statutory provision unconstitutional.

FOOT NOTES

67
Sukhwinder v. State of Punjab, AIR 1982 SC 63

Naraindas v. State of M.P. AIR 1974 SC 1232

People’s Union of Civil Liberities v. Union of India, AIR 2004 SC 1442

Ramkrishna Dalmia v. Tendolkar AIR 1957 SC 532

R.K. Garg v Union of India 1985 1 SCC 641; Union of India v Elphinstone Spinning and Weaving Co. Ltd

AIR 2001 SC 724

Pannalal v. Union of India AIR 1957 SC 397

Commissioner of Central Excise Jamshedpur v. Dabur (India) Ltd., (2005) 3 SCC 646

Ramkrishna Dalmia v. Tendolkar AIR 1957 SC 532

Naraindas v. State of M.P. AIR 1974 SC 1232; Thakorebhai v. State of Gujrat; AIR 1975 SC 270

Ramkrishna Dalmia v. Tendolkar AIR 1957 SC 532

NOT AGAINST 14 and 19

There cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint for
that would lead to anarchy and disorder. The possession and enjoyment of all rights are subject to
such reasonable conditions as may be deemed to be essential to the safety, health, peace, general
order and morals of the community. What the Constitution, therefore, attempts in declaring the
rights off the people is to strike a balance between individual and social control. Article 19 gives a list
of individual liberties and prescribes in the various clauses therestraints that may be placed upon
them by law so that they do not conflict with public welfare or general morality.81

While it is necessary to maintain and preserve freedom of speech and expression in a democracy, so
also it is necessary to place some curbs on this freedom for the maintenance of social order.
Accordingly, under Article 19(2), the state may make a law imposing ‘reasonable restrictions’ on the
exercise of the right to freedom of speech and expression ‘in the interests of’ the securities of the
State, friendly relations with foreign States, public order, decency, morality, sovereignty and
integrity of India, or ‘in relation to contempt of Court, defamation or incitement to an offence.’

Maneka Gandhi v. Union of India [(1978) 1 SCC 248].

Sahara India Real Estate ... vs Securities & Exch.Board Of India & ... on 11 September, 2012

At the outset, it may be stated that the Supreme Court is not only the sentinel of the
fundamental rights but also a balancing wheel between the rights, subject to social control.
Freedom of expression is one of the most cherished values of a free democratic society. It is
indispensable to the operation of a democratic society whose basic postulate is that the
government shall be based on the consent of the governed. But, such a consent implies not
only that the consent shall be free but also that it shall be grounded on adequate information,
discussion and aided by the widest possible dissemination of information and opinions from
diverse and antagonistic sources. Freedom of expression which includes freedom of the press
has a capacious content and is not restricted to expression of thoughts and ideas which are
accepted and acceptable but also to those which offend or shock any section of the
population. It also includes the right to receive information and ideas of all kinds from
different sources. In essence, the freedom of expression embodies the right to know.
However, under our Constitution no right in Part III is absolute. Freedom of expression is
not an absolute value under our Constitution. It must not be forgotten that no single value,
no matter exalted, can bear the full burden of upholding a democratic system of government.
Underlying our Constitutional system are a number of important values, all of which help to
guarantee our liberties, but in ways which sometimes conflict. Under our Constitution,
probably, no values are absolute. All important values, therefore, must be qualified and
balanced against, other important, and often competing, values. This process of definition,
qualification and balancing is as much required with respect to the value of freedom of
expression as it is for other values. Consequently, free speech, in appropriate cases, has got
to correlate with fair trial. It also follows that in appropriate case one right [say freedom of
expression] may have to yield to the other right like right to a fair trial. Further, even Articles
14 and 21 are subject to the test of reasonableness after the judgment of this Court.
Dharam Dutt v. Union of India reported in (2004) 1 SCC 712,
it has been held that rights not included in
Article 19(1)(c) expressly, but which are deduced from the express language of the Article are
concomitant rights, the restrictions thereof would not merely be those in Article 19(4)]. Thus,
balancing of such rights or equal public interest by order of postponement of publication or
publicity in cases in which there is real and substantial risk of prejudice to the proper
administration of justice or to the fairness of trial and within the above enumerated
parameters of necessity and proportionality would satisfy the test of reasonableness in
Articles 14 and 19(2). One cannot say that what is reasonable in the context of Article 14 or
Article 21 is not reasonable when it comes to Article 19(1)(a). Ultimately, such orders of
postponement are only to balance conflicting public interests or rights in Part III of
Constitution. They also satisfy the requirements of justification under Article 14 and Article
19.
Article 66 A of the I.T. Act lays down mere regulatory measures for control of vices such as
threatening e-mails, threatening messages, messages causing criminal intimidation etc.
Hence, there is no ‘extinction’ of the Freedom of Speech and Expression. If at all, it is just
“regulation”. Also, the word ‘restriction’ includes ‘prohibition’. Under certain circumstances,
therefore, a law depriving a citizen of his Fundamental Right may be regarded
as reasonable.
Hence, it is submitted that the restriction imposed by Article 66 A is a
reasonable restriction under Article 19(2)

IMP FOR MAINTAINCE OF PUBLIC ORDER (ARTICLE 19(2))

The limitation imposed in the interests of public order to be a reasonable restriction, should
be one which has a proximate connection or approximate and reasonable connection94
or nexus with public order, but not one which is far-fetched, hypothetical, problematic or
too remote.95It must be rationally proximate and direct to be called reasonable.
96 Once the connection between the restrictive legislation and the permissible ground is
rational, the Legislature has the discretion as to the expediency of the stage at which the
restriction is to be applied. Thus, it is not prevented from providing against threatened or
apprehended injury as distinguished from actual injury.97
Under Article 19(2), a restriction can be imposed ‘in the interests of’ public order, etc. The
expression ‘in the interests of’ gives a greater leeway to the legislature to curtail freedom of
speech and expression, for a law penalising activities having a tendency to cause, and not
actually causing public disorder, may be valid as being ‘in the interests of’ public order.
However, the restrictions imposed must have a reasonable and rational relation with the
public order, security of state, etc.

foot noteS

Arunachala Nadar, M.C.V.S. v. State of Madras, AIR 1950 SC 300

Superintendent Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633

O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812

Virendra v. State of Punjab, AIR 1957 SC 896

Not AGAINST 21
To ensure fairness on all sides there must be harmony and accord between the rights of two
individuals or the rights of an individual on one hand and the society on the other hand.
Every individual in the society has been guaranteed the rights under Article 21 however since
the interests and necessities of the collective, i.e. the society as a whole takes precedence over
the singular interests of one person, any law which prescribes specific limits on the exercise
of the rights enshrined under Article 21 with the end being the continuation of peaceful
public life cannot be said to be violative of Article 21. Since Section 66A has been enacted to
achieve that end which is tantamount to peaceful interactions between members of the
society without violating public order, it does not transgress Article 21.
Where individual liberty comes into conflict with an interest of the security of the state or
public order, the liberty of the individual must give way to the larger interest of the
nation.114

There can be no liberty without social restraint. Liberty of each citizen is born of and must be
subordinated to the liberty of the greater number, in other words, common happiness as an
end of the society. The essence of civil liberty is to keep alive the freedom of individual
subject to the limitation of social control, which could be adjusted according to the needs of
the dynamic social evolution. Section 66A imposes social restraint on the liberty of an
individual since an individual’s liberty is subordinated to the Liberty of the society.115

The Assam Disturbed Areas Act, 1955 (Assam Act) & The Armed Forces (Special Powers)
Act, 1958 confer very broad powers on the Government and the police officers. The State
Government can declare any area in Assam as a disturbed area. Police Officers not below a
certain rank, and military officers then get the power to fire upon or use force even to the
extent of causing death for maintain public order. The validity of both the Acts was
questioned on the grounds inter-alia, that there was no safeguard to possible abuse in
exercise
of the powers conferred by the Acts in question. The Delhi High Court upheld both the Acts
in Inderjeet Barua v. State of Assam.116
If to save hundreds of lives, one life is put in peril or
if a law ensures and protects the greater social interest then such a law will be regarded as a
wholesome and beneficial law although it may infringe the liberty of some individuals.
It will ensure for the liberty of the greater number of the members of the society at the cost of
one or a few. 117
The Court has further emphasized that it is the duty of the State to preserve
Law and Order. It is the State’s duty to see that the Rule of Law enunciated by Article 21 is
available to the greatest number. Individuals have the right of private defence and even a
stranger can act to prevent crime. If individuals have such a right surely the State can enact a
statute to subserve the social purpose of ensuring Public Order, so that life and liberty are
preserved.
Foot NOTES

Sunil Fulchand Shah v. Union of India, AIR 2000 SC 1023

Kartar Singh v. State of Punjab, (1994) 3 SCC 569

AIR 1983 Delhi 513

117
Ibid 525
CONCLUSION

Section 66A is not a bad law. We need such a law to deal

with the activities on Internet, though I agree there is
scope for more amendment to bring more clarity in the
clause (c). We in the social media cannot demand better
rights than other citizens. If we engage in any activities
that concern the public, including expressing our views
on matters involving others, we are exposing ourselves
to the risk of being prosecuted. That is a part of the rule
of law. Misuse does not make an otherwise valid law,
bad.