1.

The present petitions filed under Article 32 of the Constitution of India are
maintainable.

1.1 Issues arising in the present petition do not concern legislative policy. It is
submitted before this Hon’ble Court that the issues raised in the present petitions do
not concern legislative policy but the constitutional validity of section 66-A which is
vague and unreasonable in its language. Since they raise very important and far-
reaching questions relatable primarily to the fundamental right of free speech and
expression guaranteed by Article 19(1)(a) of the Constitution of India. 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 This Section was not in the Act as originally enacted, but came into force by virtue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. Section 66-A of the IT act is
unconstitutional because it violates the fundamental rights freedom of speech and
expression guaranteed by Article 19(1)(a) of the Constitution. It is a public matter and is
affecting public interest.

1.2." In Sakal Papers (P) Ltd. v. Union of India, (1962) 3 SCR 842 it was held that
"Freedom of speech and expression of opinion is of paramount importance under a
democratic Constitution which envisages changes in the composition of legislature and
governments and must be preserved."

1.3 It must also be noted down that "Freedom of the press is the Ark of the Covenant of
Democracy because public criticism is essential to the working of its institutions. Never
has criticism been more necessary than today, when the weapons of propaganda are so
strong and so subtle. But, like other liberties, this also must be noted as laid down by the
apex court in Bennett Coleman & Co Union of India, (1972) 2 SCC 788 (1973) 2 SCR 757.

1.4 Very narrow and stringent limits have been set to permissible legislative
abridgement of the right of free speech and expression, and this was doubtless due to
the realisation that freedom of speech and of the press lay at the foundation of all
democratic organizations...." as held in Romesh Thappar v. State of Madras, 1950 SCR
594. It is the duty of the court to uphold and interpret the constitutional validity of a
statute or section which is directly abridging the fundamental right of freedom of
speech and expression.

1.5 "Where a law purports to authorise the imposition of restrictions on a fundamental

right in language wide enough to cover restrictions both within and without the limits
of constitutionally permissible legislative action affecting such right, it is not possible to
uphold it even so far as may be applied within the constitutional limits, as it is not
severable. So long as the possibility of its being applied for purposes not sanctioned by
the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and
void. ... an enactment, which is capable of being applied to cases where no such danger
would arise, cannot be held to be constitutional and valid to any extent." As held in
Romesh Thappar v. State of Madras, 1950 SCR 594 at 603. It is indisputable that by
freedom of the press is meant the right of all citizens to speak, publish and express their
views. The freedom of the press embodies the right of the people to read. The freedom
of the press is not antithetical to the right of the people to speak and express." As laid
down by the Supreme Court in Bennett Coleman & Co. v. Union of India, (1972) 2 SCC
788: (1973) 2 SCR 757.

1.6 There is nothing in clause (2) of article 19 which permits the state, to abridge this
right on the ground of conferring benefits upon the public in general or upon a section
of the public. It is not open to the State to curtail or infringe the freedom of speech of
one for promoting the general welfare of a section or a group of people unless its action
could be justified under a law competent under clause (2) of Article 19." As held Sakal
Papers (P) Ltd. v. Union of India, (1962) 3 SCR 842 by the Supreme Court.

1.7 Restrictions which can be imposed on freedom of expression can be only on the
heads Specified  in Article 19(2) and none other. Restrictions cannot be imposed on the
ground of rest of general public" contemplated by Article 19(6) as laid down by the
Supreme Court in Sakal Papers (P) Ltd. v. Union of India. (1962) 3 SCR 842.

Section 66-A suffers from the vice of vagueness under Article 19(1)(a).

2.1 Section 66-A also suffers from the vice of vagueness because expressions mentioned
in convey different meanings to different persons and depend on the subjective opinion
of complainant and the statutory authority without any objective standard or norm this
has been rightly laid down in State of M.P v. Baldeo Prasad, (1961) 1 SCR 970.  In that
context enforcement of the said section is an insidious form of censorship which is not
authorised by the constitution. There are numerous instances about the arbitrary and
frequent invocation of the said section which highlights the legal infirmity arising from
uncertainty and vagueness which is inherent in the said section. The said section has a
chilling effect on freedom of speech and expression and is thus violative of Article 19(1)
(a). In R.Rajagopal v. State of T.N. (2010) 5 SCC 600 it was held that Freedom of speech
has to be viewed also as a right of the viewers which has paramount importance, and
the said view has significance in a country like ours

2.2 It is not correct to suggest that Section 66-A was necessitated to deal with the
medium of the internet. Offences under the Penal Code (IPC) would be attracted even
for actions over the internet. In particular, Sections 124-A, 153-A, 153-B, A, IPC, it is
submitted, suffice to cover the situations which are being used by the Union of India as
illustrations to justify the existence of Section 66-A on the statute. The aforesaid IPC
offences take into consideration any or every medium o expression. As long as written
words are within its ambit, merely because they are written on a public medium on the
internet would not take such actions beyond their purview, especially in view of Section
65-B of the Evidence Act,1872.

2.3 Furthermore, assuming without admitting that Section 66-A was necessitated to
deal with the medium of the internet, the standards for restricting the same would still
have to conform to Article 19(2). The standards for every medium cannot be drastically
different as that would be violative of Article 14. There is no intelligible differentia
between an expression on the internet and that on a newspaper or a magazine, for the
purposes of Article 19(1)(a) read with Article 19(2).
Section 66-A does not pass the test of reasonableness under Article 19(2).

3.1 Furthermore, the question of reasonableness of the restrictions arises when

restrictions imposed are on heads specified in Article 19(2). If restrictions imposed are
outside the prescribed heads they are per se unconstitutional and alleged
reasonableness of restrictions cannot cure the fundamental constitutional infirmity.
Constitutionality of a statute is to be adjudged on its terms and not by reference to the
manner in which it is enforced. "The constitutional validity of a provision has to be
determined on construing it reasonably. If it passes the test of reasonableness, the
possibility of powers conferred being improperly used, is no ground for pronouncing it
as invalid, and conversely if the same properly interpreted and tested in the light of the
requirements set out in Part III of the Constitution, does not pass the test, it cannot be
pronounced valid merely because it is being administered in the manner which might
not conflict with the constitutional requirements." [See Kantilal Babulal & Bros. V. H.C.
Patel, (1968) 1 SCR 735 at 749; Collector of Customs v. Nathella Sampathu Chetty, AIR
1962 SC 316 at 331, 332.] "A bad law is not defensible on the ground that it will be
judiciously administered." [See Knuller Ltd. v. DPP (1972) 2 All ER 898 at 906(b).]

3.2 The crux of the matter is: can the exercise of the invaluable fundamental right of
freedom of expression be subject to or be dependent upon the subjective satisfaction of
a non-judicial authority and that too in respect of vague and varying notions about
"grossly offensive", as "menacing character" and causes "annoyance", inconvenience,
insult and injury.

3.3 The impugned heads of restrictions are inextricably linked with other provisions of
the said section and are not severable. Hence, the entire Section 66-A is
unconstitutional. When referring to doctrine of severability as held in R.M.D.
Chamarbaugwalla v. Union of India, 1957 SCR 930.